Taking Stock of 2018: Recent and Upcoming Publications

I’m pleased to report that the Commonwealth Law Bulletin has accepted and will publish at some point in 2019 my manuscript entitled “‘Indirect Amendment’: How the Federal Department of Justice Unilaterally Alters the Text of the Constitution of Canada.” This piece started as an offshoot of my research into electoral reform in 2016; I happened to have two copies of the Department of Justice’s consolidated Constitution Acts, 1867-1982 from different years and noticed that the wording of section 37 of the Constitution Act, 1867 had changed, even though the Parliament of Canada had never amended it under the Section 44 Amending Procedure. I blogged about it here on Parliamentum in 2017 before discovering how deep the well went. I’ll announce when the Commonwealth Law Bulletin publishes it. This will become my second journal article derived directly from a blog entry or a comment on this blog; the first appeared in the Journal of Parliamentary and Political Law last year as “When the Bell Tolls for Parliament: Dissolution by Efflux of Time.”

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Toronto Has Always Been Thus

As so often happens, I discovered this wonderful little tidbit while reading about something entirely different.

Morison, J.L. British Supremacy & Canadian Self-Government, 1839-1854. Glasgow: James MacLehose and Sons, 1919.

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What Adrienne Clarkson Said on 3 February 2011

“I would love to have been Governor General in December 2008!” – Adrienne Clarkson, 3 February 2011.

Adrienne Clarkson, who served as Governor General from 1999 to 2005, has generated controversy over the expenses that she has incurred since leaving office under a program from 1979 designed to support former Governors General.

The National Post ran several articles on the subject and reported that Clarkson has billed at least $1,100,000 in expenses since leaving office – and possibly more. The National Post’s latest article from 5 November 2018 suggests that Clarkson might have incurred expenses in the range of $200,000 in some years. Essentially, this program appears as a line-item under the budget of the Office of the Secretary of the Governor General as “temporary help services,” but only for the fiscal years where a former Governor General has claimed at least $100,000. Some years might register no line-items because Clarkson claimed less than $100,000. Currently, there is no requirement for proactive disclosure as a matter of course. Prime Minister Trudeau has announced that the government will review the program. Even the Toronto Star opined that that the program should “ha[ve] its limits.”

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Posted in Crown (Powers and Office) | 4 Comments

What Happens in the Assembly After the Gallant Government Falls

By James Bowden and Lyle Skinner 

Table of Contents


By Friday, November 2nd, New Brunswick will have resolved the issue of whether the Gallant Government has the confidence of the New Brunswick Legislative Assembly.

In this piece, we will cover relevant precedents of minority governments which lost the confidence of the elected assembly on amendments to the Address-in-Reply to the Speech from the Throne, or otherwise, shortly after beginning a new session. These come from Canada in 1873, New Brunswick itself in 1883, Ontario in 1985, and, most recently, British Columbia in 2017. We will then apply these precedents to show what happens to both the government and the assembly and derive some general principles from them.

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Posted in Crown (Powers and Office), Dissolution, Formation of Governments | Leave a comment

Death by Deadlock: The Fate of the Gallant Government

By James Bowden and Lyle Skinner 

Table of Contents


Executive Summary

“Our caucus met today and agreed that out of respect for New Brunswickers, we must avoid an unnecessary election and not face the house without a candidate for Speaker” – Liberal acting Government House Leader, Lisa Harris

Like a game of chess, have the results of the 2018 New Brunswick elections created a Legislative Assembly that is in a true stalemate that can produce no winner and must be dissolved prompting a new election? Or is the minority Gallant Government in fact in political checkmate, where any maneuver ultimately results in its defeat?

Our analysis shows that Gallant is likely in check rather than a stalemate but that he faces the strong possibility of being put into checkmate. From this, he only has two rational choices with a limited chance of success:

1) Not allowing any Liberal MLAs to become candidates for Speaker. As no other party will put forward a candidate, this will cause the Assembly to go without a Speaker and be unable to conduct any other business. The Assembly would become deadlocked. Historical precedents shows that Gallant will remain Premier, and that the Lieutenant-Governor should allow a reasonable amount of time for the Assembly to attempt to elect a Speaker. This process could allow for a political resolution. In the meantime, within the Assembly, Gallant could continue to negotiate for support from the Alliance and Greens to survive a Throne Speech vote. Outside, Gallant could use the procedural confusion to try and shift public opinion towards supporting his Government.

2) Putting a Liberal MLA forward as Speaker and then presenting a Throne Speech for the purposes of political posturing, daring the other parties to vote against it. As the precedents from Ontario in 1985 and British Columbia in 2017 demonstrate, this option is political suicide for a government wishing to remain in power.

Our article provides an overview of the political circumstances resulting from the recent election. We use constitutional principles, historical precedents, notably deadlocked Assemblies that were unable to put forward a Speaker (Prince Edward Island in 1859 and Newfoundland in 1908-09) to show that only Premier Gallant, and not the Legislative Assembly, can cause an early election by advising Lieutenant-Governor Roy-Vienneau to dissolve the Legislature. However, we will show that under these exceptional circumstances in New Brunswick, the Lieutenant-Governor is not bound to accept the advice from the Premier. Instead, depending on the path that Premier Gallant chooses, he will be forced to resign as Premier, enabling Lieutenant-Governor Roy-Vienneau to appoint Blaine Higgs as the New Brunswick’s 34th Premier since Confederation.

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Posted in Caretaker Convention, Confidence Convention, Constitution (Conventional), Crown (Powers and Office), Formation of Governments | 3 Comments