Letter to Canada's Governor General Re: Constitutionality of Senate Appointments

December 16, 2008

Her Excellency the Right Honourable Michaëlle Jean C.C., C.M.M., C.O.M., C.D.
Governor General of Canada
Rideau Hall
1 Sussex Drive
Ottawa, Ontario
K1A 0A1

Excellency:

It was reported today that Mr. Jack Layton, the leader of the New Democratic Party (“NDP”) has provided you with a copy of his letter of even date to Prime Minister Stephen Harper. It would appear that he has done so in the hope that you will refuse to appoint any Senators until after the House of Commons has, by means of a vote in the new year, expressed its confidence in the government. Mr. Layton was today quoted as having said:

[Prime Minister Harper] ducked the test, the fundamental test of his legitimacy to make these recommendations through a prorogation (of Parliament) and he’s now pretending that he has the full legitimacy to move forward. This is an abuse of his power.

Reportedly, Mr. Layton asserts that a letter allegedly signed by a majority of Members of Parliament (“MPs”), demonstrates that the government has lost the confidence of the House.

Excellency, I am writing to submit to you that Mr. Layton’s submissions are incorrect as a matter of both fact and law, and to express my concern that, were you to refuse the appointment of Senators on the ground that the government lacks the confidence of the house; or were you to refuse on the ground that the government must first demonstrate, through vote, that it has the confidence of the House; a precedent would be set that could undermine our system of Responsible Government for years to come.

Excellency, the facts are these. The most recent confidence vote was held on November 27, 2008: the speech from the throne. That vote was held not before, but after, the reading of the government’s economic update. The majority of MPs, including Liberal MPs, voted in favour of the speech. There was no expression, by MPs, of a lack of confidence in the government. There has been no vote on a matter of confidence since that time.

Excellency, as you will recall, Parliament was prorogued on December 4, 2008 at the request of the Prime Minister. Therefore, were you now to refuse to appoint Senators on the ground that the government lacks the confidence of the House, or on the ground that the government must be presumed to lack the confidence of the House until after the next confidence vote, said refusal would imply that you prorogued Parliament upon the request of a Prime Minister whose government lacked, or was presumed to lack, the confidence of the House.

Were it asserted that the Governor General has the constitutional authority to prorogue upon the request of a Prime Minister whose government lacks, or is presumed to lack, the confidence of the House, the ironic but logical implication would be that the Governor General also has the constitutional authority to appoint Senators upon the advice of a Prime Minister whose government lacks, or is presumed to lack, the confidence of the House. In other words, the logical implication of the decision to prorogue is the opposite of that asserted by Mr. Layton: prorogation upon the request of the Prime Minister actually favours the argument for appointing Senators upon the advice of the Prime Minister even prior to the next confidence vote. Notwithstanding what I say above in this paragraph, I submit that it would be constitutionally incorrect to assert that the Governor General has constitutional authority to prorogue or appoint Senators upon the request or advice of a Prime Minister whose government lacks the confidence of the House.

Excellency, unlike almost all other decisions made by the Governor General, the appointment of a Prime Minister following an election is made without ministerial advice, largely on the basis of the will of the governed, expressed through the electoral ballot. I submit that the appointment of an MP to the office of Prime Minister creates a presumption that the government has the confidence of the House. The governed elect Members of Parliament, not party leaders, and not Governors General. Recent history demonstrates that the vote of an opposition MP can differ from that of his own party and allow the government to survive a vote of confidence. For these reasons, our constitution confers only upon the individual Members of Parliament – not upon their respective political parties, and not upon the Governor General – the responsibility and duty of rebutting the presumption of confidence via a constitutionally-sound, formal vote in the House of Commons on a matter of confidence. If our system of Responsible Government is to keep its integrity, no other mechanism (e.g., an extra-Parliamentary letter allegedly signed by a majority of MPs, or an “Accord” signed by some opposition party leaders) can ever be permitted to constitute a rebuttal of the presumption that the government has the confidence of the House.

Nor can there ever be – for any reason – a presumption that the government lacks the confidence of the House. Such a presumption is illogical on its face because, by definition, a group of MPs who lack the confidence of the House is not a government of Canada.

Excellency, for the reasons stated above, I respectfully request that, should the Prime Minister advise you to make appointments to the Senate before the next confidence vote in the House, you act upon the presumption that the government has the confidence of the House, and make the appointments.

Sincerely,

Paul McKeever
Leader, Freedom Party of Canada

c.c., Prime Minister Stephen Harper, Mr. Michael Ignatieff, Mr. Jack Layton, Mr. Gilles Duceppe