“As Canadian university professors dedicated to educating students about democratic institutions, we are deeply concerned by Prime Minister Stephen Harper’s decision to use his power to prorogue Parliament for a second year in a row in circumstances that allow him to evade democratic accountability.”
So begins an open letter written by Daniel Weinstock, a philosophy professor at the University of Montreal, that was published in several newspapers on Jan. 11.
The letter was signed by more than 200 university professors from a variety of academic disciplines, including political science, history, education, sociology, anthropology, and, of course, law. I was one of a number of law professors who signed this letter. Why, it might be asked, would law professors join this co-ordinated academic attack on the prime minister’s prorogation decision?
I can only speak for myself but I signed the letter because I agreed with Weinstock’s conclusion that the move to shut down Parliament until March was a “nakedly partisan” manoeuvre that permits the government to avoid accounting for its handling of allegations concerning human rights abuses in Afghanistan.
Although I believe that academics shouldn’t use their privileged positions to engage in partisan politics, I concluded that the position the letter advances in defending democratic values wasn’t just a viewpoint academics may express publicly but one that we have a certain duty to speak about. While the letter engages in political discourse, the issue is one of political morality, not of political power.
These are reasons why any university professor concerned about democratic governance might have signed the letter. Are there reasons above and beyond defending the political value of democracy that would prompt a law professor to sign it? The question is a valid one.
After all, in his letter Weinstock acknowledges the general consensus among observers that Harper did nothing “technically wrong” when he requested an order proroguing Parliament. By constitutional convention, the authority to advise the governor general in the exercise of prerogative powers relating to such matters does indeed lie with the prime minister.
If Harper did nothing technically - or, by extension, legally - wrong, then it may be thought that law professors have nothing further to add to the debate. The issue is one of political morality and democratic legitimacy, not of law or legality.
I think this position is deeply mistaken. “In our constitutional tradition,” to quote the Supreme Court of Canada from its opinion in the Quebec secession reference, “legality and legitimacy are linked.” It was in that opinion that the court affirmed that the principle of democracy is not just central to our political culture but is also one of the unwritten foundational principles of law upon which our written Constitution is constructed.
Indeed, the court went so far as to say that in certain circumstances, these unwritten constitutional principles might have full legal force binding upon governments. In our legal tradition, questions of legality and political morality are intimately connected, and when a prime minister does anything that is arguably undemocratic, he or she has done something that is arguably unlawful.
Of course, it doesn’t follow that every undemocratic act by a prime minister is open to challenge in the courts. The rules that govern the exercise by the governor general of those key prerogative powers regarding who will form the government and when Parliament will sit have long been assumed to form part of a body of customary norms that A.V. Dicey famously called “constitutional conventions.” Of course, Dicey insisted, and our Supreme Court has agreed, that conventions are not judicially enforceable.
The gist of these conventions is that decisions about governance made by the Crown pursuant to the royal prerogative may only be made upon the advice of ministers of the Crown who enjoy the confidence of the elected members of Parliament. In other words, the Crown’s powers are controlled by ministers who are, in turn, controlled by the people. Harper had the confidence of the House of Commons when he advised the governor general to prorogue Parliament, and so, it is said, the relevant constitutional rules were technically satisfied.
Nevertheless, the legal concerns raised by the prorogation of Parliament, like the legal concerns raised by any hard case, don’t stop at the level of technicality. The episode gives rise to complex questions about Canadian constitutionalism in response to which, in my view, members of the legal community generally and legal academics in particular have much to offer by way of analysis.
First, while the historical focus of scholars who examine conventions has been on the ways in which they ensure that kings and queens obey prime ministers, the other links in the chain of normative reasoning offered by Dicey, in particular the links between the prime minister, the supremacy of the House of Commons, and in turn the sovereignty of the people, can’t be forgotten.
These links are integral to the normative coherence of the convention as a constitutional rule. There is good reason to think that a prime minister who uses the convention to undermine rather than uphold the supremacy of elected members of Parliament has violated the convention.
Second, it’s time to acknowledge that the bright line Dicey drew between law and convention doesn’t exist in Canada. The unwritten principle of democracy that underlies the conventions about how Crowns and prime ministers ought to behave is, within the Canadian constitutional context, a fundamental principle of law.
Conventions may not be judicially enforceable but they are constitutional rules that must be seen as susceptible to legal analysis and legal argument. The alternative is unthinkable. We would have a lawless hole at the very heart of our constitutional order. Did Harper’s decision to request prorogation of Parliament violate unwritten principles of Canadian constitutional law? That is, I think, a fair question and one about which law professors, among others, should have something to say.
Mark Walters is a professor and associate dean at the Queen’s University Faculty of Law. His research focuses on constitutional law, legal history, and aboriginal rights.
