My Latest Article in the Journal of Parliamentary and Political Law: How Governor General Lord Aberdeen Reinforced the Caretaker Convention and Dismissed Prime Minister Tupper from Office

Posted on 2022/07/14 by J.W.J. Bowden

I first uncovered the correspondence in which Governor General Lord Aberdeen dismissed Prime Minister Sir Charles Tupper from office in July 1896 all the way back in 2012 while conducting research on something else. The documents have proven more fruitful and given me more ideas than I could ever have imagined at the time. But the material does not end with the correspondence between Aberdeen and Tupper. The Debates in the House of Commons between Tupper, then in opposition, and the new Prime Minister Sir Wilfrid Laurier, provided another fascinating take on these questions.

This latest article draws together all my analyses on this crucial precedent from 1896 with respect to the Caretaker Convention, when Governors General can dismiss Prime Ministers, the manner in which Governors General appoint Prime Ministers, whether Prime Ministers should resign so that the Governor General can appoint the new Prime Minister before a new parliament meets or not, and, more broadly, the nature of constitutional conventions themselves.

Bowden, J.W.J. “The Origins of the Caretaker Convention: When Governor General Lord Aberdeen Dismissed Prime Minister Tupper in 1896.” Journal of Parliamentary and Political Law 16, no. 2 (2022): 391-444.

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Posted in Appointment of PM, Caretaker Convention & Government Formation, Confidence Convention, Constitutional Conventions, Crown (Powers and Office), Governor General, Governor's Discretion | 2 Comments

The Canada Day Specials

Posted on 2022/07/01 by J.W.J. Bowden

I’ve compiled a list of my articles and blogposts pertaining to the history of British North America, which you might find of interest this long weekend.

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Posted in Dominion Day, History of British North America | 1 Comment

Who Decides What the Constitution Is and Says? Quebec Modifies the Text of the Constitution Act, 1867

Posted on 2022/06/29 by J.W.J. Bowden

Introduction

Law 96 has generated controversy and opposition amongst English-speakers in Quebec and, to a lesser extent, in the rest of Canada when the Legislature of Quebec enacted it last week for its provisions on language.

But it contains one other significant innovation which most of English Canada has overlooked. Through Law 96, the Legislature of Quebec enacted a constitutional amendment under the Section 45 Amending Procedure, which allows provincial legislatures to alter their provincial constitutions, and added two new sections directly to the text of the Constitution Act, 1867 as sections 90.1 and 90.2. Section 90 falls under Part V of the Constitution Act, 1867, the section on “Provincial Constitutions.”

As far as I know, provinces have thus far only impliedly repealed or amended provisions in Part V of the Constitution Act, 1867 through organic statutes without necessarily invoking the Section 45 Amending Procedure by name. But Quebec’s legislature for the first time used the Section 45 Procedure to add provisions directly. Furthermore, the Government of Quebec has already updated its consolidation of the Constitution Acts, 1867-1982 to include these new provisions. The federal Department of Justice produced its most recent consolidation of the Constitution Acts, 1867-1982 in 2021. So it will be very interesting to see whether the federal Department of Justice recognises the legitimacy of these amendments when it produces its next consolidation in a few years.

We might no longer even be able to agree on what the Constitution Act, 1867 says.

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Posted in Amending Formulas, Consolidations, Constitution (Written), Indirect Amendment | 2 Comments

The Strange Taboo Against Constitutional Amendment in Canada

Posted on 2022/05/17 by J.W.J. Bowden

Reputedly Unamendable Yet Frequently Amended

The Constitution of Canada has gained a reputation for having become unamendable and ossified since 1992 when Canadians rejected the proposed Charlottetown Accord in a country-wide referendum and brought the era mega-constitutional amendment to a grinding halt. This question consumed Canada from the early 1970s to the early 1990s and scared the generations that went through this trauma. They have ever since resigned themselves to accepting this constitutional paralysis and dare not break this uneasy truce. They often speak of amending the constitution as “Opening the Constitution” with audible capital letters yet in hushed tones, with the obvious allusion to opening Pandora’s Box and unleashing havoc hanging over any such reluctant conversation like the Sword of Damocles. This has become of the most toxic and bizarre taboo of Canadian political culture over the last thirty years, not least because it presents a false narrative which limits the concept of “constitutional amendment” — or the obscene blasphemy of “opening the constitution” — to two of the five amending procedures, as if the other three procedures and the constitutional amendments proimulgated under them didn’t exist and didn’t count for anything. This false, or at least exaggerated, narrative also stifles legitimate debate and makes Canada seem like a less serious country that can’t even pass uncontroversial housekeeping amendments.

While we have thus far fallen short of Unanimity with the failures of the Meech Lake Accord in 1990 and the Charlottetown Accord in 1992, we nevertheless amended the Constitution of Canada under General Amending Procedure once, in 1983,[1] and we have amended it many times under the three other amending procedures contained in Sections 43, 44, and 45 of the Constitution Act, 1982.

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Posted in Amending Formulas, Constitution (Written) | 3 Comments

Democracy Watch Wishes That It Could Quit the Fixed-Date Election Law

Posted on 2022/04/22 by J.W.J. Bowden

 

Introduction 

Democracy Watch touts itself as “the most effective and successful national citizen advocacy group in Canada at winning systemic changes to key laws since […] 1993.”[1] But it has certainly not met with success in its quixotic crusade against the true nature of Canada’s fixed-date election laws. On the contrary, Democracy Watch, the dissolution-chasing advocacy group undaunted by a series of judicial defeats, has now suffered its sixth rout since 2009 and has come one step closer to proving the colloquial definition of insanity as trying the same thing over and over and expecting different results. Justice Russel W. Zinn’s ruling in Democracy Watch et al. v Prime Minister of Canada et al. follows closely on the heels of Democracy Watch v New Brunswick (the Attorney General), where Justice E. Thomas Christie delivered Democracy Watch another embarrassing defeat on 29 October 2021.[2] The Federal Court of Canada has upheld his own previous Conacher ruling from 2009, deferred necessarily to the decision of the Federal Court of Appeal in 2010 on the same Conacher case, and sustained the two Engels rulings by Alberta’s Court of Queen’s Bench in 2019 and Court of Appeal in 2020, as well as New Brunswick’s Court of Queen’s Bench in 2021.[3] Canadian courts have now, as of February 2022, upheld the correct interpretation of fixed-date election laws for the sixth time.

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Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections, Watching Democracy Watch | 5 Comments