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Coalition? Tories? A Pox on All!

In crisis times, what childish games all parties are playing.

By Rafe Mair 1 Dec 2008 | TheTyee.ca

Rafe Mair writes a Monday column for The Tyee and is a spokesperson for the Save Our Rivers Society.

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Is it all about a power grab?

Wow! What larks! Could the scene in Ottawa happen anywhere else? We stand on the cusp of a political miracle which might see the rejected and dejected leader of the Liberal party about to become the prime minister of Canada.

The facts are not much in dispute. The Conservatives, a minority government, baited the opposition with a bill that would take away the public funds they get for election purposes. Yes, there it is folks. We may have an election where voters will be asked to support a coalition of Liberals, New Democrats and separatists because these three parties have had their taxpayer dollars for election expenses taken away.

Can't you see and hear voter indignation? Stand up to those wicked Tories who would take away from us good guys taxpayers lolly designed to help us get elected! I can hear the cry rolling across the nation… give the Liberals, BQ, NDP and Greens their publicly financed slush funds back! Now if that isn't an emotion-packed issue, I don't know what is.

I have to tell you up front. I don't like Stephen Harper or his government. The problem is, I don't like the others much either. But if I were asked to vote for a coalition put together by bringing in the Bloc Quebecois, I just couldn't do it. Politics and cynicism are synonyms but this would be too much. I have to think that Jack Layton and Stephan Dion have thought of this and realize that they would be forcing an election the public doesn't want over a trivial issue brought on because the Liberals and New Democrats are cynical enough, indeed unpatriotic enough, to bring the Bloc Quebecois into the government.

The scent of power, even momentary power, is very tempting. It does strange things to otherwise quite normal people. But I simply can't believe that Dion and Layton could be so dumb. If they are, no wonder the public gave Harper office instead of them.

Have we seen this before?

Now we have the constitutional lawyers prowling through dusty old manuscripts to see what happens if Harper is defeated in the House and pops across the way to Governor General Michaëlle Jean's digs asking for an election writ.

Her Excellency will have been well prepared with the precedent set in 1926 in what's known as the King/Byng affair, the only problem being no one can agree on what precedent was set.

In 1925, then Prime Minister Mackenzie King formed a minority Liberal government. In 1926, he was defeated on a confidence motion whereupon he went to Governor General Lord Byng and sought dissolution of Parliament and an election writ. Byng refused and called upon Tory leader Arthur Meighen to form a government, which he did. It lasted a week, Meighen lost a confidence motion and an election ensued which was fought by King on the basis that Lord Byng was wrong. King was returned with a majority.

Before going on, two important constitutional events took place after the King/Byng dustup that may well affect what interpretation one might infer from that crisis.

At the time of the crisis, the Governor-General was seen not only as the King's representative in Canada but also seen as representing Great Britain. In other words, the GG not only was the King's Canadian representative, he also represented the residual powers of the King as King of the United Kingdom.

The legal fine print

After the crisis and after King was returned with a majority, the U.K. government issued a declaration that the role of Governor General was as a representative of the sovereign in Canada only. Known as the Balfour Declaration, it acknowledged that the Dominions were equal in status to the United Kingdom, and that each Governor General would henceforth function solely as a representative of the Crown in their respective Dominions, and not as an agent of the British Government. Arcane, perhaps, but none the less important for that.

Next came the 1931 Statute of Westminster, which changed Canada from being a "self governing Dominion" to a full and equal member of the British Commonwealth of Nations, later simply the Commonwealth of Nations. Here's what section 2 (2) says:

"No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule, or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion."

Thus we had a king and he was also King of England but in Ottawa he was the King of Canada with his prerogatives limited by Canadian law and custom.

Judging from what I'm reading, modern, which is to say since I left law school in 1956, legal opinion seems to be that if the Tories lose a confidence vote, the Governor-General may refuse to give Mr. Harper his election writ and can ask Dion to try to form a government.

Ask and ye shall receive

I respectfully disagree. I believe that since 1926, the Balfour Declaration and the Statute of Westminster in 1931, combined with our Constitution, parliamentary custom is that if a prime minister seeks dissolution and an election writ, he shall have them. It is a matter of custom in the absence of specific constitutional fiat. The custom in the U.K. has certainly changed to where no monarch would dare refuse a prime minister his election and I believe that's the custom now in Canada, though I admit this is inferential not stated.

Now that's behind us, let me make what I believe should be the final verdict. In our House of Commons we have an enclave of childish adults who, rather than deal with the immediate and soon to be upon us even worse financial crisis, play with public affairs as if they were the students' council of a small high school (with apologies to students' councils across the land.)

A pox on all their houses!

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