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Web Exclusive: Prorogation Debate

|Written By Kelly Harris

Governor General Michaëlle Jean’s agreement to allow Prime Minister Stephen Harper to prorogue Parliament last week may have created a dangerous precedent for future governments, says University of Ottawa law professor Errol Mendes.

Mendes, who served in the privy counsel office for both Harper and former prime minister Paul Martin and is editor-in-chief of Canada’s leading constitutional law journal, The National Journal of Constitutional Law, says the suspension of Parliament cuts to the core of Canadian democracy and may wipe out the very notion of responsible government.

“This is a historic legal constitutional precedent that has been set that is in my view, extremely dangerous for Canadian parliamentary democracy,” he says. “It makes a precedent for future prime ministers . . . [that being] every time they are in trouble is to point to this precedent and say this is how I can get out of it.”

Mendes says that he is also troubled by the seeming lack of understanding that Canadians do not elect governments, rather they elect individual members of Parliament that go on to form governments. Those governments are then responsible to the House of Commons and the members of that house must support the government in order for it to survive.

In this case, no vote of confidence had been held to show that the governing Conservatives had lost the support of the house. However, a vote on the economic update scheduled for Dec. 8 was likely to fail. The Governor General had received a letter from the Liberal and NDP coalition saying it had the support of the Bloc Quebecois and would defeat the government. The letter went on further to say it wanted to then form a government. There is no indication that Jean spoke to any other members of the House before making her decision, though media reports said meetings were requested

What makes the decision even more troubling says Mendes is that in allowing for the halt of Parliament, the Governor General “did not seem to lay any conditions on the grant of prorogation.”

Whether or not there were conditions may be the key to the entire constitutional issue, says David Smith, retired political science professor emeritus from the University of Saskatchewan. However, he allows that because nothing has been made public Canadians may never know if there were any conditions placed on the Tories.

Smith says he expects Harper’s conversation with Jean centred on the idea that upon return to the House, the government would lay out a budget. Far from being a crisis, Smith says the choice to prorogue was likely a less “controversial one” than a decision that would have supplanted the government.

“I presume those are the things that he might have said to her,” he says, of the commitment to bring a new budget. “Now if she says no then presumably [the prime minister would] say ‘I’ll have to resign once you have another government in place,’ and that’s a big deal.”

Smith, who wrote The Republican Option in Canada: Past and Present in 1999, says there may be cases for proroguing Parliament that need to be open to governors general and prime ministers. So to say no out of hand or limit a government’s ability may also be dangerous. One such case may be in the event of a terrorist attack.

“Why would you want to limit yourself?” he says. “The monarchial system in theory has always been championed because it creates all this flexibility and non-conformity."