At the time this article was
written Andrew Heard was Assistant Professor of Political Science at Simon
Fraser University . On December 8, 1994 he appeared before the Senate Standing
Committee on Legal and Constitutional Affairs which was considering Bill C-22
and on September 25, 1995 he appeared on a panel before the Special Committee
on the Pearson Airport Agreements
Parliamentary government is
based on a number of important but unwritten constitutional conventions often
overlooked both in public debate as well as in academic circles. In the October
1993 general election, the Conservative Government was defeated. Shortly
thereafter, a question was raised by the new Liberal Government as to whether
the previous administration violated any constitutional convention by signing,
just three weeks before the election, an agreement to turn over Terminals 1 and
2 of the Lester B. Pearson International Airport to the private sector. This
article provides one view about the general nature of constitutional conventions
and discusses the kinds of constraint that face a government in its last days.
Another perspective on this issue will be published in the winter issue of the
Constitutional conventions are a
very important set of informal rules which regulate political behaviour. They
are laws which essentially ensure that legal powers work in some fashion other
than the way the letter of the law requires or stipulates. They arise
principally through political practice but rely essentially on a level of general
agreement upon them. This is the fundamental characteristic of constitutional
conventions. They are informal rules, but their obligatory character arises
from the degree of agreement in the general political community on those rules.
Some conventions are very
important. They shape the character of our Constitution. The very basis of
responsible government comes from convention. The transfer of the vast legal
powers of the Governor General to the elected politicians of the day is
achieved by convention and convention only. It is important that we understand
that these rules have a fundamental role to play in the political system. We
must be careful in what we describe as conventions because they have such an
important role to play.
As an example of how important
conventions can be, even though the Constitution Act of 1867 stipulates that
the Governor General shall send copies of every law passed in Canada to the
British government, a constitutional convention now nullifies that obligation.
We have an obligation in the supreme law of the Constitution which is nullified
by convention. That is an idea of the strength of these political rules.
The Traditional Approach
The traditional method of viewing
constitutional conventions is one which is based on historical precedent. This
approach was most explicitly formulated by Sir Ivor Jennings, a British
constitutional writer. However, his views were adopted by the Supreme Court of
Canada in the Patriation Reference Case when they endorsed the three-step test
for conventions posed by Jennings. Sir Ivor Jennings said that when we look to
see whether a convention exists, there are three questions we must try to
answer: "First, what are the precedents; secondly, did the actors in the
precedents believe they were bound by a rule; thirdly, is there a reason for
These are three steps which place
precedence at the top of the line. Was there a precedent? Did the actors in
those precedents believe themselves to be bound by a rule? Is there a reason we
can root in constitutional principle that would support this rule as a
Precedents are the absolute
foundation of this approach. The late Senator Eugene Forsey embraced Jennings'
approach and underlined the necessity of precedent. He wrote: "A
constitutional convention without a single precedent to support it is a house
without any foundation ... indisputably, at least one precedent is essential.
If there is no precedent, there is no convention."2
If there is no precedent, there is
no convention. This was Forsey's reformulation of the traditional view of
Using this approach to look at the
matters surrounding the signing of the contracts with the Pearson Airport, we
need to search for a relevant precedent. This is the key to establishing
whether there was a convention regulating the behaviour.
I have searched widely in both
Canadian and British authorities without finding any direct precedents about
the issue of signing or not signing contracts during an election campaign. Nor
did I did find any cases where discussions about contracts during campaigns
gave rise to normative observations about specific constraints on a government
of such a nature as to point to a constitutional convention.
The precedents which have been
discussed by the authorities relate to limitations on governments after an
election. This is a difficulty. The authorities discuss the behaviour of
governments after an election, not during the election. They are concerned with
occasions when the results of the election make it clear that the governing
party has been defeated, and another party will be called upon to form a
government. The key to these precedents is the defeat of the cabinet in the
election and the impending appointment of a new cabinet.
The following examples review some
of these precedents: Modern authorities point to and look with approval at
instances where either a Governor General or Lieutenant Governor has refused to
make appointments devised by cabinet after it has been defeated in a general
The notable federal precedent
occurred in 1896 when Lord Aberdeen refused to make some appointments to the
bench and to the Senate after Sir Charles Tupper was clearly defeated in a
general election of that day.
There are also a number of
provincial precedents where the Lieutenant Governor has refused the advice of
the cabinet after its defeat in a general election. Twice in Nova Scotia, in
1878 and 1882, the Lieutenant Governor refused to make appointments; in New
Brunswick in 1908, and Quebec in 1886 as well.
In all these cases, the Governors
believed that cabinet should not try to make to the appointments. In the
Aberdeen - Tupper incident, Lord Aberdeen had to make a report to the British
government on his actions, and this was supported at the time by the Colonial
There is one contrary incident in
1905 when the Ontario government was defeated in the general election and
succeeded in having some appointments made. There was apparently a great outcry
at the time and the authorities look at those negative reactions as an
indication that this behaviour was contrary to a constitutional convention.
In my view, these precedents all
reinforce a general principle of a responsible government, this being the reason
for the convention. A cabinet has the right to have its advice acted upon, so
long as it has not been defeated at the polls or in a clear vote of confidence.
If a cabinet loses the confidence
of the House of Commons or the electorate, it must limit itself to conducting
routine business. Using the traditional approach to conventions based on
precedents, I must conclude that a government defeated at the polls must limit
itself to routine affairs.
In summary, the traditional
approach relies heavily on historical precedent for establishing constitutional
convention, and since I was not able to find precedents about whether a
government could sign important contracts during the election campaign, we must
conclude, in the absence of precedents, that there is no convention.
To say that there is no convention
that limits a government during the campaign period, however, is not to say
that there are no constraints whatsoever on a government's behaviour.
I would suggest that the limits on
a government's behaviour during an election campaign are ones of prudence, of
good politics, not of constitutional convention.
Constitutional Principles as a
Guide to Conventions
Historical precedents are useful,
but they are not completely determinative in my view. They provide a helpful
window to view the public debate over constitutional principles and rules. But
should we be bound by precedents that come from the 19th century, when so many
of our values have changed since then? What happens if there is a precedent and
most people would argue it was a case of someone getting away with it? Do we
say that the action created a new convention or it illustrated an instance of
someone acting against the rule?
If we look back through history and
find no evidence of the action, does that mean that no one thought of doing it,
or that they were in fact following a rule? The particular problem comes in
suggested conventions which relate to refraining from an action. The rule
imposes an obligation not to do something. It is too unclear and too
unsatisfactory in my view. I do not believe political actors should be free to
do as they wish — and declare, "Well there is not convention because there
is no precedent, so we can do as we please."
Since I am unsatisfied with the
traditional approach which relies so heavily on historical precedent, I have
developed another approach which is based more on constitutional principles
than historical precedent.
The distinguishing feature of
conventions, and one that separates them from mere habits and usages, is that
conventions support important principles of the Constitution. The very nature
and importance of conventions is that they are informal rules brought about to
realize a generally agreed upon principle of the constitution. To refer back to
Jennings, the reason for the rule is the principle which is involved.
In the absence of precedents, we
can and do in practice turn to basic constitutional principles which bind our
In looking at the signing of the
Pearson Airport contracts during an election campaign, I would want to examine
what constitutional principles may be involved. The most fundamental group of
principles directly related are those which support responsible government.
The legal authority of the Governor
General is exercised in practice on the binding advice of a cabinet who can
command a majority of seats in the House of Commons. This is the essence of
responsible government. The cabinet has the authority to advise the Governor
General because it is able to command a majority in the House of Commons.
If the cabinet loses the confidence
of the House of Commons, it must either resign or advise that an election must
be held. Until it wins back the confidence of the electorate, that cabinet can
only carry out limited decisions. This limitation arises because it lost the
confidence of the House of Commons. If a cabinet is defeated on a clear vote of
confidence in the House of Commons, it is limited in what it can do until it
wins back the confidence in a general election.
In another situation, if a cabinet
clearly loses a general election, it, too, has lost its authority to advise the
Governor General, and it must offer its resignation and limit itself until a
successor is appointed.
In the case of the Pearson Airport
contracts there was a cabinet formed by a new Prime Minister, Kim Campbell who
had not met the House since her appointment. However, since she led a party
with a majority in the House, there is no doubt in anyone's mind that she would
have won any vote of confidence she faced.
Prime Ministers and premiers are
frequently appointed to office and replaced between elections by party
leadership conventions. When they become premier or prime minister, they simply
carry on. This is the situation we faced in 1993 when Ms Campbell won the
leadership convention of the Conservative Party and replaced Brian Mulroney as
Prime Minister. I have not heard any discussion on past leadership changes that
suggested a new premier or new prime minister is somehow limited until he or
she meets the legislature or wins a vote of confidence.
There is one instance in which a
related concern was raised, and that came with the spate of appointments which
accompanied John Turner's succession to office in 1984. There was considerable
debate, some of it heated, at the time, because of a number of appointments
which Pierre Trudeau made prior to resigning, and because John Turner continued
to make some appointments thereafter. The argument raised at the time was that
the government was in its so-called dying days and should constrain itself.
Such an argument, I believe, was
unfounded since that Parliament had a year to go before an election had to be
called. Many people did not like that large grouping of patronage appointments,
but that is a question of public policy and not constitutional convention.
I would argue that constitutional
principles support the right of the government to advise the Governor General
on any matter it wishes until such time as it loses the confidence of the House
or it loses a general election. If I am mistaken in that conclusion and there
are some limitations upon a government during an election period, we should
consider what sort of limitations there might be.
For me, the clue lies in comments
made by Peter Hogg in reviewing the Aberdeen - Tupper incident of 1896. He
wrote: "The Governor General had a discretion to refuse to concur in an
important and irrevocable decision which could await the early and inevitable
formation of a new government."3
The key phrase here is
"important and irrevocable", and I believe it conveys a very sensible
distinction. What a government is restrained from doing after it is defeated in
an election is making important, irrevocable decisions which cannot be undone
by the new government.
Thus if there is a limitation on a
government during a campaign period, it could not be anything more than that
limitation. Defeated governments cannot make irrevocable decisions. They may
make decisions which a new government can undo. If one concedes, for the sake
of argument, that a cabinet must avoid implementing important decisions during
a campaign period, then I would suggest that the sorts of decisions they are
prohibited from making are ones that are important and irrevocable. However,
the Pearson contracts are not irrevocable. They may be undone. We can debate
the means chosen to undo those contracts, but the successor government and
Parliament clearly have the power to undo them.
1. Sir Ivor Jennings, The Law &
the Constitution, 5th ed., (London: University of London Press, 1959), p. 136.
2. Eugene Forsey, "The Courts
& the Conventions of the Constitution," (1984) 33 UNB Law Journal, p.
3. Peter W. Hogg, Constitutional
Law of Canada, 3rd ed., (Toronto: Carswell, 1993), p. 253.