James Bowden's Blog

Introduction

Quebec Premier Jean Charest advised the Lieutenant Governor to dissolve the 39^th National Assembly on 1 August 2012 so that Quebeckers cast their ballots on 4 September 2012.[1] Charest’s Liberals face Pauline Marois’ Parti Québécois (PQ) and Francois Legault’s Coalition pour l’avenir du Québec (CAQ).

The English-language media has already noted some of the PQ’s anti-constitutional proposal to force potential candidates running for the National Assembly to pass test of their competency in French. While Marois has since withdrawn that proposal, the PQ have maintained another plank of their platform that would probably also be unconstitutional, and the English-language media have yet to report on it.

Two planks of the Parti Quebecois’ (PQ) platform would amount to severe vandalism against the constitution. As of 4 August 2012, the secessionist party’s platform calls for “limiting to two the number of consecutive mandates of a premier” and to “implement fixed-dated elections,” without specifying whether Quebec’s fixed-elections legislation would limit the duration of a National Assembly to three, four, or five years.[2] Both of these proposals are designed to constrain the powers of the Premier, but the term limits in particular would at worst be unconstitutional and at best generate legal-constitutional chaos.

The PQ has already changed the wording of this proposal. The original wording from December 2010 sought “to limit the period during which a person can act as Premier of Quebec to the longer of two mandates or 10 years.”[3] That wording prevailed in January 2011, but by May 2012, PQ had adopted the current wording.[4] More confusing still, Marois removed the “consecutive” from her platform and instead proposed “[to limit] the Premier to two mandates” in the leaders’ debate of 20 August 2012.

The Term of a First Minister and Cabinet vs. the Life of a Parliament

The term of a First Minister and Cabinet on the one hand versus the life of a Parliament on the other shows the truest separation between the executive and legislature under our system of Responsible Government.

The authors of the PQ’s platform fail to understand at least three aspects of our system of Responsible Government and hold these misconceptions: first, that the life of a Parliament also determines the “term” of a government; second, that a First Minister can resign from office and leave the rest of Cabinet intact; third, that the Cabinet derives its power and authorities from Parliament.[5] As such, they equate the “mandate” of the Premier to the life of a parliament in which the Premier’s party commands a plurality or majority of the seats. All are factually incorrect.

First, section 3 of the Constitution Act, 1982 fixes the maximum life of the Parliament of Canada and all ten provincial legislatures at five years. Nowhere, however, do the Constitution Acts limit the tenure of a government. Instead, under the Westminster system of Responsible Government, a Cabinet does not and cannot serve a fixed term; it remains in office as long as the legislature allows through the confidence convention. Its term could be as short as three months or as long as fifteen years. A Ministry can remain in office across the span of more than one Parliament; conversely, one Parliament can support more than one Ministry. There is no fixed ratio or correlation between the number of Parliaments and number of Ministries. At the federal level thus far, Canada has seen 41 Parliaments but only 28 Ministries since Confederation, while the province of Quebec has seen 39 legislatures and 34 Ministries in the same period.[6] The difference between these ratios only signifies that Quebec sees a greater turnover in government than does Canada.

Second, the tenure of the First Minister determines the term in office of his or her Ministry, which means that his or her resignation or death results in the automatic resignation of all other serving Cabinet ministers and the end of that Ministry.[7] Upon the resignation or death of the First Minister, the remaining Ministers of the Crown would then operate as a caretaker cabinet, carrying out only the routine and necessary activity, until the Governor appoints a new First Minister, who in turn forms a new Cabinet.[8]

A First Minister can serve two or more terms if and only if he resigns from office and the Governor subsequently re-appoints him to that office. “Consecutive terms” are therefore impossible, but non-consecutive terms have happened at both the federal level and in Quebec. limiting the Premier to “two mandates” would not limit his tenure to any specific number of years, but tie his tenure directly to the lives of two parliaments, which are subject to the possibility of early dissolution.

The True “Mandate” of the First Minister: Cabinet’s Powers and Authorities Flow from the Crown, Not from Parliament

Third, Cabinet’s powers and authorities derive from the Crown, not from Parliament.[9] The legislature simply determines, via the confidence convention, which party or parties form Cabinet and exercise the powers and authorities of the Crown, and the Governor is obliged to appoint the First Minister accordingly. Contrary to popular and journalistic belief, a single-party minority government, a coalition government, and a single-party majority government all wield precisely the same powers and authorities of the Crown, though some types of government command the confidence of the legislature more easily than others.[10]

The Governor appoints as First Minister the leader of the party who stands the best chance of heading a government that can command the confidence of the legislature, thus granting him official commission under the Crown – the true legal “mandate.”[11] This is the Governor’s first constitutional duty: to ensure that there is always a First Minister and Cabinet in office. The Governor must fill this vacancy immediately whenever a First Minister resigns or dies in office because there must always be a government in order to secure to continuity of the State. The Governor then appoints (and dismisses) other Ministers of the Crown on and in accordance with the advice of the First Minister.[12]

Responsible Government means that the First Minister and Ministers of the Crown take responsibility for all acts of the Crown[13] (policies, expenditure, and decisions), and that they be accountable to the House of Commons and command its confidence. Once the Cabinet has demonstrated that it commands the confidence of the legislature (such as through the Address in Reply to the Speech from the Throne or on any supply bill), it retains that confidence until the moment that the legislature decides to withdraw it in a subsequent formal vote in the chamber.[14] As such, the Cabinet still carries out all executive functions when the Parliament is adjourned or prorogued. During an election, the legislature is dissolved and thus ceases to exist altogether. While members of the legislature thus lose their offices, Ministers of the Crown in Cabinet retain in office and continue to govern under the “principle of restraint” (or the “caretaker convention”) and carry out only routine and necessary governmental activity until after the results of the election are known. The Cabinet voluntarily refrains from exercising the full scope of its legal authority precisely because there is no House of Commons to hold it to account.[15]

The PQ’s proposal would put this entire arrangement in jeopardy by granting the presidential concept of term limits on a Westminster parliamentary system. The fact that the Cabinet derives its powers and authorities from the Crown makes this whole arrangement possible. If it derived its executive power from Parliament, then the existence of Cabinet would depend on Parliament. But it does not. The existence of the Ministry instead depends upon the First Minister, who receives his official commission from the Governor.

Ministries That Span More Than One Parliament

Prime Minister Harper and his Cabinet form the 28^th Ministry. His term of office began when Governor General Michaelle Jean appointed him on 6 February 2006; it will end only upon his resignation (or in the unlikely event that he dies in office). So far, the Harper government’s term in office has lasted five-and-a-half years and has spanned across the 39^th, 40^th, and 41^st Parliaments.

The Lieutenant Governor appointed Charest as Premier of Quebec on 29 April 2003; his government has so far spanned the 37^th, 38^th, and 39^th National Assemblies.

Parliaments That Supported More Than One Ministry

The 2^nd Parliament of Canada (1873-1874) supported the First Macdonald Government and the Mackenzie Government. The 7^th Parliament of Canada (1891-1896) gave sanction to four governments: the Second Macdonald Government, the Abbot Government, the Thompson Government, and the Bowell Government. (The Tupper Government is a bizarre case, because it existed only during writ period between the 7^th and 8^th Parliaments and therefore never commanded the confidence of either).

In Quebec, the 35^th National Assembly (1994-1998) supported both the Parizeau Government and the Bouchard Government. The 36^th National Assembly (1998-2003) saw the Bouchard Government and the Landry Government.

Prime Ministers Who Served Non-Consecutive Terms

As “The Guide to Canadian Ministries Since Confederation” shows, Sir John A. Macdonald served two non-consecutive terms as Prime Minister and formed the 1^st and 3^rd Ministries of Canada: first, from 1867 to his resignation in 1873; second, from his re-appointment in 1878 to his death in 1891.[16] So far, Macdonald is the only Prime Minister whose Ministry dissolved both upon his resignation and upon his death. The clever Mackenzie King served three terms as Prime Minister: first, from his appointment in 1921 to his veritable dismissal in 1926; second, from his re-appointment later in 1926 to his resignation after electoral defeat in 1930; third, from his re-appointment in 1935 to his voluntary resignation in 1948. King maintains at least two distinctions, being the only Canadian Prime Minister whom a Governor General forced to resign (tantamount to a formal dismissal), and for having served the greatest number of years as Prime Minister during his three terms. Finally, Pierre Trudeau served two terms as Prime Minister: first, from his appointment on 20 April 1968 (in the middle of a parliament) to his resignation upon electoral defeat on 3 June 1979; second, from his re-appointment on 3 March 1980 to his voluntary resignation on 29 February 1984. The First Trudeau Government spanned across the 27^th, 28^th, 29^th, and 30^th Parliaments, while the 32^nd Parliament alone contained the Second Trudeau Government.

In Quebec, Maurice Duplessis served two terms as Premier: first, from his appointment in 1936 to his resignation upon electoral defeat in 1939; second, from his re-appointment in 1944 to his death in office in 1959.

Robert Bourassa served two terms as Premier: from his appointment on 12 May 1970 to his resignation after electoral defeat 25 November 1976, and again from his re-appointment on 12 December 1985 to his voluntary resignation on 11 January 1994. Bourassa advised and received the early dissolution after only 3 years of both the 29^th National Assembly (1970-1973) and the 30^th National Assembly (1973-1976). His second term spanned the 33^rd National Assembly (1985-1989) and the 34^th National Assembly (1989-1994).

The PQ’s Proposal Is Probably Unconstitutional and Certainly Impracticable

Ambiguity of “Mandate” and the Fixed Elections

Originally, in 2010 and 2011, the PQ proposed to “limit the Premier to the longer of two mandates or ten years.” The PQ also sought to complement the limit of the Premier’s term in office with fixed-elections legislation, but without specifying whether the elections would be fixed every three, four, or five years. First, the PQ also failed to take into account the possibility of a minority parliament, which could trigger an early dissolution at any time by withdrawing confidence in the government. Second, if the fixed elections were required every four years, the Premier and Cabinet would probably not serve a term longer than eight years and two parliaments. In that case, a Premier could only serve “the longer of ten years” if the Lieutenant-Governor appointed him in the middle of the life of an earlier parliament that preceded the other two. Third, if the PQ did not intend to fix the elections every four years (as all the other provinces do) and instead fix them at five, then the entire plan would become wholly redundant: section 4 of the Constitution Act, 1982 already limits the duration of the Parliament of Canada and the provincial assemblies to a maximum of five years!

The PQ now seeks to “limit the Premier to two consecutive mandates.” This proposal would create two different classes of problems, one depending on a majority National Assembly and a single-party majority government, the other on a minority National Assembly and a single-party minority government or a coalition government. In addition, the ambiguity of “mandate” quickly becomes apparent. Whether the PQ would fix elections every four or five years may also depend upon the definition of the ambiguous “mandate” that the Premier possesses.

If “mandate” refers to the “popular mandate” based on results from the general election of a new National Assembly, then such a law would not fix the Premier’s (and therefore the government’s) time in office to a set number of years, but rather to a set number of parliaments. And the life of those parliaments would still remain subject to the confidence convention and the possibility of early dissolution. The PQ could also have meant a “party mandate,” such as when the government changes within the life of a parliament because one First Minister and party leader resigned and was replaced by another. This model would require a majority Parliament and a single-party majority government. This has occurred in Quebec three times in the past 20 years. In 1994, Bourassa resigned, and Daniel Johnson replaced him as both Liberal leader and as Premier; in 1996, Parizeau resigned, and Bouchard replaced him as both PQ leader and Premier; finally, in 2001, Bouchard resigned, and Landry replaced him as both PQ leader and Premier.

Applying the PQ’s Term Limits to the Charest Government

The ambiguity and impracticality of the PQ’s proposal becomes readily apparent when applied to the Charest government, which has spanned two majority parliaments and one minority parliament. The Charest government maintained a majority in the 37^th National Assembly (2003-2007), clung to only a plurality in the 38^th National Assembly (2007-2008), and subsequently regained its majority in the 39^th  National Assembly (2008-2012).

Jean Charest led his Liberal party to a parliamentary majority in the general election of 2003 and replaced Bernard Landry as Premier of Quebec – thus securing what most journalists would call a popular “majority mandate”. However, the election of 2007 reduced the Liberals to a parliamentary plurality, which ensured that Premier Charest led a minority government. That election thus gave Charest only a popular “minority mandate”, since his government managed to retain the confidence of the National Assembly. If the PQ’s absurd proposal had applied to Charest, the law would have forced him to resign as premier upon the dissolution of the 38^th National Assembly in 2008 – because he could only serve “two mandates”, which most logically would refer to “the life of two National Assemblies.” As such, the dissolution of the National Assembly that granted the Premier his “mandate” would therefore logically demand the resignation – or dismissal – of the Premier’s Ministry, which would in turn violate a host whole of conventions and practices of Responsible Government.

The resignation of a First Minister in Canada automatically results in the resignation of the entire Cabinet, which means that the Governor would have to appoint a new premier and government tout de suite because his primary duty is to ensure that there is always a government in office. Charest would have been obliged to resign in 2008 after the dissolution of the 38^th National Assembly and the dissolution of his “mandate.” The Lieutenant-Governor would in turn have been obliged to appoint a new Premier and government from the same party (presumably on Charest’s advice) – all while the National Assembly itself was dissolved and did not exist. This new Liberal government would then have commanded neither the confidence of the National Assembly (since it did not exist), nor the confidence of the electorate. An entirely new government (another Liberal Ministry) would have presented itself to the people of Quebec in the 39^th General Election of 2008. This arrangement would therefore have forced the Lieutenant Governor to intervene such that he would deprive the electorate of the opportunity to hold the Charest government to account. And if Charest did not resign, would the Lieutenant Govrnor then be obliged to formally dismiss him and his government from office? If so, the Lieutenant Governor would then have to appoint a new Premier immediately. And this is supposed to a more democratic? Under minority National Assemblies, the PQ’s proposal would replicate the bizarre case of the Tupper Government of 1896 and force the Lieutenant Governor to appoint a new Premier and new Government during the writ period. All of the above would severely derogate from the principles of Responsible Government and render our system less democratic and less accountable. It would augment the power of the Lieutenant Governor at the expense of the Premier and Cabinet.

Majority Parliaments and the Ambiguity of “Mandate”

Other problems that derive from the ambiguity of “mandate” would arise in a series of majority National Assemblies. If a Premier and his Cabinet are sworn mid-parliament upon the resignation or death of the previous Premier, this new Premier would lack a “popular mandate.” How, then, would the PQ count his “mandates” and limit him and his Cabinet to two of them? Such transfers of power mid-parliamentt have happened numerous times in Quebec. The elections of 1994 gave the PQ a majority in the National Assembly, and Jacques Parizeau became Premier. He resigned on 29 January 1996. Lucien Bouchard was sworn in as Premier on the same day, but he did not advise dissolution until 1998. The PQ secured another parliamentary majority in the 36th National Assembly, but Bouchard resigned as Premier on 8 March 2001. Bernard Landry then formed a new government that lasted until 29 April 2003. The Bouchard government spanned two National Assemblies, but he only secured one “popular mandate.” Would the PQ therefore deem that Bouchard only served one “mandate” as Premier? The Landry formed his government mid-parliament and never led his party to electoral victory. Would the PQ therefore conclude that the Landry government had won zero “mandates” and thus allow him to remain as leader for another two parliaments?

Some federal examples also illustrate the absurdity of the PQ’s proposal. Pierre Trudeau in 1968, John Turner in 1984, Kim Campbell in 1993, and Paul Martin in 2003 were all appointed Prime Minister and invited to form governments mid-parliament based on the results of own parties’ leadership processes. Did any of them possess “mandates” from the start? The Turner and Campbell governments met disastrous defeat in the subsequent campaigns, but the Trudeau and Martin governments remained in office. So perhaps the Turner and Campbell governments served in office but never possessed “mandates.”

The First Trudeau Government and the Martin Government highlight the ambiguity of the “mandate.” The Governor General appointed Trudeau as Prime Minister mid-parliament on 20 April 1968, after he had won the Liberal leadership. Prime Minister Trudeau then advised the dissolution of the 27^th Parliament on 23 April 1968. The First Trudeau government increased its parliamentary plurality to a parliamentary majority in the 28^th Parliament. Similarly, Paul Martin was appointed Prime Minister on 12 December 2003 because he won the leadership of the Liberal Party, which formed a parliamentary majority in the 37^th Parliament. Prime Minister Martin didn’t advise the dissolution of the 37^th Parliament until 23 May 2004, after which the Martin government lost its parliamentary but remained in office as a single-party minority government. Would the PQ seriously suggest that the Martin government ruled without a “mandate” for its first six months?

Conclusion

The PQ’s proposal would probably be unconstitutional because it would derogate from the principles of Responsible Government, the confidence convention, and could politicize the Lieutenant Governor by forcing him to her to appoint a new premier and government mid-parliament (sometimes during a minority parliament) or after a parliament has already been dissolved. If implemented, this new law would be ambiguous, undesirable, impracticable, foolish, and probably unconstitutional.

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