Unbalanced Thoughts

For a couple of weeks last fall, a wonderful madness descended on Parliament Hill, and the country watched gobsmacked as the opposition threatened to bring down the newly elected Conservative government and replace it with a Liberal-NDP coalition propped up by the firm support of the Bloc Québécois. Was this constitutional? Was it democratic? Canadians seemed unsure. At the very least it was a sharp reversal of the general expectation, which was that with their strengthened minority the Tories had earned a substantial mandate to govern, especially given that they were facing a demoralized Liberal party led by a humiliated and soon-to-depart Stéphane Dion.

Problems began at the end of November, when Stephen Harper introduced a fiscal update that included three problematic elements. First, it was remarkably insouciant about what many people saw as an obvious, and ominous, growing economic crisis. Second, it proposed to ban public sector strikes. Finally, it announced a plan to eliminate the subsidy to political parties that paid $1.95 for each vote received—money that is now the main source of funding for the three opposition parties.

Understandably, the opposition went berserk. The Liberals and NDP immediately entered into discussions to topple the government at the earliest opportunity and, even though the Tories quickly backed down on the most obnoxious elements of the fiscal update, events had been set in motion. The Liberals and NDP produced a signed agreement proposing to replace the Conservatives with a coalition government led by Dion and supported for 18 months by the Bloc Québécois. When Harper vowed to use every “legal means” at his disposal to prevent this from happening, including requesting that Parliament be prorogued, Governor General Michaëlle Jean hurried back from a trip to Europe to meet with her constitutional advisors.

On Thursday the fourth of December, Stephen Harper paid a visit to Rideau Hall. After a closed-door meeting that lasted more than two hours, the prime minister walked out, faced the media and told Canadians that Jean had agreed to his request to close down Parliament until January 26. With that, the coalition was effectively dead, and the madness had passed.

It began as a straightforward political drama, but it was Harper’s over-the-top reaction to the proposed coalition that turned it into what many people saw as a full-blown constitutional crisis. His first gambit was to point out how politically unacceptable the coalition was, given that it involved the NDP and was supported by the Bloc. In a fantastically reckless turn of phrase, he described it as an unholy coalition of “socialists and separatists.”

Not content with both red baiting and Québécois baiting, Harper suggested that the whole proposal was not just politically ill advised, but downright unconstitutional. While he conceded the right of the opposition to vote non-confidence, he claimed that the opposition parties were trying to “overturn” the results of the election, and described the signed coalition agreement as something akin to a “coup d’état.”

For obvious reasons, both Stéphane Dion and Jack Layton had a different take on the matter. For Dion, it represented a final chance to earn the respect of history, while Layton and other leading New Democrats were so giddy you could almost see the dreams of ministerial limos dancing above their heads. Only Michael Ignatieff seemed the slightest bit trepidatious about the whole thing, perhaps because it raised the possibility that Dion might find some way to stay on as leader, despite having already promised to step down. But something else might have been keeping Ignatieff on the fence: a sneaking suspicion, perhaps, that there was something not quite right about the whole affair. Sure, replacing the government might be constitutionally sound, but did it pass democratic muster? He eventually signed on to the agreement—the last Liberal to do so.

Into this fray jumped every constitutional scholar, political scientist, pundit and blogger in the land, along with Tim and Tammy Horton chiming in on phone-in shows from coast to coast. Overnight, it seemed we had all become instant experts on constitutional or political arcana such as the King-Byng affair and the residual powers of the Crown, and had deeply considered views on competing European models of parliamentary coalition forming.

Meanwhile, a consensus quickly emerged among the country’s intellectual class that Canadians were appallingly ignorant of the way their own political system functioned. Watching the masses mucking around in this playground of purported constitutional ignorance, University of Toronto Press figured that there was “a great and immediate need” for accessible and scholarly writing that would inform and enlighten Canadians. The result—published less than four months after prorogation—is Parliamentary Democracy in Crisis, edited by two of the great students of our constitution, Peter Russell and Lorne Sossin.

In addition to a brief foreword by Adrienne Clarkson, there are 14 essays crammed into the book. The contributors are drawn from the who’s who of Canadian law and political science, including David Cameron, Ned Franks, Jennifer Smith and Lorraine Weinrib. The essays are divided up under four main topics: the decision to prorogue, constitutional conventions and the governor general, coalitions and parliamentary government, and the fault lines the crisis exposed in Canada’s democratic culture.

This is not the first time that UTP has moved to publish an insta-book on a matter of pressing and vital national interest. In the fall of 2001, when a panicked Chrétien government was racing to pass an omnibus anti-terror legislative package, the law faculty at the University of Toronto scrambled to put together a conference on the subject of freedom and security in an age of terror. The conference and almost simultaneously published book remain one of the single most important interventions into public affairs by a group of academics in this country’s history.

This book has similar ambitions, announced by the editors in the introduction as follows: to provide a narrative of political events destined to become legendary, to anticipate the future evolution of our system under what looks to be a lengthy succession of minority parliaments and to “reduce the knowledge deficit” among Canadians regarding the proper workings of their political regime. The good news is that on the first two of these, the book is quite successful.

The narrative by Michael Valpy that opens the book is an elegant and informed first draft of history. There are few journalists in this country with both his knowledge of the constitution and his contacts within the higher reaches of Canada’s legal establishment, and he makes great use of these assets here. His inside scoop on what went on in Rideau Hall between Jean and Harper is fascinating on its own, and it does an excellent job of setting up the next section of the book, which is a debate over whether the governor general made the right decision in proroguing Parliament. The duelling essays on this question between Ned Franks (who says she did) and Andrew Heard (who says she did not) are short, sharp and utterly persuasive on their own terms. Who is right? We’ll see. The academics propose, but it is history that will dispose.

Now for the bad news. On the last and most important of this book’s ambitions, it is a crashing failure. The reason, to put it bluntly, is that the ideological range of views on offer is even more narrow than one normally finds while strolling the groves of academe. As a result, the perspective that is presented on the whole madness is so one-sided and uncharitable toward the opposing view that it just kicks up more sand in the playground, obscuring more than it reveals.

To understand why the book is such a disappointment on this score, it is important to grasp the two competing theoretical (as opposed to partisan) positions that emerged over the course of the crisis. Let us call the defenders of these positions “parliamentarians” versus “democrats.” Parliamentarians take it as axiomatic that from the perspective of constitutional theory, the coalition was legally impeccable. They point out that we elect a parliament, not a party or a president; that parliamentary coalitions are unremarkable in all sorts of civilized countries; and that before the prorogation the Conservatives had clearly lost the confidence of the House of Commons with a stable government waiting to take over.

On the other side are the democrats, who believe that while replacing a sitting government with an opposition coalition may be sound from the perspective of pure legality, it is fundamentally undemocratic. They point to a founding defect in the Canadian constitution, which is that “the people” do not get a mention, and much of the functioning of Parliament amounts to the executive and our elected representatives doing what they will and simply inviting the public to “trust us.”

The problem with this book is that every author is a devout parliamentarian. In essay after essay, Stephen Harper is taken to task for a multitude of sins against honest politics and Walter Bagehot — with little care taken to distinguish between the two. As Paul Martin liked to say, let there be no mistake: Stephen Harper’s behaviour throughout the madness was outrageous. It was his hyperpartisanship and arrogance that triggered the coalition, and his inventive approach toward constitutional conventions that brought the academics into the fray in the first place.

But that does not change the fact that there were honestly held concerns about the democratic legitimacy of the coalition. One of the hardest intellectual tricks for anyone to pull off is to prevent one’s personal political views from turning into a judgement about the validity of the system as a whole. We can do it easily with sporting events (we recognize that our team lost fair and square), but when it comes to partisan politics, many people have a very hard time accepting that their side might have lost fairly, or even won unjustly.

That’s one reason why we have academics. They are people who train their minds for years, even decades, for precisely this purpose—to make these sorts of distinctions. That is why it is so depressing to read these essays and see how little effort is made to distinguish the constitutional question at issue from the author’s preferred political result.

The most egregious instance of this is the essay by Weinrib, a professor of law and political science at the University of Toronto. It is little more than an extended ad hominem attack on the leadership of Stephen Harper, accusing him of everything from cynicism to bad faith to megalomania, and she simply dismisses with a wave the possibility that Harper might actually have an intellectually honest view of how the machinery of parliament ought to operate. Weinrib’s essay would never have passed proper peer review, and it probably should not have been included in this volume.

But her essay is simply the worst example of an intellectual disposition that pollutes almost every essay in the book. There is no concession given to the possibility that one could support the political aims of the coalition yet be concerned about the legitimacy of the process that would have brought it to power. Nor is there anyone here willing to go out on a limb and say that while he or she deplores the political leanings of the coalition, the process used to take power was entirely legitimate.

The book’s ideological tunnel vision is perplexing. During the madness itself, a number of respectable national commentators weighed in on the side of the democrats, offering cogent and, for the most part, politically disinterested arguments against the coalition. One of these was Norman Spector, who offered an interesting argument suggesting that King-Byng was a historical anomaly, a one-off that should not be used as a precedent in favour of the coalition.

Another useful article came from former Carleton University president Richard Van Loon, who freely conceded that the proposed coalition was technically legitimate under the Westminster parliamentary system. But Canada has no tradition of coalition government and has no conventions that dictate when and under what circumstances a coalition can take power. Most importantly, Van Loon pointed out, it should never come as a surprise to the electorate—the people should know going into the election that a coalition is a possible outcome. But this is not what we had during the last election, when Stéphane Dion and the Liberals repeatedly rejected the possibility of forming a coalition with the NDP.

Perhaps the most vital and unique intervention came from the historian Michael Bliss, who pointed out that because of the strict parliamentarism of our constitution, Canadians have had to use the periodic national crises that arise to elbow themselves into its machinery. In a denunciation of the coalition’s manoeuvring published in the National Post, he argued that the legacy of Meech and Charlottetown was that Canadians would never again allow the fate of the country to be decided by political elites, cooking up deals in the backrooms without consulting the people in either an election or a plebiscite.

Not one of these commentators displayed any obvious bias in favour of Harper or his government. Indeed, Van Loon made it clear that he held no brief for the Tories, and in a presentation in Ottawa to the Public Policy Forum he went so far as to say that Harper’s characterization of the coalition as an illegitimate deal with separatists was “ill advised, stupid, short sighted, and un-Canadian.”

All three of these men should have been asked to contribute to this book, and the fact that none of them is included is a minor scandal. At the very least, there should have been an essay offering a proper defence of the democratic position. The closest is Jennifer Smith’s chapter, “Parliamentary Democracy versus Faux Populist Democracy,” the title of which tells you everything you need to know about its ultimate perspective on the events.

It is possible that Canadians are ignorant about how our political system works, and all we need are some poli sci profs to set us straight. Another possibility is that once a lot of Canadians observed our constitution in action, they just did not like what they saw. Stephen Harper might have been torquing things in his favour when he called the proposed coalition an attempt at overturning the results of the election, but polling done at the time showed that almost two thirds of Canadians agreed with him.

If this is the only book you were to read about the great madness of 2008, you would come away from it fundamentally ignorant of the nature of the underlying constitutional debate, and of the scope of legitimate positions that were contending for support. As a result, Parliamentary Democracy in Crisis ends up contributing to the very problem it claims it is trying to solve. Far from dispelling ignorance, this book only creates more of it.