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Canadian democracy may have too many unwritten rules


Some of the basic rules of Canadian democracy exist not as laws or regulations, but as unwritten conventions. That’s supposed to be a feature, not a bug — a way of allowing for a useful degree of adaptability and flexibility. 

But perhaps a few things would be better off written down.

“To have a lack of clarity around these issues that are so central to the proper functioning of our democracy is to invite the kind of toxic debates and intractable disputes that we see too often now in western democracies,” NDP MP Daniel Blaikie told the House of Commons last week.

“The way to defend this is to seek the maximum amount of clarity before we are in a crisis.”

Blaikie has tabled a motion in the House of Commons that would put some big things in writing — most importantly, the confidence convention.

The bedrock principle of parliamentary democracy is the idea that a government must maintain the confidence of the elected legislature. But while the general notion is easy to understand, in practice almost everything about confidence is open to interpretation.

There is no law or rule that specifies what counts as a matter of “confidence” — which votes in the House of Commons are so serious that defeat for the government side would necessarily require a new election. And recent history has shown that a prime minister who wants to get away from a vote of non-confidence can delay matters, either by changing the schedule of business in the House or by adjourning Parliament via prorogation.

Short of a constitutional amendment, there is not much that can be done to absolutely curtail the prime minister’s ability to ask the governor general to prorogue Parliament. But Blaikie would at least add a new wrinkle.

Under his motion, the standing orders of the House — the rules by which the House governs its own business — would be amended to require an explicit vote of confidence either before or immediately after Parliament is prorogued. 

In theory, that might force a prime minister to think twice before walking over to Rideau Hall. And the guarantee of a confidence vote offers some assurance that a government won’t escape judgment.

A man in a suit gestures while speaking into a microphone.
Prime Minister Justin Trudeau’s government prorogued Parliament in 2020 at the height of a controversy involving WE Charity. (Sean Kilpatrick/The Canadian Press)

When Blaikie opened debate on his motion last Friday, he led with the issue of prorogation — perhaps for a good reason. Questionable uses of prorogation in 2008, 2010 and 2020 have turned what should be a relatively benign procedure into a source of controversy. A proposal to address prorogation is about as splashy as parliamentary reform can get.

But the other — less splashy — changes in Blaikie’s motion are arguably more intriguing and could be even more consequential.

The confidence game

Of the various initiatives that come before the House of Commons — government legislation, spending plans, opposition motions, private members’ bills — a handful of items are broadly considered de facto matters of confidence. These include the speech from the throne, the budget and the estimates (through which the House approves the government’s specific budget plans). There can also be motions that explicitly mention the House’s confidence — or lack thereof — in the government.

But nothing about what constitutes a matter of confidence is written into law anywhere — and that leaves no small amount of room for debate.

Finance Minister Paul Martin responds to questions during Question Period in the House of Commons in Ottawa Monday, March 15, 1999 as a full visitors gallery watches the proceedings.
Prime Minister Paul Martin’s government disagreed with the opposition on whether it had lost a confidence vote. (Tom Hanson/The Canadian Press)

In 2005, for instance, the opposition and Paul Martin’s Liberal government disagreed over whether the House had voted non-confidence in the government. In 1968, it briefly seemed like Lester Pearson might have to call for a new election after his Liberals accidentally lost a vote on a tax bill; instead, Pearson’s government put a new motion in front of the House that declared the previous vote had not been a matter of confidence.

In theory, a government could try to ignore a defeat on even a budget or throne speech. But it is far more common for governments to do the reverse and declare that every government bill or opposition motion before the House amounts to a matter of confidence. That can have the effect of hardening positions on all sides, making it much more difficult for MPs to break with their party — or for opposition parties to vote against the government.

Blaikie’s motion would amend the standing orders to specify that votes on the budget, the throne speech and estimates — the traditional confidence votes — are automatically considered matters of confidence. It would then be considered “contempt of Parliament” for the government to deem any other matter a confidence vote.

At the same time, his motion also would create a formal mechanism for opposition parties to call for votes of non-confidence, making it harder for the government to manipulate the House agenda to avoid direct challenges from the opposition.

The combined effect of those two changes could be increased accountability for the government and more independence for MPs. At the very least, they offer clarity.

The case for clarity

“We are a 21st-century democracy,” Blaikie told the House last week. “These are things we should be able to put our heads together on to sort out, so it is crystal clear to Canadians — who should not have to get a PhD in Canadian constitutional history to understand what the heck is going on in this place.”

Such rules wouldn’t necessarily account for every possible future scenario — and it’s very hard to bind the actions of a prime minister. Nothing that can be written into the standing orders could prevent the prime minister from asking for Parliament to be dissolved. And maybe only a governor general could force an election on a prime minister who absolutely refused to acknowledge a vote of non-confidence.

But while unwritten conventions offer flexibility, recent political events in Canada and abroad make the case for less ambiguity and greater certainty about the rules.

“These questions too often only come up in the public debate and in Parliament when there’s a hot button issue and it’s a big conflict and it’s happening right now. And then the question is, how are we going to get out of the crisis?” Blaikie said in an interview last week.

“It’s not, have we done our homework here? Have we set ourselves up for success or have we set ourselves up for failure?

“And I think more often than not, we’ve set ourselves up for failure from the point of view of the public interest, because that lack of clarity is an opportunity for people in positions of power and influence — in this case, particularly the prime minister — to take advantage of situations and to resolve them in their own favour rather than according to a fair process that respects all of the legitimate interests that are at the table.”



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