The Status of the Caretaker Convention in Canada
Wilson, John, Canadian Parliamentary Review
The autumn issue of the Review included an article by Professor Andrew Heard on the general nature of constitutional conventions and discussed the kinds of constraints that face a government in its last days. On September 25, Professor Heard appeared before the Special Senate Committee on the Pearson Airport Agreements. At that time the Committee also heard from Professor John Wilson and Professor James Mallory. In this article Professor Wilson provides a different perspective on the nature of constitutional conventions during election periods.
Many different issues are involved in the agreements between the Government of Canada and the Pearson Development Corporation which were authorized by the Prime Minister on October 7, 1993 and signed on the same day by representatives of the Government and of the Corporation. The Special Senate Committee has examined these in some detail but it has given hardly any consideration at all to what many observers regard as the most important element of the whole question--the status of the constitutional conventions surrounding the event and the importance which should be accorded them. (1)
Indeed, this may be the only issue which has any significance in the debate which has been taking place since the new Liberal Government moved to cancel the agreements. Nearly every other aspect covers an area where there is legitimate room for different opinions about what is acceptable and what is not--in short, about different views based on different value systems--if only because such differences always exist in our society and in politics nobody is necessarily right. We are all, in our way, partisan.
But when it comes to questions of constitutional propriety we go beyond the particular merits or otherwise of the agreements and how a decision was reached. We are dealing instead with the practice of government itself--the rules and forms for decision-making in our society--and here there ought to be no room for argument. If we know what our constitutional practice is and should be then we should always insist on its observance.
In what follows I therefore want to address the character of the constitutional conventions which appear to me to apply in this instance, that is to say, what is regarded as appropriate behaviour by a Canadian government in the period following the dissolution of parliament and leading up to the conclusion of the ensuing general election
Convention and the Constitution
It is important to start by reminding ourselves of the distinction between questions of law and questions of convention, custom, and our usual practice. In discussing the decision-making process with respect to the Pearson Airport Agreements I am concerned only with the latter.
I am therefore not going to refer to anything which is written in our various constitutional documents but only to certain unwritten customs and conventions which we have observed over the years and which come to us as a consequence of having inherited a parliamentary system of government from Great Britain. The distinction is of enormous importance, if only because so much of what is fundamentally significant to the successful operation of a parliamentary system of government is based on custom and convention.
If one were to believe what is written in the Constitution Act one would have to conclude that the Governor General has absolute power. There is no mention of the Prime Minister (except in the most minor way since the 1982 amendments) nor of the Cabinet. Perhaps the most fundamental principle of all--that a government which has lost the confidence of the House of Commons must resign or seek a dissolution--is not written down anywhere. The rules, if they may be given that title, which are involved in a decision by the Governor General to grant dissolution (or not to grant it) remain unclear to this day, despite the conviction of some scholars that they were settled in 1926. …