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Law Times • January 25, 2010 S McGuinty hoping for better cards to play Inside huffling the deck in pok- er usually signifies a fresh start and a chance for luck to change. In politics, it's usually about damage control. Last week's Queen's Park cabinet shuffle was long ex- pected and, some would say, overdue given the resignations of high-profile front-benchers like George Smitherman, now the front-runner for the Toronto mayoralty race, and Jim Watson, who is running for municipal politics in Ottawa again. Add in the resignation of David Caplan as minister of health and it's clear events forced Premier Dalton McGuinty's hand. With senior MPPs like Greg Sorbara and Gerry Phillips mak- ing it clear they didn't want the pressure of a front-line cabi- net post, McGuinty resorted to bringing some fresh faces into the mix while adding responsi- bility to those established mem- bers of his executive council. To that end, Attorney Gen- eral Chris Bentley will add ab- original affairs to his portfolio, an interesting move given the unresolved tensions in Cale- donia, Ont.; a pending class action lawsuit over that issue; the proceedings against OPP Commissioner Julian Fantino; and the brewing threat from First Nations over the imposi- tion of the harmonized sales tax that will end the deal ab- originals had to avoid paying the provincial sales tax by pull- ing out their status cards. The unrest isn't because they will pay the tax with the con- vergence of the PST and GST and not get it back; it's over the fact they'll have to wait for the government to process a refund. Under the existing rules, the government waives the PST at the point-of-sale while aborigi- nals pay the GST and later get a refund if the goods are shipped to an on-reserve address. The move is also notable in that a stand-alone ministry focused on aboriginals was a major recommendation of the Ipperwash inquiry into the fa- tal shooting of Dudley George during the Mike Harris regime. Having such an entity was once a selling point for the McGuinty government but not so today. Still, could this be the creation of a one-stop shop to get some of the outstanding native issues resolved with a carrot-and-stick approach? This leaves former aboriginal affairs minister Brad Duguid free to accept the hot potato in the form of the energy and infra- structure portfolio in which he'll have to stickhandle the awk- ward sustainable-energy strategy dumped on him by Smitherman, his predecessor. The government is currently determining how Ontario will get its electricity over the next 50 years, and while the poster child for sustainable energy was hydro, there's nothing much left in the province to be developed. By Ian Harvey So wind, and to some extent solar, have become the next big thing. As a result, Duguid now has to manage the fallout from the massive deal arranged by Smi- therman with the Samsung Group to give it preferred access to developing wind energy in Ontario. He'll also deal with the other not-so-hidden issue of energy prices as a growing number of voices argue Ontario consumers pay too little for their power and urge increases as an incentive to conserve. Aside from sparking a consumer backlash, Ontario's large industrial users aren't going to be happy with such a move ei- ther. To maintain the industries that drive jobs, there's going to have to be some flexibility. Unchanged in cabinet are half of the old-guard hands like Dwight Duncan, who keeps his role as finance minister, while Deb Matthews stays in her re- cently inherited role as minister of health. Only a handful of new faces appear while three ministers have been given the boot. The number of women, meanwhile, increases slightly to 11 from 10. Gone are former natural re- sources minister Donna Cans- field, culture minister Aileen Carroll, and consumer services minister Ted McMeekin. Newly anointed from the backbenches are Sophia Aggelonitis to con- sumer services; Eric Hoskins to citizenship and immigration; Linda Jeffrey to natural resourc- es; and Carol Mitchell to agri- culture. Former education minis- ter Kathleen Wynne takes on transportation, while hidden in the deck is the appointment of Michael Chan to tourism and culture from citizenship and im- migration. It's not a high-profile posting, but speculation is that Chan is being groomed for big- ger things. In the interim, he will lead efforts to cultivate support for the Liberals in the Chinese community, something that's vi- tal for their re-election chances. That's just some of the strat- egy behind this shuffle of the deck. But with a litany of bad news over the deficit and the HST to manage over the next year, McGuinty is already look- ing forward to 2011 and the next provincial election. In the meantime, he is with- out a doubt praying for the right cards to fall into place. LT Ian Harvey has been a journal- ist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. COMMENT PAGE 7 Prorogation an issue of law, not just a technicality Queen's Park BY MARK WALTERS For Law Times "A s Canadian university professors dedicated to educating students about democratic institutions, we are deeply concerned by Prime Minister Stephen Harper's decision to use his power to prorogue Parliament for a second year in a row in circumstances that allow him to evade democratic accountability." So begins an open letter written by Daniel Weinstock, a philosophy professor at the Univer- sity of Montreal, that was published in several newspapers on Jan. 11. The letter was signed by more than 200 uni- versity professors from a variety of academic disciplines, including political science, his- tory, education, sociology, anthropology, and, of course, law. I was one of a number of law professors who signed this letter. Why, it might be asked, would law professors join this co-ordinated academic attack on the prime minister's prorogation decision? I can only speak for myself but I signed the letter because I agreed with Weinstock's conclusion that the move to shut down Par- liament until March was a "nakedly partisan" manoeuvre that permits the government to avoid accounting for its handling of allega- tions concerning human rights abuses in Af- ghanistan. Although I believe that academics shouldn't use their privileged positions to engage in partisan politics, I concluded that the position the letter advances in defend- ing democratic values wasn't just a viewpoint academics may express publicly but one that we have a certain duty to speak about. While the letter engages in political discourse, the issue is one of political morality, not of po- litical power. These are reasons why any university pro- fessor concerned about democratic gover- nance might have signed the letter. Are there reasons above and beyond defending the po- litical value of democracy that would prompt a law professor to sign it? The question is a valid one. After all, in his letter Weinstock acknowledges the general consensus among observers that Harper did nothing "techni- cally wrong" when he requested an order proroguing Parliament. By constitutional convention, the authority to advise the gov- ernor general in the exercise of prerogative powers relating to such matters does indeed lie with the prime minister. If Harper did nothing technically — or, by extension, le- gally — wrong, then it may be thought that law professors have nothing further to add to the debate. The issue is one of political morality and democratic legitimacy, not of law or legality. I think this position is deeply mistaken. "In our constitutional tradition," to quote the Supreme Court of Canada from its opin- ion in the Quebec secession reference, "le- gality and legitimacy are linked." It was in that opinion that the court affirmed that the principle of democracy is not just central to our political culture but is also one of the un- written foundational principles of law upon which our written Constitution is construct- ed. Indeed, the court went so far as to say that in certain circumstances, these unwrit- ten constitutional principles might have full legal force binding upon governments. In our legal tradition, questions of legality and political morality are intimately connected, www.lawtimesnews.com Speaker's Corner and when a prime minister does anything that is arguably undemocratic, he or she has done something that is arguably unlawful. Of course, it doesn't follow that every undemocratic act by a prime minister is open to challenge in the courts. The rules that govern the exercise by the governor general of those key prerogative powers re- garding who will form the government and when Parliament will sit have long been as- sumed to form part of a body of custom- ary norms that A.V. Dicey famously called "constitutional con- ventions." Of course, Dicey insisted, and our Supreme agreed, Court that has conven- tions are not judicially enforceable. The gist of these conventions is that deci- sions about governance made by the Crown pursuant to the royal prerogative may only be made upon the advice of ministers of the Crown who enjoy the confidence of the elected members of Parliament. In other words, the Crown's powers are controlled by ministers who are, in turn, controlled by the people. Harper had the confidence of the House of Commons when he advised the governor general to prorogue Parliament, and so, it is said, the relevant constitutional rules were technically satisfied. Nevertheless, the legal concerns raised by the prorogation of Parliament, like the legal concerns raised by any hard case, don't stop at the level of technicality. The episode gives rise to complex questions about Canadian constitutionalism in response to which, in my view, members of the legal community generally and legal academics in particular have much to offer by way of analysis. First, while the historical focus of scholars who examine conventions has been on the ways in which they ensure that kings and queens obey prime ministers, the other links in the chain of normative reasoning offered by Dicey, in particular the links between the prime minister, the supremacy of the House of Commons, and in turn the sovereignty of the people, can't be forgotten. These links are integral to the normative coherence of the convention as a constitutional rule. There is good reason to think that a prime minister who uses the convention to under- mine rather than uphold the supremacy of elected members of Parliament has violated the convention. Second, it's time to acknowledge that the bright line Dicey drew between law and con- vention doesn't exist in Canada. The unwrit- ten principle of democracy that underlies the conventions about how Crowns and prime ministers ought to behave is, within the Ca- nadian constitutional context, a fundamen- tal principle of law. Conventions may not be judicially enforceable but they are constitu- tional rules that must be seen as susceptible to legal analysis and legal argument. The alterna- tive is unthinkable. We would have a lawless hole at the very heart of our constitutional order. Did Harper's decision to request pro- rogation of Parliament violate unwritten prin- ciples of Canadian constitutional law? That is, I think, a fair question and one about which law professors, among others, should have some- thing to say. LT Mark Walters is a professor and associate dean at the Queen's University Faculty of Law. His research focuses on constitutional law, legal history, and aboriginal rights.