Forcing all Supreme Court judges to be French or Quebecers

[capricorn]

Some of you may have missed it, but a couple of months back the Bloq Quebecois, the Liberal Party and the NDP teamed up to insist that all future Supreme Court Justices be from Quebec or be French from other provinces.

This was done for obvious reasons. The Quebec MPs wanted more power for Quebec and Francophones. The Liberal Party wanted to grovel and ingratiate itself to Quebecers, and the NDP just hate anyone who isn't some kind of minority and are always eager to stick it to them.

I wonder what happened to Denis Coderre's original bill which looked as the precursor to Godin's Bill C-559?

A private member’s bill to be tabled Thursday by Liberal MP Denis Coderre, would amend the law to require judges on Canada’s top court to be able to understand cases pleaded in either of Canada’s two official languages.

Coderre says he is tabling the bill because it is important for all Canadians to have equal access to justice, regardless of whether they speak English or French.

“I don’t think that I am a second-class citizen,” said Coderre, MP for the north-end Montreal riding of Bourassa. “I think that as a francophone I have the right to make sure that I have access to all the tools to work with and they will provide me with resources including a full understanding of my case.”

http://www.canada.com/topics/news/politics/story.html?id=077621e8-60dd-4f08-83ca-d0332850cd0e

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Here is Yvon Godin's rationale on the matter.

First of all, bear in mind that the laws of Canada are not written in one language and subsequently translated. They are drafted in parallel, in both official languages, and neither version takes precedence over the other. The Official Languages Act (1985, c. 31 (4th Supp.) and the Canadian Charter of Rights and Freedoms are in place to preserve this historic accomplishment.

The Official Languages Act states that:

Both versions simultaneous and equally authoritative

13. Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.

The Canadian Charter of Rights and Freedoms reads as follows:

Parliamentary statutes and records

18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

Consequently, Canadian law is made up of two languages that are interwoven, inextricably linked. If a judge does not recognize that neither the English nor the French version of the law takes precedence over the other, and that the two are one, how can that judge fully enforce the law? How can that judge understand the law, without understanding it as it is? The judge will no longer embody impartiality, and rights will be threatened.

Based on this principle, language is a qualification like all others required to be a judge. The aspiring judge should focus his or her training accordingly. Simultaneous interpretation and translation are not enough: they are the result of an interpretation which often tends to stray from the original meaning.

http://www.thecourt.ca/2008/09/05/should-supreme-court-judges-be-required-to-be-bilingual/

I can't figure what the problem is with the way things are going along presently. There is no need to write these provisions into law. It simply looks like another act of zealotry from the usual suspects. Also, it is one more issue the opposition will use to paint the Conservatives as racist, intolerant and divisive. Par for the course in today's Canadian politics.

[msdogfood]

Section 14 of the Charter applies to the parties (i.e., the plaintiff and the defendant) in a trial, not to a judge. In fact, it does not even applies to the lawyers for the two parties, as stated in New Brunswick court decision (http://www.canlii.org/en/nb/nbqb/doc/1986/1986canlii92/1986canlii92.html).

As for the argument that the law is discriminatory, it falls flat on its face. The same requirement applies to ALL posible candidates, and rests on what skills (linguistic in this case)are needed for the job. That theskills are not absolutely necessary does not make the requirement discriminatory.

OK the title on the thed is misleading The new law wants all Supreme Court judges to speak understand both languages!

AS of now the linguistic are not absolutely necessary but under the new law if past it will!

& there is a shortage of bilingual judges

Has the Supreme Court wahd in on the New Brunswick court decision???.

thanks.

[Shwa]

For political reasons. It started out quite sensibly with a requirement that the public had a right to service in either official language (something I agree with). But they continued to expand the program, and the real kicker was that you had a right to be supervised, and to have all internal communications given to you in the language of your choice. This is NOT to help the public, it is political, for internal only, and the vast majority of bilingual positions are due to this. All managers and supervisors, all executives at the HQ level, IT people, HR people, anyone who deals with internal clients had to be bilingual. Even if you almost never, or even never have to deal with someone of the opposite language, the job is still designated bilingual.

So are you saying that an employee of the government getting supervision and evaluation in the official language of their choice is purely 'political' or done for 'political' reasons' and is thus causes unfairness?

You know Argus, I get a sense that you are fully capable of understanding how the current bureacracy works and for what reasons some things are as they are. However, by saying, on the one hand, citizens should get get government services in the official language of their choice, but on the other hand saying employees delivering those services should not get government services in the language of their choice well, that is stretching things a wee bit thin don't you think?

OK, so let's assume for a minute that it is unfair that there is so much unnecessary bilingualism at HQ. Then what is your design for an apolitical solution to this conundrum?

[Argus]

So are you saying that an employee of the government getting supervision and evaluation in the official language of their choice is purely 'political' or done for 'political' reasons' and is thus causes unfairness?

You know Argus, I get a sense that you are fully capable of understanding how the current bureacracy works and for what reasons some things are as they are. However, by saying, on the one hand, citizens should get get government services in the official language of their choice, but on the other hand saying employees delivering those services should not get government services in the language of their choice well, that is stretching things a wee bit thin don't you think?

No I don't. Outside of Quebec, you cannot get hired by the federal government unless you can speak English. Therefore all federal employees outside Quebec are fully capable of understanding spoken and written English. In the case of Francophones occupying bilingual positions in particular (virtually all do) their very hiring, and all subsequent promotions, was and were based on their ability to communicate in both official languages.

Let me give an example from the private sector. Suppose you decide to hire a guy who can speak French because a small percentage of your clients sometimes call in in French. You hire this guy specifically because he's bilingual, and then when you try to tell him what to do he holds up his hand, shakes his head, and says "No. I insist you only communicate to me in the language of my choice. I am French. You will communicate all instructions to me in French."

How long before you fire him?

These people are specifically hired, and get a financial bonus, as well as access to a wide variety of internal promotions specifically because they are bilingual. To then turn around and say they have the right not to have to speak the other official language during internal communication is taking linguistic rights to absurd levels. I have no problem with a citizen being able to communicate in their own language because many citizens can't speak a second language well enough to communicate. But I do have a problem with distorting hiring and promotions and doing a disservice to Canada by excluding 95% of the available talent and skill in favour of a small number of people who can speak both languages when there is no real need for that skill. I have a problem with sublimating real qualifications; leadership, intelligence, teamwork, education, to a secondary skill set which is of no real benefit to the organization.

OK, so let's assume for a minute that it is unfair that there is so much unnecessary bilingualism at HQ. Then what is your design for an apolitical solution to this conundrum?

The funny thing is that even internally, there are often phone selection requirements for when you call up a desk, be it IT, HR or whatever. If English, press , if French, press 2. You've seen it many times before, I know. But for external communications the government insists EVERYONE be bilingual. This means that even though 80% or more of communication with the public is in English 90% of the jobs go to Francophones. That's not necessary. You can simply have them press a button when they call in and direct them to a specific group - as used to happen, btw. For internal communications, the language of work should be English in TROC, French in Quebec. Period. Jobs which have to deal with both areas can be bilingual, and there should be someone available who can speak both languages in any service position. But you don't need everyone to be bilingual, let alone all managers and all executives, none of whom ever deal with the public.

[Guy M]

That's not necessary. You can simply have them press a button when they call in and direct them to a specific group - as used to happen, btw. For internal communications, the language of work should be English in TROC, French in Quebec. Period. Jobs which have to deal with both areas can be bilingual, and there should be someone available who can speak both languages in any service position. But you don't need everyone to be bilingual, let alone all managers and all executives, none of whom ever deal with the public.

This is largely the way things are now; in the Public Service there are designated bilingual enclaves. Northern Ontario, the NCR, Montreal, Gaspe and the Acadian peninsula. A public servant in theses area has the right to work in his/her language of preference, including english in Montreal and Gatineau.

Outside of theses areas, say Halifax or Edmonton, the language of work is english essential in the ROC or french essential in Quebec.

Edited September 1, 2010 by Guy M

[Argus]

This is largely the way things are now; in the Public Service there are designated bilingual enclaves. Northern Ontario, the NCR, Montreal, Gaspe and the Acadian peninsula. A public servant in theses area has the right to work in his/her language of preference, including english in Montreal and Gatineau.

Outside of theses areas, say Halifax or Edmonton, the language of work is english essential in the ROC or french essential in Quebec.

The language of work in HQ, in the Ottawa area has always been English. However, as more and more positions were declared "bilingual" now 2/3rds of all jobs here are bilingual, and of course, that means most have gone to Quebecers. And this basically causes a demand which is then fulfilled by the need. Ie, you might only have a small percentage of Francohpones in place, but after the bilingual requirements suddenly the majority of your work forces if French so this justifies having bilingual positions! Neat how that works, eh?

But it means that virtually every senior member of every department and agency has to be fluently bilingual - which means that they are selected from about 3% of the population - and not for their outstanding leadership skills either.

[dre]

Here's how Supreme Court judges get their jobs in Canada;

"Justices of the Supreme Court of Canada are appointed by the Governor General-in-Council, a process whereby the governor general, the viceregal representative of the Queen of Canada, makes appointments based on the advice and consent of the Queen's Privy Council for Canada." http://en.wikipedia.org/wiki/Supreme_Court_of_Canada#Appointments

So the Queen of England, through her personally selected middleman the Governor General, selects them. Who did she select for that position? Michaëlle Jean, a Haitian refugee. She wasn't even born in Canada. What qualified her for that position? Having been a journalist and CBC broadcaster. This is also the person who chooses the Prime Minister, a person granted sweeping powers, including making numerous other appointments, and who can hold the office until the day he dies unless another Party gets elected, which doesn't look very likely in our lifetimes.

The obvious question is why is the Queen of England able to appoint anything in Canada, much less the person who will then singlehandedly decide who will have dictatorial powers over the nation? Look how that turned out. This might sound crazy but wouldn't elections by the citizens of Canada be a more appropriate way to decide who rules the country than the Queen doing it for us through her appointee, who apparently requires no political experience whatsoever? I have to think a CBC broadcaster is not the best choice for that position, especially when they are an immigrant who, for all we know, might hold a grudge against a country full of white folk and want to screw it up as much as possible by appointing a useless nerd as Prime Minister, a guy who dances like he has cerebral palsy and sings "I'll get high with a little help from my friends" with such talent that all four judges on "Canada Doesn't Have Talent" would hit the gong button simultaneously.

When will Canadians get an operation to attach cojones and then have a war of independence with Britain, who are still ruling the country through their chosen proxies? When will Canada actually become a real republic with an actual elected President and a real Constitution? Apparently never. We'll always be "the colonies". When will somebody actually start the Canadian Republican Party and tell Britain to screw off or face the consequences because we're tired of being the Queen's lackies. What a a pathetic excuse for a democratic and supposedly independent country. We have no say whatsoever in the two highest positions in the country. We get to elect MPs from one of three Parties (the only ones with a chance in hell of getting elected), each one of which is worse than the other. That's it. That's all the democracy we get. I guess that's all we deserve if we actually stand for it. Now where's a shipment of British tea? We have a party to get started and we're a few centuries late already.

If youre suggesting elected judges, thats a REALLY bad idea.

[Shwa]

How long before you fire him?

But your private sector example completely sidesteps the fact that citizens have a right to served in one of the two official languages and, with the federal government, that includes supervisions and evaluations for French employees. So you didn't answer the question.

I have a problem with sublimating real qualifications; leadership, intelligence, teamwork, education, to a secondary skill set which is of no real benefit to the organization.

Most people would have a problem with that I think. If it could somehow be proven that bilingualism renders leadership, intelligence, teamwork and education skills to a secondary status, especially in the modern bureaucracy where potentiality is factored in on most hires where those skills are required.

For internal communications, the language of work should be English in TROC, French in Quebec. Period. Jobs which have to deal with both areas can be bilingual, and there should be someone available who can speak both languages in any service position. But you don't need everyone to be bilingual, let alone all managers and all executives, none of whom ever deal with the public.

You see? This is the sort of thing I like to read, a solution that can be looked at instead of grumpy grumbling.

Now, my solution would be to move as many public service jobs out of Ottawa as possible, especially so nowadays with all the electronic and computing ability. Virtual government. Distribute the wealth yes? Spread out all those offices and call-centres, research facilities and department to the rest of the country, including Quebec. Make "HQ" really, really small.

One of the side benefits to doing this would be to leverage all of the "leadership, intelligence, teamwork and education skills" that exist in the rest of the country compared to the mediocre management talent pool that currently exists in Ottawa.

In other words, devolve and decentralize.

[Visionseeker]

Argus, you are being deliberately controversial.

We have employed quotas in Canada since the British arrived in 1759. For example, the British parliament's BNA Act of 1867 requires that Canada's Supreme Court have three justices from Quebec.

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Quota - or a specific code? Like Bambino, I sometimes prefer established tradition.

I think that it's an accepted tradition/convention in Canada now that all federal PMs are bilingual. There is no law requiring this, but it is an accepted convention. (Pearson was the last unilingual federal PM - and even he and Diefenbaker made attempts at speaking French. Campbell's French was admittedly iffy.) Moreover, it is understood that anglophone federal cabinet ministers will have to deal with French texts/memos, and francophone federal cabinet ministers will have to sit through meetings in English.

For several decades now, parents across Canada have known about this (if they didn't before. English Catholic parents in particular). In English Canada nowadays, they send their children to immersion schools and in Quebec, they let their kids listen to American music. Fortunately now, we in Canada have a large number of people who can manage in another language. No purist, I happen to think that's a good thing.

I only object to passing this law. In my mind, no PM should propose a Supreme Court justice who cannot at least read French and English, and be able to have an accented conversation in both languages.

No law is required for such a tradition or convention.

I agree August. This should come about as a matter of convention rather than de jure.

Edited September 2, 2010 by Visionseeker

[icman]

Uh, I am not exactly in a position to start a new political party, being of low income. Perhaps you could get off YOUR lazy ass and take care of it for me, or are you happy with being a citizen of a British colony. I think you like it. I think you like the Prime Minister being appointed by a Haitian radio broadcaster and I think you liked it when Adrian Clarkson, a TV talk show host was appointing the PM too. In fact, I think you'll love it when Bubbles from Trailer Park Boys is appointed by the Queen to be the GG. Now go kiss the Queen's hand like a good tea drinking Brit, instead of criticizing me.

Jefferson, just because you are low income doesn't mean you can't educate yourself a little better. Clearly you have access to the Internet, so please go find out more about how your government functions.

The Queen USED to pick the GG - she does no longer. Since Trudeau repatriated the Constitution to Canada in 1982, the PMO selects the GG. The Queen may ratify the choice, but that is only ceremonial - the true power to select the GG is in the hands of the PM. The PMO can remove the GG and reappoint another, too, at any time; and though I am certain that such a move would be very unpopular with most Canadians, I am equally certain that Harper would do it if the GG got in his way. Harper has made it abundantly clear over the last 6 years that he cares not one whit what "most Canadians" want.

I wasn't displeased with Martin's choice of Michaelle Jean when it happened. She only really showed how useless she was as a GG when she blinked playing chicken with Harper and prorogued Parliament that first time. And Adrianne Clarkson was never really tested. I wasn't unhappy with her as GG, either, and she seemed intelligent and thoughtfull in interviews and news reels. She never did anything controversial during her tenure, and worked hard to improve Canada's image abroad. I think you are just prejudiced against their origins, and haven't really looked at their track records.

[ToadBrother]

Jefferson, just because you are low income doesn't mean you can't educate yourself a little better. Clearly you have access to the Internet, so please go find out more about how your government functions.

The Queen USED to pick the GG - she does no longer. Since Trudeau repatriated the Constitution to Canada in 1982, the PMO selects the GG. The Queen may ratify the choice, but that is only ceremonial - the true power to select the GG is in the hands of the PM. The PMO can remove the GG and reappoint another, too, at any time; and though I am certain that such a move would be very unpopular with most Canadians, I am equally certain that Harper would do it if the GG got in his way. Harper has made it abundantly clear over the last 6 years that he cares not one whit what "most Canadians" want.

This is bizarre historical revisionism. For a few decades the GG was picked by the Sovereign on the advice of the British Government. That changed as Canada gained more independence, so the role of advising the Sovereign shifted to the Canadian PM. The Sovereign never appointed GGs on their own, it was always essentially a political appointment.

I wasn't displeased with Martin's choice of Michaelle Jean when it happened. She only really showed how useless she was as a GG when she blinked playing chicken with Harper and prorogued Parliament that first time. And Adrianne Clarkson was never really tested. I wasn't unhappy with her as GG, either, and she seemed intelligent and thoughtfull in interviews and news reels. She never did anything controversial during her tenure, and worked hard to improve Canada's image abroad. I think you are just prejudiced against their origins, and haven't really looked at their track records.

I'm not sure why you would be upset at Madame Jean. The number of times the Sovereign or their Viceroy has refused the advice of a Prime Minister in the last hundred years can be counted on one hand. For the GG to refuse the request of a Prime Minister with the confidence of Parliament to prorogue Parliament would create a constitutional crisis. Now we might argue that that crisis was rightly instigated, but never the less, it is not something that should ever be done lightly.

As it is, there was at least a "semi-precedent" for proroguing Parliament at the request of a Prime Minister who was in trouble with the House, and that was no less than Sir John A. MacDonald himself, who asked the Earl of Dufferin to prorogue the House to evade an inevitable censure by the House over the Pacific Scandal. By all accounts, the Earl wrote the Imperial Privy Council to try to get advice on how to handle this, and basically got back a response of "Use your discretion but don't do the wrong thing" and ultimately decided that the Governor General had no business refusing constitutionally justifiable advice of his government, and granted MacDonald his prorogation (not that it did Sir John A. much good, he ended up resigning over the scandal anyways). This decision, I'm certain, guided Madame Jean's hand, demonstrating that even where the will of the House might be temporarily thwarted, it took a good deal more than a brief prorogation for a GG to invoke their Reserve Powers to defy the Government.

For some time I thought the prorogation was a bad thing, in large part because I think using it to evade a confidence vote is a horrible precedent. We finally did learn late last year from one of the constitutional experts that advised Madame Jean that Harper didn't get entirely everything he wanted, he was granted a brief prorogation but was told by the Governor General that when Parliament returned he must submit a budget that the House would accept (in other words "I'll hit the pause button once, but if you force a confidence motion again, I'll let you fall"). This is also well in line with the Governor General's powers to assure good and responsible government, and quite frankly I now applaud the decision. It was clear from the way the Coalition fell apart within weeks of the prorogation that it had no business trying to form a government, and at the same time Harper was rightfully put in his place and forced to play nice with Parliament.

Edited April 16, 2011 by ToadBrother

[icman]

If youre suggesting elected judges, thats a REALLY bad idea.

I agree. In fact, I was just having this discussion with my colleague yesterday.

The Supreme Court of Canada is largely apolitical in nature. They have VERY specific jobs - rule on the cases that the appellate courts can't figure out or totally screw up, and rule on the Constitutionality (and therefore validity) of various laws enacted by the legislative branches of the government. These jobs require enormous legal rigour, philosophical rigour, and laserlike focus on the law as a body of work. Popular opinion is not relevant to the job of the Supreme Court. If the public doesn't like a ruling by the Supreme Court on a particular issue, the solution is to write a better law that will more likely reach the desired outcome than whatever piece of crap law which was enacted and led to the ruling.

Take a look at the decriminalization of marijuana position taken by the Supreme Court recently. Some people believe that the Court is writing law from the bench and saying that they will legalize pot. These people are victims of three things - bad reporting, broken telephone, and their own prejudices. The SCC said that the decriminalization law as written is unconstitutional, and leads essentially to the legalization of marijuana. That is a VERY different statement, but is also apolitical. The judgement says, if you want pot to be decriminalized, then remove laws making it illegal. If you want it to be illegal, make is illegal. But the law as it stands does not pass the test of Constitutionality.

Making the SCC Justice positions elected would be a disaster. It would introduce another body to the government which has to pander to a base to get elected. And therefore it would change the nature of the job from ensuring the consistency of the law and its application to writing legislation from the bench to appease voters. Then there would be no group in government whose job it was to ensure that legal consistency, and the law and its enforcement would become very inconsistent.

If there is concern about who gets to become an SCC Justice (er, like the Chairman of Air Canada, appointed to the SCC by Trudeau), then posit some selection criteria, like 10 years as a federal court judge, or equivalent experience (PhD in law, teaching at a respected law school, perhaps?) However, we trust our elected leaders (to a reasonable extent) to manage our country for us - perhaps we can trust them to appoint decent Supreme Court Justices with reasonable experience and expertise, who aren't hobos fresh off the last train.

[g_bambino]

This might sound crazy....

No, it definitely did.

[icman]

I'm not sure why you would be upset at Madame Jean. The number of times the Sovereign or their Viceroy has refused the advice of a Prime Minister in the last hundred years can be counted on one hand. For the GG to refuse the request of a Prime Minister with the confidence of Parliament to prorogue Parliament would create a constitutional crisis. Now we might argue that that crisis was rightly instigated, but never the less, it is not something that should ever be done lightly.

...

For some time I thought the prorogation was a bad thing, in large part because I think using it to evade a confidence vote is a horrible precedent. We finally did learn late last year from one of the constitutional experts that advised Madame Jean that Harper didn't get entirely everything he wanted, he was granted a brief prorogation but was told by the Governor General that when Parliament returned he must submit a budget that the House would accept (in other words "I'll hit the pause button once, but if you force a confidence motion again, I'll let you fall"). This is also well in line with the Governor General's powers to assure good and responsible government, and quite frankly I now applaud the decision. It was clear from the way the Coalition fell apart within weeks of the prorogation that it had no business trying to form a government, and at the same time Harper was rightfully put in his place and forced to play nice with Parliament.

I continue to think that proroguing Parliament to evade a confidence motion is the wrong choice. Our government has several features, and in my mind the most important one for the purpose of this discussion is the supremacy of Parliament. The PM is chosed by the GG based on essentially one criteria - can the individual gain the confidence of the House. This is because the confidence of the entire HoC is required for the PM to hold their position. This establishes the supremacy of Parliament.

When the Sovereign really was the Sovereign in fact, not just for ceremony, the GG's role could arguably be seen as superior to the House's role. As the GG is appointed by the PM, now, that is no longer the case. But the supremacy of Parliament is still in place, as the PM still requires the HoC's confidence to hold their position.

In the case of that first proroguement, MJ clearly understood the desire of the House at that moment. But by proroguing Parliament, she used her power to remove the right of Parliament to realize their will. That was her right and within her power, but by doing so she replaced the judgement of Parliament with her own judgement. To my mind, that violates the principle that the House is supreme. As I said, when the Sovereign really had the power to intervene if desired, that would make sense - the GG would be a paternalistic figure to "set the children on the right path". After 1982, that is not an appropriate view of our Parliament. And the PM should not have a stick with which to beat the House to his or her will. So MJ should not have provided the PM with that stick.

Your argument has merit, and you might yet convince me. I did not hear about the caveat she gave Harper - I have waited too long to hear her untold side of the story, and haven't been listening lately. However, she prorogued a second time at Harper's request to evade a contraversial issue, so in the end her caveat on the first proroguement meant little.

[ToadBrother]

I continue to think that proroguing Parliament to evade a confidence motion is the wrong choice. Our government has several features, and in my mind the most important one for the purpose of this discussion is the supremacy of Parliament. The PM is chosed by the GG based on essentially one criteria - can the individual gain the confidence of the House. This is because the confidence of the entire HoC is required for the PM to hold their position. This establishes the supremacy of Parliament.

When the Sovereign really was the Sovereign in fact, not just for ceremony, the GG's role could arguably be seen as superior to the House's role. As the GG is appointed by the PM, now, that is no longer the case. But the supremacy of Parliament is still in place, as the PM still requires the HoC's confidence to hold their position.

As I said, the GG was appointed during the first decades based on the advice of the British Government, so it was still ultimately a political appointment. It wasn't like the GG was a personal appointment. As Canada begin to assert its own sovereignty, it would clearly no longer do to have the British Government naming the Viceroy, so the reasonable alternative was to allow the Canadian Government to take on the British Government's role.

Your argument has merit, and you might yet convince me. I did not hear about the caveat she gave Harper - I have waited too long to hear her untold side of the story, and haven't been listening lately. However, she prorogued a second time at Harper's request to evade a contraversial issue, so in the end her caveat on the first proroguement meant little.

Madame Jean did not prorogue Parliament the second time in the midst of a potential confidence vote. Other GG's had prorogued Parliament under similar conditions, so both precedent and the still-standing fact that for a GG to refuse the advice of a Prime Minister with the confidence of the House would generate a constitutional crisis comes into play. The second prorogation did not have the elements of the first so they are not really equatable.

Let me repeat here that in a Constitutional Monarchy with responsible government, the Sovereign or the Sovereign's Viceroy can only refuse the advice of a Government that retains the confidence of Parliament under extreme conditions. So rare are those conditions that only a handful of situations have ever occurred in the last two centuries; William IV's refusal to appoint Lord Melbourne's choice for Chancellor (and subsequent dismissal of Melbourne's Ministry), the King-Byng Affair, the Lieutenant Governor of Alberta's delay of granting assent to anti-press Social Credit bills and the Australian Constitutional Crisis of 1975, are the only four that I can think of off the top of my head.

Edited April 16, 2011 by ToadBrother

[g_bambino]

Since Trudeau repatriated the Constitution to Canada in 1982, the PMO selects the GG. The Queen may ratify the choice, but that is only ceremonial - the true power to select the GG is in the hands of the PM. The PMO can remove the GG and reappoint another, too, at any time

The governor general has been appointed on the advice of the Canadian prime minister since the 1930s, when subsequent British laws, including Orders-in-Council, ceased to have effect in Canada unless the Canadian government requested and consented to them. That's how, you know, Canada became a constitutional monarchy in its own right, independent of the UK. Today, only the Canadian sovereign can appoint or dismiss the governor general. Per the tenets of responsible government, that's usually on the advice of the sitting prime minister, but the Royal Prerogative to appoint a representative is still the Queen's and she may refuse that advice if it is illegal or threatens the continuance or stability of government.

It's hard to say what would've transpired in the imaginary scenario of Harper advising the Queen to dismiss Jean had Jean refused Harper's advice on a prorogation in 2008. My guess is, the Queen would likely have either said no or deliberately dilly-dallied in making any decision until Harper had faced the House and taken responsibility not only for the budget but also for the blatantly self-serving advice he had tendered to the sovereign in the midst of the dispute.

[c/e]

Edited April 16, 2011 by g_bambino

[g_bambino]

I continue to think that proroguing Parliament to evade a confidence motion is the wrong choice.

The choice, though, both tested the fortitude of the coalition and made sure the confidence vote wouldn't be evaded. One of the stipulations placed on the granting of Harper's request for a prorogation was that parliament would be recalled soon and a passable budget would be presented. If the coalition lasted over the Christmas break (which was coming up, anyway), it could still have voted non-confidence in Harper at either the Throne Speech or the presentation of the budget. Ultimately, it was a wise choice.

[sp]

Edited April 16, 2011 by g_bambino

[PIK]

Here's how Supreme Court judges get their jobs in Canada;

"Justices of the Supreme Court of Canada are appointed by the Governor General-in-Council, a process whereby the governor general, the viceregal representative of the Queen of Canada, makes appointments based on the advice and consent of the Queen's Privy Council for Canada." http://en.wikipedia.org/wiki/Supreme_Court_of_Canada#Appointments

So the Queen of England, through her personally selected middleman the Governor General, selects them. Who did she select for that position? Michaëlle Jean, a Haitian refugee. She wasn't even born in Canada. What qualified her for that position? Having been a journalist and CBC broadcaster. This is also the person who chooses the Prime Minister, a person granted sweeping powers, including making numerous other appointments, and who can hold the office until the day he dies unless another Party gets elected, which doesn't look very likely in our lifetimes.

The obvious question is why is the Queen of England able to appoint anything in Canada, much less the person who will then singlehandedly decide who will have dictatorial powers over the nation? Look how that turned out. This might sound crazy but wouldn't elections by the citizens of Canada be a more appropriate way to decide who rules the country than the Queen doing it for us through her appointee, who apparently requires no political experience whatsoever? I have to think a CBC broadcaster is not the best choice for that position, especially when they are an immigrant who, for all we know, might hold a grudge against a country full of white folk and want to screw it up as much as possible by appointing a useless nerd as Prime Minister, a guy who dances like he has cerebral palsy and sings "I'll get high with a little help from my friends" with such talent that all four judges on "Canada Doesn't Have Talent" would hit the gong button simultaneously.

When will Canadians get an operation to attach cojones and then have a war of independence with Britain, who are still ruling the country through their chosen proxies? When will Canada actually become a real republic with an actual elected President and a real Constitution? Apparently never. We'll always be "the colonies". When will somebody actually start the Canadian Republican Party and tell Britain to screw off or face the consequences because we're tired of being the Queen's lackies. What a a pathetic excuse for a democratic and supposedly independent country. We have no say whatsoever in the two highest positions in the country. We get to elect MPs from one of three Parties (the only ones with a chance in hell of getting elected), each one of which is worse than the other. That's it. That's all the democracy we get. I guess that's all we deserve if we actually stand for it. Now where's a shipment of British tea? We have a party to get started and we're a few centuries late already.

Why, because we are canadian not american and why do you have a such a hate on for our history, canada is the greatest country around ,because of our history, so why screw with it.

[ToadBrother]

It's hard to say what would've transpired in the imaginary scenario of Harper advising the Queen to dismiss Jean had Jean refused Harper's advice on a prorogation in 2008. My guess is, the Queen would likely have either said no or deliberately dilly-dallied in making any decision until parliament had reconvened and Harper would face the House and take responsibility for the advice he had tendered to the sovereign.

Such a move, which some say was contemplated, would have put the Queen in an impossible situation, and in general terms no government save in a crisis situation should seek the Queen's direct consent on such a matter. The only other example that comes close was, again the 1975 constitutional crisis in Australia, where Whitlam apparently had contemplated asking the Queen to remove Kerr.

Some experts seem to suggest, as you do, that the Queen would have, under the circumstances, refused the Prime Minister's request. I'm not so sure. Harper still was Her Prime Minister, still enjoyed the confidence of the House, so it would not be an easy call. My feeling is that if the Queen had refused Harper's advice, the confidence vote would have been irrelevant because I can't see how the Tory Government could have stood after being rebuffed in this way. General constitutional theory, so far as I understand it, suggests that if the Sovereign or the Sovereign's Viceroy refuses the advice of a Government, that Government effectively ceases to have the confidence of the Sovereign, and the Government must resign.

[g_bambino]

Some experts seem to suggest, as you do, that the Queen would have, under the circumstances, refused the Prime Minister's request. I'm not so sure. Harper still was Her Prime Minister, still enjoyed the confidence of the House, so it would not be an easy call. My feeling is that if the Queen had refused Harper's advice, the confidence vote would have been irrelevant because I can't see how the Tory Government could have stood after being rebuffed in this way. General constitutional theory, so far as I understand it, suggests that if the Sovereign or the Sovereign's Viceroy refuses the advice of a Government, that Government effectively ceases to have the confidence of the Sovereign, and the Government must resign.

Possibly. But, then I thought of what I call the "dilly dally" tactic, which I must have insereted into my post after you'd already started responding to it. It's all speculation, of course, but I'm actually more inclined to believe that she would've refrained from giving either an immediate yes or no, letting Harper stand in the Commons and take responsibility for his budget and for abusing his privelige of advising the Queen just to save his political life. The Queen has proven herself to be quite crafty in that way.

[+]

Edited April 16, 2011 by g_bambino

[icman]

Madame Jean did not prorogue Parliament the second time in the midst of a potential confidence vote. Other GG's had prorogued Parliament under similar conditions, so both precedent and the still-standing fact that for a GG to refuse the advice of a Prime Minister with the confidence of the House would generate a constitutional crisis comes into play. The second prorogation did not have the elements of the first so they are not really equatable.

Please explain. As I understand it, there was instense scrutiny of the Government at that time on the continued practice of remanding Afghani detainees to the Afghan forces knowing that the Afghan forces would use "extraordinary" interrogation methods on those detainees, and a committee was in place to investigate the allegations. I believe there were several other committees investigating the behaviour of government officials, plus an AG report due out that would be damning to the Government. In this midst of this, rather than recess a working Parliament with unfinished business for the year to enjoy the Olympic games, the PM asked the GG to prorogue. This had the effects of dissolving all the committees hearing evidence on the legality of various Government activities (which would have to start from scratch or give up) and delaying the AG report.

Is this set of circumstances a parallel to the others that you had in mind? If the Government is Reasonable, as you have said several times, would the GG not have refused unreasonable advice from the PM in the form of a request to prorogue and called a simple recess instead?

[ToadBrother]

Please explain. As I understand it, there was instense scrutiny of the Government at that time on the continued practice of remanding Afghani detainees to the Afghan forces knowing that the Afghan forces would use "extraordinary" interrogation methods on those detainees, and a committee was in place to investigate the allegations. I believe there were several other committees investigating the behaviour of government officials, plus an AG report due out that would be damning to the Government. In this midst of this, rather than recess a working Parliament with unfinished business for the year to enjoy the Olympic games, the PM asked the GG to prorogue. This had the effects of dissolving all the committees hearing evidence on the legality of various Government activities (which would have to start from scratch or give up) and delaying the AG report.

Is this set of circumstances a parallel to the others that you had in mind? If the Government is Reasonable, as you have said several times, would the GG not have refused unreasonable advice from the PM in the form of a request to prorogue and called a simple recess instead?

I've already given an example; Sir John A.'s request that the Earl of Dufferin prorogue Parliament to kill a committee investigation into the Pacific Scandal. The GG then in fact did, as I said, attempt to get advice from the Imperial Privy Council, which was, in those days, effectively the boss of the Governor Generals of the Dominions, and was basically given a non-answer, and so after reflection, decided that he had no right to interfere with a constitutionally-legitimate request.

The situations are sufficiently similar that I think there is a direct precedent that would have informed Madame Jean.

Remember, it is not the Governor General's place to make Parliament's decisions for it. Parliament has effectively been independent of that sort of Executive interference since the Glorious Revolution. The GG is fundamentally non-partisan, and the only time he or she would directly refuse the advice of the government would be in a situation of serious risk to responsible government, and as bad as I think the Afghan detainee issue was from the perspective of Ministers trying to conceal evidence behind dubious claims of national security, that is fundamentally Parliament's fight, and in the end, Parliament won.

Edited April 16, 2011 by ToadBrother

[Smallc]

General constitutional theory, so far as I understand it, suggests that if the Sovereign or the Sovereign's Viceroy refuses the advice of a Government, that Government effectively ceases to have the confidence of the Sovereign, and the Government must resign.

As far as I understand, if the Sovereign does not have a PM who will defend their decisions, they have to find a new one who will.

[ToadBrother]

As far as I understand, if the Sovereign does not have a PM who will defend their decisions, they have to find a new one who will.

One of the things that is lacking from our system that is found in the UK is the weekly meeting with the Queen. The Queen has the right at these meetings to caution her Prime Minister, and thus there is a flow of information between the Queen and Government.

[Smallc]

One of the things that is lacking from our system that is found in the UK is the weekly meeting with the Queen.

I'm not sure how often the PM meets with the GG. We don't really hear about it.