GOOD READING: Kate Daley, “On the inconvenience of being trans”

I’m a little late to this, but in June, academic Kate Daley wrote a poignant and personal piece about washroom access and the power dynamics that go along with it.

Daley’s post is a good reminder for allies to look no further than our most basic daily experiences when we consider the challenges associated with being trans*.

Here is the link: On the inconvenience of being trans

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Liberty: First, Do No Harm

At Illuminated By Street Lamps, I have posted an analysis of the liberties ─ negative and positive ─ described by Western canonical political theorists John Stuart Mill and Jean-Jacques Rousseau.

I have both compared and contrasted the approaches taken by each thinker.

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Mill

In a nutshell, I argue Mill’s Harm Principle is still an appropriate tool to check absolute negative liberty and that Rousseau’s insistence that an individual must surrender personal appetites to a collective Sovereign in order for humanity to benefit as a whole is coercive totalitarianism.

Here is the link: Liberty: Revealing J.S. Mill As A Visionary And J-J Rousseau As A Totalitarian

The post serves two purposes:

  • It acts as a gateway to my theories about both types of liberty and my view that debates about liberty remain as relevant today as they did during the times of Mill and Rousseau.
  • It serves as a lead-in to a post I plan to write about the proposed Charter of Quebec Values.

GOOD READING: An Introduction

From time to time, I will link to posts or other writing about power that I think is worth reading. There are a lot of very insightful people out there and I think their work should be shared.

Posts here that link to work crafted by other writers will be noted as GOOD READING.

I hope you get as much out of the author’s thoughts as I did.

On Prorogation

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Prime Minister Stephen Harper prorogued Parliament on September 13, suspending it until October 16.

I believe the Executive’s privilege of suspending the Legislature runs counter to a healthy democracy. Prorogation has been arguably abused many times to allow the Executive to avoid scrutiny.

In the post below, I’ve traced out what prorogation is, some recent examples and the current Constitutional convention that guides its use in Canada.

I also make a suggestion by which the power of prorogation can be handed to the Legislature. This would allow for greater responsibility of the Executive to the Legislature.


 

When a minority federal government facing a confidence vote over a rejected economic update suspended Parliament in 2008, a constitutional expert told CBC News the move had set a “dangerous precedent.”[1] Several years later, when a minority government in Ontario used the same procedure, known as prorogation, to pull the plug on the legislature amid a scandal that had birthed public hearings into the moving of gas plants, The Globe and Mail called it “offensive.”[2] Prorogation, executed by the monarch’s representative in Canada at the request of a Prime Minister or Premier, was originally intended to be a tool for resetting the government’s agenda when its tasks are accomplished. The essence of prorogation changes, however, when a democratically-elected government asks the monarchy to approve a closure of the legislature amid heightened scrutiny. Prorogation is then no longer a simple procedural exercise ─ it is a fundamentally undemocratic action by governments to avoid consequences. This runs counter to the idea that governments should be accountable to citizens, through elected members of the legislature. There are, however, solutions to reform this practice and hand the legislature back to legislators ─ those who control the government’s ability to continue governing.

Prorogation: An overview and problems
Prorogation is a common practice, designed to end a session of the legislature when the government’s business is accomplished, Johannes Wheeldon notes in “Actors, targets, and guardians: using routine activities theory to explore the 2008 decision to prorogue parliament in Canada”.[3] Typically, prorogation involves the monarch’s representative in Canada (the Governor General, federally, or Lieutenant-Governor, provincially) approving a request from the first minister (either the Prime Minister or Premier) to suspend the legislative session. During the period the legislature is prorogued, “all government bills cease to exist and all committee work stops” and such a move is logical when government business is done, Wheeldon adds.[4] Recently, however, two minority governments have prorogued legislative sessions during periods that their ability to govern was being fervently questioned and government business was not complete. The federal Conservative government did so in 2008 after introducing an economic update that opposition parties refused to support and which threatened to form an alternative governing coalition[5] and Ontario’s provincial Liberal government did so in October 2012, amid public hearings about the axing of controversial gas plants. [6]

Prorogation as a monarchical constitutional convention
The source of prorogation as a governmental tool in Canada, meanwhile, cannot be found in Canadian constitutional documents. C.E.S. (Ned) Franks explains in “To Prorogue or Not to Prorogue: Did the Governor General Make the Right Decision?” that the monarch’s representative, has the authority to accept or reject the advice of a first minister based on the power of a constitutional convention, or unwritten procedure.[7] This exclusive relationship between the unelected monarchy and a first minister who can single-handedly advocate for the suspension of legislative debate however, underscores the anti-democratic nature of prorogation as it is currently practised in Canada at both the federal and provincial levels. This argument is bolstered via commentary by Rejean Pelletier in “Responsible Government: Victory or Defeat for Parliament”. He argues that Canadian governance has evolved to allow first ministers to function as elected monarchs due to the powers they hold and other ministers do not. Dissolution of Parliament is among those powers, Pelletier notes. [8] While the executive branch, for which the first minister sits as chairperson, can suspend the legislature in Canadian politics, such power is supposed to be balanced by the executive relying on the confidence of the legislature to continue governing, Pelletier adds.[9] But the legislature is not asked if it has confidence in the government before the power of prorogation is used. This point is important since the official opposition soundly denounced prorogation in the media in 2008 and 2012. Taking this further, there is also the question of whether a government is legitimately employing prorogation. In “Variety Among Constitutional Conventions”, Andrew D. Heard notes that several factors explain why constitutional conventions work. One of those factors is the level of agreement about the principal behind the convention, Heard notes. But Heard argues agreement should not only be restricted to political actors. It should also include academics, judges and interested citizens. “In order for conventions to operate most effectively as rules of critical morality, rather than as the private mores of the particular politicians involved in a given incident, it appears that the consensus which supports a rule should be drawn from as wide a range of interested individuals as possible,” he adds.[10]

Handing the legislature back to legislators
Remedying this democratic deficit and allowing legislators to control the lifespan of the legislative session would not be a simple process but arguably a possibility. Reaching a national consensus for constitutional amendments has proven difficult in the past. For example, the failure of the Meech Lake Accord in 1987, which attempted to convince Quebec to officially consent to the Constitution of 1982, is an example of a failure to get large-scale support across Canada. With this as context, there may be another way to hand prorogation to the legislature, one province at a time: Section 45 of the Constitution Act, 1982, one of several sections that provide guidelines for amending the constitution. It reads: “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.”[11] In “Living with the Amending Procedures: Prospects for Future Constitutional Reform in Canada”, Warren J. Newman states that Section 45, has been interpreted to provide authority over “the power to define the privileges and immunities of members of a legislative assembly; to increase the number of members of a provincial upper house, the legislative council; to abolish provincial upper houses entirely; and to enact laws bearing upon an institution or principle of government.”[12] Given that one of the most important concepts in Canadian governance is Responsible Government, under which the reigning government can only rule with the confidence of the parliament, the institution of prorogation must be a natural test of this confidence. That confidence test also refuses governments the ability to avoid accountability during times of scandal by suspending the committees that form part of the business of the legislature. What Section 45 can’t do, Newman says, is be used to go around the authority of the Lieutenant-Governor. [13] But requiring a vote of the legislature before Ontario’s government session is dissolved does not attempt to bypass the authority of the Lieutenant-Governor. The monarch’s representative would continue to play the same ceremonial, conventional role as it does currently ─ to approve dissolution.

Conclusions
That power to dissolve a sitting session of the legislature, the house of the people, sits exclusively with the first minister and the monarch’s representative is fundamentally undemocratic when used to avoid scrutiny. First ministers and their cabinets are elected to ridings just like any other member of the legislature. But that they hold the ability to dissolve the legislature without consultation of the people and only the monarchy is an insult to the notion of Responsible Government, specifically, and democracy, more generally. Reform of prorogation to require the first minister to obtain a vote of the legislature does not alter the role of the monarch’s representative in Canada. The only difference between this and the current practice would be that instead of the first minister approaching the monarch’s representative for dissolution, the request would be made through a message from the legislature. During majority governments, those opposed to a prorogation would have their voices heard and officially counted ─ a right they are currently not afforded. In minority governments, however, this reform could block those who would seek to avoid scrutiny of government action by suspending the legislature. Action such as this by one provincial legislature may be the catalyst for other legislatures to do the same, potentially leading to nationwide reform of prorogation and forcing Ottawa’s hand to democratize the practice at the federal level.


[1] “Jean’s decision sets ‘very dangerous’ precedent: constitutional expert,” CBC News, http://www.cbc.ca/news/canada/story/2008/12/04/constitution-expert.html (accessed November 23, 2012).

[2] “Ontario Liberals record tarnished by prorogation,” The Globe and Mail, http://www.theglobeandmail.com/commentary/editorials/ontario-liberals-record-tarnished-by-prorogation/article4629452/ (accessed November 23, 2012).

[3] Johannes Wheeldon, “Actors, targets, and guardians: using routine activities theory to explore the 2008 decision to prorogue parliament in Canada,” Canadian Journal of Sociology 36(1) (2011), 62.

[4] Ibid.

[5] Ian Austen, “Canadian Leader Shuts Parliament,” The New York Times, http://www.nytimes.com/2008/12/05/world/americas/05canada.html (accessed November 22, 2012).

[6] “Ontario’s prorogation due to ‘spurious, phoney contempt motion,’ McGuinty says,” The Canadian Press via National Post, http://news.nationalpost.com/2012/10/24/ontarios-prorogation-due-to-spurious-phoney-contempt-motion-mcguinty-says/ (accessed November 22, 2012).

[7] C.E.S. (Ned) Franks, “To Prorogue or Not to Prorogue: Did the Governor General Make the Right Decision?” in Parliamentary Democracy In Crisis, ed. Peter H. Russell and Lorne Sossin (Toronto: University of Toronto Press, 2009), 33-34.

[8] Rejean Pelletier, “Responsible Government: Victory or Defeat for Parliament,” in Taking Stock of 150 Years of Responsible Government in Canada, ed. F. Leslie Seidle and Louis Massicotte (Ottawa: Canadian Study of Parliament Group, 1998), 52-55.

[9] Ibid., 55-56.

[10] Andrew D. Heard, “Variety Among Constitutional Conventions,” Canadian Journal of Political Science 20(1) (1989), 68-70.

[11] Government of Canada, Constitution Act, 1982, Sec. 45, http://lois.justice.gc.ca/eng/Const/page-16.html (accessed November 21, 2012).

[12] Warren J. Newman, “Living with the Amending Procedures: Prospects for Future Constitutional Reform in Canada,” Supreme Court of Canada Law Review 37 (2007), 390.

[13] Newman, “Living with the Amending Procedures: Prospects for Future Constitutional Reform in Canada,” 390.