Democratizing the Constitution: Reforming Responsible Government (review)

Reviewed by: Democratizing the Constitution: Reforming Responsible Government Dave Snow Democratizing the Constitution: Reforming Responsible Government by Peter Aucoin, Mark D. Jarvis, and Lori Turnbull. Toronto: Emond Montgomery, 2011. 250 pp. Paper $32.00. It is often said that Canadian government works in practice, not in theory. Unlike our neighbours to the south, with their endlessly codified rules and procedures, the Canadian regime’s efficacy depends in large part on unwritten conventions and norms. Our Constitution barely mentions the prime minister or responsible government, yet the prime minister rules and responsible government prevails. So goes the typical refrain. However, according to the late Peter Aucoin, Mark D. Jarvis, and Lori Turnbull, Canadian government no longer works in practice. In Democratizing the Constitution, they point to several high-prolife events—the broken fixed-election date legislation, the 2008 Liberal-NDP coalition, and the questionable use of the power to prorogue Parliament—that have been shrouded in political controversy and academic uncertainty. All these problems, the authors profess, stem from the centralization of power in the hands of a prime minister who, unconstrained from acting in “bad faith,” can summon, prorogue, and dissolve Parliament at will. The solution is to move away from constitutional conventions—the unwritten rules that inform Canada’s system of responsible government—and shift power to the House of Commons through a series of codified reforms over which constitutional experts can share “clear and unambiguous” consensus. In short, the solution to Canada’s democratic deficit is a good deal more theory. The authors advocate four primary constitutional reforms. First, Parliament must be summoned within 30 days of an election. Second, prorogation can only occur with the support of two-thirds of the House of Commons. Third, parliamentary terms should be set at four years, effectively institutionalizing the fixed-election legislation Prime Minister Stephen Harper ignored in 2008. An intervening election could only occur if two-thirds of MPs voted to go to the polls. Finally, and most radically, the opposition can only bring down the government with a vote of “constructive non-confidence,” through which it must identify a new prime minister who is willing to form a new government with the support of a majority of the House. Cumulatively, these reforms would constrain the prime minister’s ability to abuse the governor general’s powers for partisan gain, and reduce the frequency of elections in both minority and majority government settings. In the wake of the constitutional confusion that marked Canada’s recent experience with minority government, Democratizing the Constitution is a welcome scholarly contribution. It treats institutions seriously and uses comparative material effectively, particularly through its discussion in Chapter 4 of Canada’s parliamentary cousins Australia, New Zealand, and the United Kingdom. Nevertheless, it is not without its shortcomings. One is its desire to do away entirely with the governor general’s discretion and replace it with “firm rules” to guide political behaviour. The authors claim constitutional conventions have become “meaningless,” while the governor general’s flexibility has “never been anything more than the discretion of the prime minister” (pp. 248, 149). This simplistic account devalues the governor general’s actual powers by relying too heavily on recent events. Because Governor General Michaëlle Jean accepted Prime Minister Harper’s requests for dissolution and prorogation, the authors assume she had no choice in the matter. But consent does not amount to a rubber stamp. Scholarly disagreement over these powers remains, and it is not enough to simply assert that those powers do not exist based on a select few events. The authors’ proposals place blind faith in codified rules at the expense of flexibility that might prove crucial in future controversies. Moreover, they do not address the fact that codifying these reforms would inevitably lead to judicial review of political conflicts in Parliament—the replacement of one form of “undemocratic” oversight with another. Our [End Page 114] traditions of responsible government ought not be abandoned so lightly. In this vein, the authors’ most controversial reform, constructive non-confidence, would certainly have limited the governor general’s discretion and installed the Liberal-NDP coalition as the new government in December 2008. It would also entrench a system...

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