The proper functioning of Canada's parliamentary democracy relies on acceptance of our constitutional conventions. Yet, political disagreements among political actors during both the 2008 parliamentary crisis and the 2011 federal election campaign cast serious doubt on such acceptance. This article raises the question: how can our constitutional conventions be clarified to prevent future constitutional crises? Both New Zealand and the United Kingdom have implemented Cabinet Manuals to codify their constitutional conventions in a single document. Drawing on these examples, this paper argues for the adoption of a Canadian Cabinet Manual as a step towards preventing constitutional crisis, while creating an important informational tool for politicians, public servants, and the public alike.
For Canada's parliamentary democracy to function properly, it is integral that key political actors agree on the fundamentals of our constitution. However, with the recent prevalence of minority governments, this agreement has been called into question. During both the December 2008 'parliamentary crisis' and the 2011 federal election campaign, the Conservative Party of Canada, led by Prime Minister Stephen Harper, appeared to hold markedly different views on key constitutional conventions than those espoused by opposition leaders and constitutional experts. This lack of consensus led some to fear that a situation may arise in the near future in which lack of agreement on conventions governing the Governor General's reserve powers could plunge Canada into a serious constitutional crisis.
In order to discuss the lack of consensus on Canada's constitutional conventions and argue why they ought to be codified, it is first necessary to define what conventions are and explain how they fit into our constitutional framework. The difficulty in understanding and interpreting constitutional conventions comes from the fact that they:
...give guidance but are not absolute clarion calls for one specific course of action. Nor are conventions legally binding like laws. Conventions are flexible and adapt and change over time as circumstances change. (1)
The Canadian constitution is not a single document but comprised of a large number of written texts and a host of unwritten principles and rules that fill out and explain the texts. These unwritten rules are called constitutional conventions, which Andrew Heard defines as "informal rules that bind political actors to behave in a certain way .... These conventions impose obligations because they protect the basic constitutional principles that would be seriously harmed if they were ignored."2
For example, conventions establish the existence and function of the Prime Minister and Cabinet, prevent the Governor General from hiring and firing members of the Privy Council at will, require the government to resign or call an election if it loses a clear vote of confidence, and prevent the federal government from disallowing provincial laws. In this sense, "conventions are about defining or restricting the exercise of formal powers that exist in law but are circumscribed in practice."3
A key difference between conventions and written elements of our constitution is that conventions cannot be enforced by the courts. The punishment for failing to abide by a convention is, therefore, strictly political with the power for enforcement lying with other institutions of government, such as the Governor General, the Houses of Parliament, or ultimately the electorate. However, it is important to note that although courts cannot enforce them, conventions remain vital to questions of constitutionality. In its landmark ruling on the Patriation Reference, 1981, the Supreme Court of Canada stated succinctly and unequivocally that "constitutional conventions plus constitutional law equal the total constitution of the country." In the Court's view, an act that violates a convention can correctly be called unconstitutional even though it has no direct legal consequences.
There remains broad agreement on the vast majority of constitutional conventions in Canada today. Logically, "constitutional conventions are only effective as rules of proper conduct when the relevant actors accept that they are bound to observe them."4 However, as conventions are not comprehensively written down in one place, there is room for disagreement over what is appropriate for a political actor in particular circumstances. This lack of consensus can lead to potential or real parliamentary crises. This is precisely what happened in 2008 and what many feared could happen after the 2011 election campaign when Prime Minister Harper made it clear that he did not agree with certain conventions regarding government formation.
In both cases, he questioned whether it would be legitimate for the Governor General to call on a group of opposition parties to form a government, without first having another election. Most experts argued that such an action would be in line with conventions on confidence and responsible government, and therefore perfectly legitimate.
The Conventions at Stake
Canada's parliamentary democracy is based on responsible government which is a one-rule system. "The rule is that the government must have the confidence of the elected House of Commons." (5) This principle allows the Cabinet to make decisions on behalf of the Crown. In other words, despite the vast legal powers vested in the Crown and the Governor General, they will only be exercised on the advice of ministers who command the confidence of the House of Commons. This principle has enjoyed support from political leaders since the founding of Canada.6
However, there are key exceptions to this convention as the Governor General still retains reserve or prerogative powers where he or she may act on his or her own discretion and even refuse a request of the …
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