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Prorogation, Dissolution, and the Vicissitudes of Minority Government

David Schneiderman
Thursday, December 11, 2008

There is a disturbing trend in much of the commentary precipitated by the events of the last two weeks culminating in Governor General Michaël Jean’s decision to prorogue Parliament. Much of the commentary rightly notes that the decision to prorogue, and even to dissolve Parliament, is a prerogative and, therefore, a matter of discretion that rests solely with the Governor General. Most commentators appear to agree that this discretion enables the Governor General to actively intervene in Canadian political life, the only question remaining is in what direction. At that point, political preferences usually enter into the discussion and determine the way in which that discretion should be exercised.

Yet it should be apparent that the Governor General is expected to steer clear of political controversies and so should exercise her discretion in ways that minimize her meddling in Canadian Parliamentary affairs. The Governor General should be guided less by the dictates of political partisanship, then, and more by the principles of democracy and responsible government. The Governor General’s actions should be guided principally by considerations that do the utmost to respect the will of Parliament and, ultimately, the people. It is Parliament which, conveniently for the Governor General, is the barometer of the people’s will as expressed periodically through the electoral process.

Lessons From Our Most Recent “Constitutional Crisis”

Wednesday, December 10, 2008

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist Peter Russell.

Constitutional conventions
This has been a period of great uncertainty about some of the “unwritten” conventions of our constitution. Most of the principles and rules about operating our system of parliamentary democracy take this form. In the final analysis what these principles and rules are depends on all of us – on the people – so it is certainly good to see you who are here today and so many others concerned about these issues.

Constitutional Crisis or Democracy in Action

Tuesday, December 9, 2008

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist David Cameron.

I’ll be brief. I see no reason to take more time than Stephen Harper did in his weirdly pointless address to the nation on Wednesday night.

I will make four points, none of them on topic. When I initially agreed to speak I was told the subject would be something like “constitutional crisis or democracy in action?”, to which I probably would have answered both.

But as the planning for the session evolved, and events proceeded, the topic morphed into “Was the Governor General’s Decision to Prorogue Parliament Constitutional?” or something like that. To which I would probably answer yes and no.

However, since I expect my eminent legal colleagues to cover that topic like a blanket, I thought I would turn to something else, to some observations on the politics and implications of what the country is going through.

Four points.

Was the Governor General's Decision to Prorogue Parliament Constitutional?

Lorne Sossin
Tuesday, December 9, 2008

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist Lorne Sossin.

In light of the presentations, questions and comments on the panel, there are three broad constitutional principles imperiled by the recent decision by the Governor General to prorogue Parliament and its fallout:

Was the Governor General's Decision to Prorogue Parliament Constitutional? Canada's Leading Scholars Weigh in on this Historic Ruling

Tuesday, December 9, 2008

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The panel included leading constitutional scholars and politicians.

Many of the participants have expressed an interest in continuing the discussion, and will be posting a summary of their remarks from the panel directly to the faculty blog.

A webcast of the panel is now available: click here to view the webcast
Information regarding the panelists can be found here.

 

Fight Bad Speech With Good Speech

Ed Morgan
Wednesday, November 12, 2008

This commentary was published in the National Post on November 4, 2008. It was originally published in Canadian Jewish News.

In recent months, I have been invited to participate in two conferences, one put on by the Ontario Bar Association (OBA) and the other by Osgoode Hall Law School. Both are squarely in my fields -- the former dealing with freedom of speech and human rights law, and the latter dealing with law, democracy and the Middle East conflict. I was pleased to be invited -- what more does a professor want than to pontificate to audiences in his field? My problem is that each of these conferences has demonstrated that, contrary to my preferred self-image, I can occasionally be wrong.

The OBA's conference, which explored the recent human rights case against writer Mark Steyn and Maclean's magazine, showed that my views on the regulation of hateful speech may have been misguided. The Osgoode Hall conference, which posed the question "Israel/Palestine:One State or Two?" showed that my faith in rational dialogue and academic debate may also have been misguided.

Let me examine each of them in turn.

YES: PR is More Democratic

David Beatty
Friday, November 7, 2008

This commentary was first published in the Toronto Star on November 1, 2008.

The days and weeks following a national election are invariably a time of reflection and recrimination.

The Liberals in particular are in for a period of intense soul-searching as they begin yet another leadership campaign.

But it is not only Liberals who should reflect on the recent election.

All Canadians should be disturbed by the results because once again we have gone to the polls and ended up with a government that almost two-thirds of the country opposes.

The flaws in this election go way beyond party politics and political egos. The way we count votes and award seats in the House of Commons, it turns out, deserves much more of the blame.

The fact is that Liberals suffered more from the Canada Election Act than anything Stéphane Dion said or did. Even though the Liberals trailed the Conservatives by only 12 percentage points in the popular vote (38-26), they got barely half as many seats (143-76).

If seats had been awarded to the parties in the same proportion as the votes they received, the Conservatives would have won 116 compared to 80 for the Liberals.

Promotion of Federally Appointed Judges and Appointment of Chief Justices: The Unfinished Agenda

Jacob Ziegel
Thursday, November 6, 2008

The following paper is a chapter in a book on JUDICIAL INDEPENDENCE, edited by Lorne Sossin and Adam Dodek, and expected to be published by the University of Toronto Press in 2009. The paper will also be discussed at a Faculty Seminar to be held on November 24, 2008. Comments and suggestions will be very welcome.

 

Reform Needed in Selection System for Supreme Court Judges

Jacob Ziegel
Wednesday, September 17, 2008

This commentary was published in the National Post on September 11, 2008.

In the spring of this year, the government established an advisory committee to assess candidates to fill the vacancy left on the Supreme Court of Canada by the resignation of Justice Michel Bastarache. Unfortunately, the committee has fallen victim to infighting between government and opposition. The squabbling has been used as an excuse by the Prime Minister to bypass the committee altogether and to unilaterally nominate Justice Thomas Cromwell of the Nova Scotia Court of Appeal in a clear departure from the selection procedure announced by Justice Minister Rob Nicholls on May 28.

Even so, since the nomination must also run the scrutiny of yet another House of Commons committee -- which cannot be established till after the election-- it is clear that the vacancy on the Supreme Court will not be filled till late this year at the earliest, and probably not till early 2009. As Canada’s most senior court, with a heavy case load and awesome responsibilities, the court surely deserved better treatment. We are also entitled to ask: How could the selection procedure have become so distorted and what can be done to avoid the same thing happening in the future?

Is Bigger Always Better? On Optimal Panel Size with Evidence from the Supreme Court of Canada

Benjamin Alarie
Wednesday, August 20, 2008

I have recently posted a new paper on SSRN entitled, Is Bigger Always Better? On Optimal Panel Size, with Evidence from the Supreme Court of Canada. It is work coauthored with Andrew Green and Ed Iacobucci.  In the paper we model how panel size should be determined by High Courts that provide for this kind of flexibility (and most do).  Our model supports the following predictions: (a) all else the same, more important appeals should be heard by larger panels; (b) all else the same, very easy and very difficult appeals should be heard by smaller panels; and (c) all else the same, appeals of intermediate difficulty should be heard by the largest panels.  We find that the predictions of our model are borne out by an analysis of the panel assignments at the Supreme Court of Canada from 1984-2005.

 

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