I'm almost done. I'm sorry, I'm a long-winded guy.
I wanted to apply that Supreme Court methodology to the issue before us: conventions concerning prorogation.
First, there are plenty of precedents of uncontested requests for prorogation, but to the best of my knowledge there have been no situations analogous to either 2008 or 2009, both situations where prorogation was contested because its purpose appeared to be to avoid the government's accountability to Parliament. Nor was there any indication in those uncontested precedents that the actors in the precedents--that is, the government and opposition political leaders--believed they were bound by a rule that it is legitimate for the government to advise prorogation at any time, for any length of time, and for any reason whatsoever.
If such a rule were to be put forward, it is difficult to think of the reason that might be given for such a rule other than that in a democracy the Prime Minister should always get his way. But I comment that while such a reason might be considered appropriate in a democracy in which the head of government, the Prime Minister, is directly elected by the people--that might be all right--it is not appropriate in a parliamentary democracy where the Prime Minister depends for his licence to govern on the confidence of and accountability to Parliament.
So I would have to conclude that we do not have a constitutional convention governing contested requests for prorogation.
The next page has a couple of suggestions on where you might go.
The first is to realize that constitutional conventions do not always arise gradually, historically, through precedents. They can come from an agreement made by the relevant political actors on a grave matter of great importance, a disputed matter. I give the example of the Balfour Declaration in 1926, that in effect changed the British Empire into the British Commonwealth of Nations, and an agreement on the equal status of the United Kingdom, Australia, Canada, Eire, New Zealand, and South Africa. That was done through a conference, a meeting of prime ministers. They issued a declaration that they all agreed to. It was fundamental in changing the constitutional status of these countries.
In paragraph 11, I deal with the one motion we've had during this contested period, the one indication of a possible basis for a convention. As you all know, on March 17 of this year, the House of Commons passed a motion that was moved by the Honourable Jack Layton requiring that the Prime Minister seek the consent of the House of Commons before advising of a prorogation of more than seven days.
This motion cannot, in my view, be regarded as a constitutional convention, because it was opposed by the Prime Minister and members of the government caucus. The Prime Minister in particular is one of the key actors involved in prorogation, and he would not feel bound by the Layton motion. But that motion, I suggest--always hopeful--could be an important step towards establishing a constitutional convention, if it becomes the basis for discussing, in this committee or a special committee struck for the purpose, the possibility of an agreement on conditions that should apply to prime ministerial advice to prorogue.
So far we have not really heard what conditions, if any, the Conservatives think should apply to the rendering of such advice. Hearing the government's case would be a very valuable thing for Canada.
If the parties did agree on rules that should govern prime ministerial advice to the Governor General to prorogue, in my view such an agreement would be a constitutional convention. You would have created a constitutional convention, and as such it would not be legally binding. Constitutional conventions, as our Supreme Court has said, will not be enforced by the court, but they could be identified by the court. They can settle arguments about them, but they won't enforce them. Such a convention would have great political force and it would in all likelihood be complied with by the Governor General.
Finally, I've heard, as one does reading the papers and Hansard, of a possibility of the Standing Orders of the House being changed, possibly along the lines of something like the Layton motion, through a majority vote in the House but with the Conservatives, the government caucus members, still opposing the motion. What about that?
Well, of course my view is it's not a constitutional convention, but such an addition to the Standing Orders would surely be as binding on the Prime Minister as all other standing orders are. Failure of a Prime Minister to observe this new standing order, if one were added to the Standing Orders, could result in a ruling or a finding of contempt of Parliament and a possible defeat of the government on a non-confidence motion.
According to constitutional convention, a Governor General would be entitled to dismiss a Prime Minister who refused to resign or ask for a dissolution--I should have added that--after losing a vote of no confidence in the House.
I've put my own view in the final paragraph, and I thank you for the time to get here.
I believe it would be best for Canada to have the rules governing prime ministerial requests for prorogation settled in a consensual manner by our elected political leaders. Closing down Parliament, the people's house, the democratic institution of this country, is not a routine event. It's an act of great importance to parliamentary democracy in Canada. Canadians will be ill-served by their elected representatives if they're unable to reach an agreement on this matter and leave the country vulnerable to another grave political constitutional crisis with no rule in place to govern the crisis.