This is an archive of news stories and research from the National Union of Public and General Employees. Please see our new site - https://nupge.ca - for the most current information. 


A time to listen to the wisdom of Eugene Forsey

Defeating a government doesn’t have to trigger an election
By Helen Forsey


 

Note: Eugene Forsey was Canada's most knowledgeable voice on constitutional affairs until his death in 1991. His views on complex constitutional questions continue to provide valuable guidance, especially in the crisis facing the country today. Helen Forsey looks back at what her esteemed father had to say about minority government and the constitutional powers and responsibilities of the Governor General. I urge everyone to read this timely essay.
James Clancy, President, National Union of Public and General Employees


 


Eugene Forsey was Canada's most knowledgeable voice on constitutional affairs for many decades. His wisdoms remains valid today and speaks directly to the constitutional crisis now facing Canada. Helen Forsey looks back at what her esteemed father had to say about precisely the same circumstances Canada finds itself in today. I urge you to read this valuable essay.

"One of the biggest threats to parliamentary democracy in Canada,” wrote the late constitutional expert Senator Eugene Forsey, “is the dogma that any government, regardless of circumstances, always has a dissolution in its pocket: that an appeal to the people is always proper.”

My father was writing in 1953, but over half a century later Canadians are again being held hostage to the false notion that a government can never be defeated in the House of Commons without triggering an election.

After our recent futile trip to the polls, we were a country massively frustrated and disillusioned with our own politics. Few seemed to realize that our Constitution allows the Governor-General, in certain circumstances, to refuse to dissolve Parliament and instead call on another party in the existing House of Commons to try governing.

Now, to Harper’s dismay, that constitutional safeguard is being invoked. The opposition parties – collectively a majority in this Parliament as in the last – are planning to call his bluff and vote to defeat his government. The Governor-General, rather than automatically granting a dissolution and plunging us into yet another election, can and should then ask the leader of the Opposition to form a cabinet and seek the support of the House to govern. All the more reason for her to do this if the opposition parties have already agreed to form a coalition, or at least to work closely together.

Sensible and balanced

“The Canadian Constitution very sensibly allows governments to appeal from Parliament to the people when the public interest so requires,” Eugene Forsey wrote. “But it does not follow that it provides no means of protecting fundamental democratic rights against abuse of these powers. It does; and the means is the reserve power of the Crown as guardian of the Constitution.”

Rather than simply being a rubber-stamp for the Cabinet in office, he explained, the Crown, with its “reserve” power to refuse its ministers’ advice, may be all that prevents an autocratic government from “spanking the electorate into submission” by repeatedly forcing them back to the polls.

“Suppose the government gets a dissolution, and no one gets a clear majority,” he wrote. “The government retains office and meets the new Parliament - as it has a perfect right to do - hoping to pick up enough votes to keep it in power. But the new Parliament defeats it. It declines to resign; governments don’t automatically resign on defeat. Instead, it asks for a second dissolution, and upon a further defeat in the ensuing Parliament, a third, and so on, until the electors give in or revolt.”

My father’s example of this approach came from 1926, when Prime Minister Mackenzie King accused Parliament of having “ceased to be in a position to make a satisfactory decision” about who should govern. It could equally well have been Stephen Harper in 2008, denouncing a “dysfunctional” Parliament that “wasn’t working.”

Preventing 'a travesty'

Both meant the same thing: a Parliament which failed to do the Prime Minister’s bidding.

And for both men, the prescription was the same: get the Governor-General to dissolve the unsatisfactory Parliament and call another election. Harper’s latest twist may be to ask the Governor-General to prorogue Parliament before it has a chance to turf him out.

My father called this “a ‘heads I win, tails you lose’ theory of the Constitution, [bearing] not the faintest resemblance to parliamentary government.”

Harper’s minority Conservatives spent their first term in office systematically sabotaging the work of multi-party committees, used Orders-in-Council to avoid Commons debate and defy the law, and took the art of parliamentary bullying to new heights by declaring every government bill a matter of confidence, daring MPs to defeat it. Last week he went even further, thumbing his nose at his fellow Parliamentarians and the people who elected them. The opposition majority has now said “Enough.”

The government calls the opposition’s plans “undemocratic.” Not according to Eugene Forsey. “It is the rubber-stamp theory which is undemocratic,” he wrote. “It makes existing governments irremovable except by their own consent. Such a doctrine is a travesty of democracy. It delivers every Opposition gagged and bound into the hands of any jack-in-office.“

Correct counterbalance

Opposition MPs now realize that the ropes they thought bound them aren’t even knotted. Responding to an overwhelming groundswell of public support, they are working together to provide us with a democratic alternative to Harper’s cynical game-playing. That the Crown’s reserve power exists is key to counteracting the paralyzing sense of helplessness that
until recently made Canadians pawns in those political games.

For the sake of democracy itself, the Governor-General must exercise her constitutional
right to refuse any request from Harper either to dissolve Parliament or prorogue it. If she simply knuckles under, the public outcry should be so loud that Eugene Forsey will rise from his grave to join the protests.

Writer and activist Helen Forsey is a daughter of the late Senator Eugene Forsey.

Guest Commentaries