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Norman Spector

Harper plays the prorogation card Add to ...

Perusing the papers this morning, I see that Prime Minister Harper has "suspended" Parliament - a notion that was even picked up in a report from Ottawa by the venerable, and very conservative, Wall Street Journal.


I don't recall reading in any paper that Jean Chrétien had "suspended" Parliament in September 2002 - a prorogation that, according to Eddie Goldenberg in The Way it Works, was designed to test whether Paul Martin had the strength in caucus to push him out of office. Nor do I recall reports of Parliament being suspended in November 2003, when, according to Paul Martin's forces in turn, Mr. Chrétien prorogued again so as to leave it to his successor to receive Sheila Fraser's report on the sponsorship program - a notion that Mr. Chrétien and his supporters vehemently reject.

Now, rather than suspending Parliament, it would be more accurate to say that Mr. Harper is delaying its opening or that he is extending the parliamentary break by a few weeks. Which is not to say that what he is doing is right - though we should be clear on why it isn't.

Prorogation is a well-worn tactic in a Prime Minister's arsenal, and is often used for cynical reasons; like Mr. Chrétien, Mr. Harper is a master of the dark side of politics. However, he is not violating the written Constitution. According to section 20 of the 1867 Act, "There shall be a Session of the Parliament of Canada once at least in every Year, so that Twelve Months shall not intervene between the last Sitting of the Parliament in one Session and its first Sitting in the next Session." In the 1982 Constitution, that section was repealed and replaced by section 5 of the Canadian Charter of Rights and Freedoms: "There shall be a sitting of Parliament and of each legislature at least once every twelve months."

That said, Mr. Harper is clearly violating the spirit of the constitution, which requires that ministers of the Crown be accountable to Parliament. Indeed, with the issue of Afghan detainees high on the opposition's agenda, and with Mr. Harper yet to answer questions regarding the agreement in Copenhagen, Parliament should have been recalled before January 25 if its scheduled return date was to be altered in any way.

Ultimately, unless one side or the other backs down, it's likely that the dispute over Afghan detainee documents will be settled through legal, not political channels. Specifically, the Supreme Court of Canada will be called upon to adjudicate whether MP's can use their parliamentary privilege as a sword to demand documents governed by statutory censorship provisions. But the issue raised by prorogation at this time goes beyond the question of political accountability of ministers to the House in regard to Afghan detainees.

By constitutional convention, the government must enjoy the confidence of Parliament at all times. The delay in reconvening MPs means that, on that issue, a potential - though by no means certain - test of confidence is being delayed.

Regrettably, the constitutional convention related to confidence was broken last year when, faced with almost certain defeat, Mr. Harper requested prorogation and the Governor-General granted it. In comparison to that major violation of the spirit of the Canadian constitution, Mr. Harper's current request is a minor infraction.

Ms Jean would have been well within her rights last year to refuse Mr. Harper's request for prorogation; indeed, she could have cited the very precedent some opposition MPs were invoking to make the case for transferring power to them without an election: Mackenzie King's request for a dissolution, which was transparently designed to avoid a vote of non-confidence and was therefore rejected by Lord Byng.

Unfortunately, many people who feared that a Liberal-NDP coalition headed by Prime Minister Stéphane Dion and supported by the Bloc was about to take over the country were panicked into supporting Mr. Harper's request for prorogation and the Governor-General's decision to grant it. I say unfortunately, because the better option would have been to allow events to play out. For, as Michael Ignatieff understood better than many of his colleagues, the Governor-General could very well have agreed to Mr Harper's request for an election in last year's un-Byng/King like circumstances. However inconvenient that would have been for Canadians if the coalition had not backed down in the face of Canadians' abhorrence at the prospect of another election, we'd not be living today with the noxious precedent that a prime minister can prorogue Parliament to dodge a confidence vote-a precedent that prepared the ground for Mr. Harper so-well that he did not even have to cross the street to Rideau Hall this year to make the request of Her Excellency.

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