New at Free Will: Those Crazy Canadians with Jacob Levy

If you’re like me, you feel like you should know more about Canadian politics, but never bother to find out, maybe because you suspect that Canadian politics is not very interesting. Well, it’s sure interesting now! Our friends in the land of “toques” and “chesterfields” are having a constitutional crisis! Say what? How did that happen? Ace political theorist Jacob Levy — who is not Canadian, but teaches at McGill in Montreal and grew up in New Hampshire, which is physically near Canada — explains all with exemplary lucidity.

[Update: In other crazy Canada news, the front page of the Ottawa Citizen online reports: "Barenaked Ladies concert postponed." I think it's pretty clear by now that all hell's breaking loose up there. ]

17 thoughts on “New at Free Will: Those Crazy Canadians with Jacob Levy”

Jacob pretty much nails what happened.

Note though that the Dion video mess was likely a hit job by Ignatieff's guys: the videographer was sent in to do the worst possible job.

I would add to that hell is specifically breaking loose in Ottawa where we've had a foot of snow combined with a transit strike all during the exam period. Constitutional crisis is just the start of it. As for the Barenaked Ladies concert; Neil Young already performed on December 5th so personally I'm not really that disappointed about it.

Will,

Could it be that the poodle was so named because of the initials of Pierre Elliot Trudeau?

This was good, but Levy's knowledge of the GG's reserve powers is weak. He claimed that in Canada governments don't change without elections. This is true in general, but the GG's reserve powers allow the Crown to hand power to the opposition if they can command the confidence of the house (in other words, there is nothing “constitutionally strange” about it). It happened in 1925/1926 (the King-Byng crisis).

Also, the GG is not appointed by the Queen. The power of appointment is now in the hands of the Prime Minister. So England/Britain has nothing to do with it (save formally).

Re Harper – he used to be a pretty consistent free marketeer – he headed up an advocacy group after he left politics in the early 90s and was a substantial critic of socialized medicine and Canadian statism in general. Alas, he has really changed his tune since taking office.

Craig isn't quite right about the appointment of the Governor General. The Queen does make the appointment, albeit on the “advice” of the Prime Minister. Of course, the Queen will almost always take that advice, but the situation could arise where a rogue Prime Minister tries to get the Queen to fire the Governor General before the Governor General fires him/her, and the Queen might refuse. Whitlam thought about getting the Queen to fire Kerr, but in the end didn't make the call. Rumor has it that she would have fired Kerr if so requested, but it is possible to imagine circumstances where she wouldn't. (PM found guilty of serious offence, own party wants to get rid of him, asks GG to prorogue or dissolve, GG refuses, PM asks Queen for dismissal of GG).

Excellent video. I seriously had no idea that any of this was happening. The news media here are just not interested in stories about Canadian politics, even when Canada is having a political crisis. But every time I see canadian news, half the stories are about America.

On appointment, I think Pithlord's relevantly right. Who has de jure authority matters, when push comes to shove. We say that the PM can call a new election, but de jure it's the GG– and we've just seen that the difference can matter. Similarly, we say that the PM appoints (and dismisses) the GG, but in the kind of circumstance Pithlord describes (or in the '75 Aussie crisis to which he refers) the Queen's de jure authority matters. If Jean had been clearly opposed to proroguing, one could easily have imagined Harper seeking her dismissal– and, not yet having been voted confidence by the House, he arguably lacks the legitimacy to do so, especially if he was sacking her precisely in order to avoid a confidence vote. The various Westminster conventions work smoothly together in normal times, but in extraordinary times (precisely when reserve powers come into play) they might not.

Thanks for the correction, Pithlord. I was reacting to the claim that the Queen still played an active role in our governance, when de facto that power is exercised by a political appointee of the PM (unlike, of course, in King-Byng, when the former made great sport of the fact that the latter was appointed in England).
Jacob – could we not craft a series of statutory rules (like the ones for fixed elections) which would remove the discretion in these matters from the Crown? I have been talking to Adam Tomkins (Scotish law prof) who argues that all prerogative can and should be stripped out of the British constitution (including that of the cabinet). It struck me that all the commentary in the Canadian papers was about what the reserve powers were and whether they were democratically legitimate; and there was almost nothing on possible reforms to the system (short of republicanism).

Craig, the federal government did put forward a proposal to codify the reserve power in 1978. The provinces all objected, on the grounds that there would inevitably be some discretion and it was better exercised by the GG than by the courts. Bush v. Gore convinces me they were right.

However, I do think we should follow the Australian model and require the PM to make requests for prorogation/dissolution in writing, with publicly-available reasons, and have the GG make her decision with reasons as well.

Thanks, Pithlord. I realize you can't get rid of discretion entirely, but some statutory rules would be better than the status quo.

I think there's a slight overstatement by Levy of the importance of government crystallizing by being asked to form the government or first sitting in Parliament. I never heard the idea bruited that a coalition would have been more acceptable if suggested earlier in the process. While Canada itself has not done coalitions in the past, the Commonwealth Parliamentary traditions are fairly clear that if a minority government loses the confidence of Parliament early in its term, there is no precedent for the Queen's representative denying the party (or parties) with the second-most seats an opportunity to form the government where it appears to have a viable chance. The fact is that minority Parliaments have an inherent possibility for re-forming into different permutations of power, regardless of whether the government has formally seized the reins of power.

But otherwise, an excellent summary of the crisis, although the role of Dion's amateur response appears overstated. I suspect that Jean's decision to prorogue Parliament had more to do with the widely suspected personal animosity between her and Harper, leading to a need to be perceived as fair to him. If she had refused him, it would have been interpreted by the Tories as flowing from personal and perhaps political bias and threatened her credibility as GG. Indeed, the continuation of the constitutional monarchy would probably become less likely with the reaction of western Tories to the GG “taking sides” against them. The Australian example shows that republican movements take off in these sorts of circumstances, when the GG seems too active.