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Constitutional Crises and Constitutional Systems

November 30, 2008

The Globe’s Norman Spectre asks: is Canada heading toward a constitutional crisis? Harper’s Conservative Government, which has just recently been returned to power with minority status in October, has aroused the ire of the opposition parties in its proposed “economic update”. First, Harper has failed to offer many new ideas about how to deal with the global economic crisis as it has impacted on Canada. Second, the Conservatives have proposed to cut public funding for federal political parties. Essentially, each party gets a fixed amount of federal dollars for every vote earned in a federal election. By eliminating these subsidies, Harper would seriously weaken all three opposition parties, particularly his chief rivals, the Liberals.

The Prime Minister, however, has perhaps fatally misjudged the disposition of the opposition parties right now. Rather than showing leadership, critics say, he has opted for political games and brinkmanship. Now, there are talks between the Liberals, Bloc and NDP to vote no confidence in the government and ask the Governor General to allow them to form a governing coalition, effectively ejecting the Conservatives from government without an election.

Of course, constitutional experts debate the appropriateness of such a course of action. Apparently, Canadian history offers some precedent. In 1926, then Gov. Gen. Lord Byng invited Conservative Arthur Meighen to form government after Prime Minister Mackenzie King lost a confidence vote soon after an election.

That may be precedent, but the Byng-King affair has not escaped sharp criticisms from historians, political scientists, and legal scholars. Many have suggested Lord Byng acted undemocratically. Indeed, the optics of an unelected figurehead such as Gov. Gen. Jean — a figurehead for our former colonial mother country — deciding the fate of our elected government is unsettling, to say the least.

So the stakes are high. The lines have been drawn. And the arguments familiar. But Canadians do not know yet where this all might take us. Yet, the question that the country must ask itself in the months ahead – if stability is restored – is how we can avoid this problem again? Will this finally be the time for further fundamental constitutional reform to change to a republican form of government? Or is something less significant warranted, like a few Parliamentary reforms? Now may also be the time to start looking elsewhere for guidance, to engage other countries likewise searching for answers. Australia, for one, has at least asked these questions, despite no resolution so far.

Indeed, for what has always seemed to us to be a quaint vestige of our former colonial status – the role of the Governor General and the need for the Prime Minister to “request” her to dissolve Parliament – now seems like the linchpin for our entire constitutional system.

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