Go searching for the last time a Westminster-style parliament was shut down to free its leaders from unwanted censure or scrutiny — and you'll end right back in Canada, where you started.
It turns out, no other English-speaking nation with a system of government like ours — not Britain, Australia or New Zealand — has ever had its parliament prorogued in modern times, so that its ruling party could avoid an investigation, or a vote of confidence, by other elected legislators.
Only three times has this happened, all in Canada — first in 1873, when Sir John A. Macdonald asked the governor general to prorogue Parliament, in order to halt a House of Commons probe into the Pacific Scandal. Lord Dufferin gave in to the demand, but when Parliament reconvened Macdonald was forced to resign.
No prime minister dared use prorogation to such effect again, until Stephen Harper convinced Gov. Gen. Michaelle Jean to suspend Parliament in 2008, so the Conservatives could evade a confidence vote.
About 12 months later, he did it again.
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But as Ned Franks points out, the strength of the federal government — and the prime minister's own authority — must flow through Parliament. If Parliament is weak, and if the prime minister ignores its members and tries to rule without their consent, then his legal right to govern evaporates.
In a Westminster system, this is Parliament's core democratic function — to legitimize executive power.
King Charles I learned this lesson the hard way more than 300 years ago, by trying to govern without the English Parliament's consent. When he finally dismissed it, political opponents responded by cutting off his head.
"By shutting down Parliament all by himself, Harper is acting in muchthe same fashion," says Franks. "We should call him King Stephen the First of Canada, for that, in effect, is the way he is behaving."
PM creates 'dictatorial environment' by shutting down Parliament
Peter Tinsley says the latest confrontation between the opposition and the government over the detainee issue could lead to a 'crisis' in Canada's system of government.
By TIM NAUMETZ
Published January 11, 2010
Prime Minister Stephen Harper's decision to prorogue Parliament for two months has added to a "dictatorial environment" that took root during a military police watchdog inquiry into the fate of Afghanistan war detainees and a Commons inquiry into the same controversy, says the former head of the Military Police Complaints Commission.
Former commission chair Peter Tinsley, whose tenure Prime Minister Harper (Calgary Southeast, Alta.) declined to renew last month when the commission was locked in a battle with the government over access to witnesses and documents, said the latest confrontation between the opposition and the government over the detainee issue could lead to a "crisis" in Canada's system of government.
Mr. Tinsley said in an interview with The Hill Times one of the country's democratic foundations—the supremacy of Parliament—is at stake in the unprecedented standoff.
As public rejection grew last week over Mr. Harper's decision to ask Governor General Michaëlle Jean to end the Parliamentary session on Dec. 30, Mr. Tinsley appeared to have little doubt the move was primarily aimed at removing the opposition's ability to continue to probe allegations of detainee torture through a special Commons committee on the Canadian mission in Afghanistan.
The committee launched an inquiry into the torture allegations after the government began challenging the Military Police Commission inquiry in Federal Court and invoked the Canada Evidence Act to prevent testimony from a key witness who served with the Foreign Affairs Department as a political affairs officer in Kandahar.
The suspension of Parliament also allows Mr. Harper to delay a confrontation in the Commons over a motion the opposition majority passed ordering the government to disclose evidence, in the form of redacted and undisclosed military and government documents, that could prove or refute allegations by the Foreign Affairs officer that the government attempted to suppress his warnings detainees Canadian troops transferred to Afghan civil and secret police were likely tortured.
Mr. Tinsley said the sudden end to Parliamentary business—which Mr. Harper insists was necessary to allow the government to "recalibrate" itself and begin planning for a March 4 budget while taking control over Senate committees from the Liberals—is the culmination of a disturbing trend that began in late 2007 when his commission began an inquiry into allegations of detainee torture.
"That's where it all started," Mr. Tinsley said, adding that the government's refusal to cooperate with the commission, including a successful Federal Court case limiting the extent of its inquiry, has contributed to public speculation, also spurred on by statements from diplomat Richard Colvin, the former political officer with Foreign Affairs, that there is "some sort of cover-up."
"That heats up as public servants are attacked [the government attempted to discredit Mr. Colvin after he testified at the Commons committee and invoked national security to prevent him from testifying at the commission], a Parliamentary committee becomes involved and now we have constitutional issues, supremacy of Parliament issues, being raised to the point that we could have a form of crisis in our government system," said Mr. Tinsley.
"We have now, with the prorogation, moved to a point that one could say Parliament has been dismissed," said Mr. Tinsley. "For one, like myself, who believes that fundamental to our legal structure is the supremacy of Parliament, that's very disturbing, so I would use the term dictatorial, in a metaphorical fashion."
The chief law clerk of the Commons has advised the Special Afghanistan Committee that Parliament is supreme under the Canadian Constitution and has the authority to compel the government to disclose the documents and information it is withholding on grounds of national security. The opposition has proposed receiving the contested documents in camera, and even swearing-in selected opposition MPs as members of the Queen's Privy Council, an office normally reserved to members of Cabinet, who take an oath of secrecy when assuming their titles.
Justice Minister Rob Nicholson (Niagara Falls, Ont.) has challenged the opposition to take their demand to court, even though Conservatives hold a longstanding view that courts have too often interfered with Parliament by striking down controversial laws for Charter of Rights violations. Some opposition MPs have raised the possibility of calling Cabinet ministers to the bar of the Commons to compel disclosure of the evidence.
Mr. Tinsley was a United Nations war crimes prosecutor in Kosovo following the civil war in the former Yugoslavia, a former director of the Ontario Special Investigations Unit that investigates police incidents resulting in death or serious injury, and served in the Canadian Forces for 28 years as a member of the Military Police and a lawyer. He took part in the prosecution of Canadian Forces members following the beating death of a Somali civilian at the hands of a Canadian soldier during an ill-fated international peacekeeping mission in 1992. Mr. Harper named a former chief of the Windsor, Ont., police service, Glenn Stannard, as acting chair of the commission.
Evidence the police commission obtained before Mr. Tinsley's departure were explosive statements from military police officers who served in Kandahar in 2006 and 2007, when the government secretly ordered a halt to transfers as the controversy over possible torture began. The documents have never been aired publicly at the commission because of government court delays and objections.
An Ipsos Reid public opinion poll last week found 38 per cent of respondents across Canada agreed with the opposition that Prime Minister Harper's decision to prorogue Parliament was intended to "curtail" the Parliamentary inquiry into the torture allegations. Only 23 per cent agreed with the government's claim the break was necessary to begin planning the second stage of the Conservative economic recovery plan. Thirty-nine per cent of the respondents were unsure.
In Ontario, however, 40 per cent of respondents agreed with the opposition, and only 20 per cent sided with the government. In the Atlantic provinces, 49 per cent agreed with the opposition.
Liberal MPs Ujjal Dosanjh (Vancouver South, B.C.) and Bob Rae (Toronto Centre, Ont.) and NDP MP Paul Dewar (Ottawa South, Ont.) said the three oppositions parties have informally agreed to join forces and resume informal meetings of the Afghanistan committee after Jan. 25, the day the Commons had been scheduled to resume sittings following the Christmas recess.
"Why did they prorogue now?" said Mr. Dewar. "They could have prorogued two days before we were to come back and then had a Speech From the Throne. They didn't want this issue to have any more oxygen."
Conservative MP Rick Dykstra (St. Catharines, Ont.) said the issue had nothing to do with prorogation, adding that although he has received several phone calls and emails objecting to the Parliamentary suspension, no constituent has raised the Afghanistan controversy.
"I can tell you I have had zero calls and zero emails from anyone in my constituency about that issue," said Mr. Dykstra, Parliamentary secretary for Citizenship and Immigration Minister Jason Kenney (Calgary Southeast, Alta.).
Harper assumes powers of executive privilege, U.S.-presidential style
A dispute that began with stonewalled reports of Afghan prisoner abuse is set to become the crucible that determines if the Prime Minister or Parliament is now supreme.
By JAMES TRAVERS
Published December 21, 2009
OTTAWA—Pierre Trudeau first freed the genie of expansive prime ministerial power. Now an increasingly feeble Parliament is trying to stuff the monster back into the bottle by demanding Stephen Harper release uncensored documents on Afghanistan prisoner abuse.
At stake is the ability to hold the ruling party accountable between elections. Already dangerously diminished, that capacity will shrink to irrelevance if the Prime Minister wins what is fast becoming an annual Parliament Hill showdown.
On the surface, the current clash favours opposition parties. Armed with legal opinion and the majority of seats won in the 2008 campaign, they have the theoretical right and political numbers to insist the government reveals what Conservatives are desperate to keep secret.
Worse still for the ruling party, the defence is porous.
National security concerns can be easily satisfied either by releasing the documents to MPs under the protection of secrecy laws or, by naming a judge—as Ottawa did in the Maher Arar case—to decide what is damaging to the country as opposed to injurious to politicians.
But the opposition's upper hand is deceptive. As the coalition parties learned during last year's Christmas crisis, a cornered Prime Minister is formidable prey.
Facing certain defeat, Harper escaped by persuading the Governor General to suspend Parliament and by convincing a surprising number of civics-challenged citizens that he alone could rule. On balance, Michaëlle Jean was right. By any measure beyond a propaganda triumph, Harper was wrong.
Americans directly choose presidents; Canadians elect Members of Parliament. In the absence of U.S. checks and balances, prime ministers are controlled by the confidence of the Commons.
How loose that control has become was exposed by the Quebec sponsorship scandal. Not only were MPs in the dark about how Liberals were misspending public money, Justice John Gomery couldn't follow the dollars through the maze of "mechanics" up the command chain to a responsible minister.
Conservatives won the 2006 election in part by promising transparency. Since then, Ottawa has become only more opaque as the result of the resolute Conservative effort to mute public watchdogs, pass the buck to civil servants and continue concentrating power among appointed partisans in the Prime Minister's Office.
Those factors are coalescing again in a replay of recent history. Denied vital facts, MPs are lost along the Afghanistan prisoner paper trail. Bureaucrats, most notably diplomat Richard Colvin, are the designated scapegoats. By balking at Parliament's demand for information, Harper is assuming powers of executive privilege normally associated with U.S. presidents, not Canadian prime ministers.
Forcing compliance and re-establishing the democratic balance of power is as straightforward as it is twisted. At the first opportunity, opposition parties can defeat Conservatives in the Commons, forcing election-weary voters back to the polls.
Not an appealing political proposition. The loss of Commons confidence is still the appropriate democratic response if the threat of an unwanted campaign, the possible embarrassment of a court challenge or Parliamentary censure fail to cool overheated heads. If not, a dispute that began with stonewalled reports of Afghan prisoner abuse is set to become the crucible that determines if the Prime Minister or Parliament is now supreme.
James Travers is a national affairs columnist with The Toronto Star. This column was released on Dec. 15.
