Beyond The Commons

Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Gaming it out

by Aaron Wherry on Thursday, April 22, 2010 1:47pm - 79 Comments

Susan Delacourt wonders if the detainee document question currently being contemplated by the Speaker won’t ultimately end up with the Supreme Court.

[REDACTED] I wonder—without, mind you, having yet consulted anyone who knows about such things—whether the Supreme Court, in a scenario like the one I referred to a couple of weeks ago, might then pass it on to the Governor General. And then I wonder who the Governor General will be by then. And then I wonder whether we’d all be comfortable with Wayne Gretzky making that decision. [REDACTED]

After thinking about what I wrote here for a bit—Parliament refers the matter to the Supreme Court, Supreme Court refers it to the Governor General, that Governor General is Wayne Gretzky, the whole matter is settled in a shootout—I’m less convinced of my own fanciful theorizing. Apologies. I’ve referred the matter to a more learned mind.

In the meantime, you can review the Supreme Court’s decision in New Brunswick Broadcasting Co. v. Nova Scotia. Neil Morrison has already noted the irony as it applies to this particular predicament.

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  • http://intensedebate.com/people/Open_Democracy Open_Democracy

    Canadians are living in a benevolent dictatorship. Get used to it.

    http://viableopposition.blogspot.com/

  • Mike T.

    I seem to recall the idea was that the matter couldn't be appealed and would rest with the speaker alone, but I cannot recall the source of the idea.

  • Anon 001

    Once the Speaker makes a ruling, the House can move a contempt motion. Once the House finds a government in contempt, I'm not sure how that's not then automatically a vote of no-confidence.

    • http://intensedebate.com/people/LynnTO LynnTO

      A finding of contempt against individuals would have no teeth against the government as a whole, though it would look pretty bad.

      A guilty finding would put the members convicted in parliamentary jail for …well, until the next prorogation, (see point 23) which based on recent history, means this coming December.

      • Anon 001

        I'm not sure how a contempt motion against one or more members of the Cabinet is not automatically a vote of no-confidence in the Cabinet and, therefore, the entire government. I mean, I'm not sure how a government can keep governing if one or more of its Cabinet members are being openly humiliated in the House.

  • http://intensedebate.com/people/Thwim Thwim

    I tend to disagree.. I'm not certain about its benevolence.

    • http://intensedebate.com/people/Open_Democracy Open_Democracy

      Sorry if I mistyped. My fingers must have slipped that extra word in without my prior approval.

      http://viableopposition.blogspot.com/

      • http://intensedebate.com/people/CTM Claudia Lemire

        Just read your blog, it is official, I am a fan!!!

  • http://intensedebate.com/people/Be_rad Be_rad

    The supreme court will not accept such a question. From the online texts from the House of Commons itself, questions of privilege, by their very nature, belong to the House. If the opposition allowed such a maneuver, it would require a weakness so manifest that they would likely have already backpedalled to such a degree that the referral would be moot.

  • MacLean's Regular

    Yeah, and I *wonder* if I remembered to put on underwear this morning.

    • http://intensedebate.com/people/LynnTO LynnTO

      Semper ubi sub "ubi".

  • http://intensedebate.com/people/Douglass Douglass

    Wow that's a crazy circle there Aaron. I sure hope our fate parliamentary system isn't left in the hands of (any) GG so newly appointed.

    • Mike T.

      Your point is well taken but seeing as we've only had two major incidents in the past 70 years or so and they've been far out of the ordinary course of business, it doesn't seem like time on the job really matters. YOu can probably live a lifetime building the appropriate knowledge, but actual time holding the title wouldn't mean that much.

  • Mike T.

    Isn't the only automatic non-confidence vote a supply bill?

    • wilson

      That is 100% the Prime Minister's call.
      The govt can designate the killing of the gun registry a confidence vote, is PMSH so desires.

      Remember when the House voted no confidence in his govt, and Martin declared it NOT a vote of confidence….

      • Dave

        No, I don't actually remember that. Can you point out where in Hansard this vote took place?

  • tobyornottoby

    Why is everyone looking for a way to let the Speaker off the hook? What's he (and hsi retinue of clerks and legal advisors) for if he can't rule on a fundamental issue about the nature of parliament? Time to step up or step down.

  • Anon

    We don't live in a "separation of powers" system like the US, and I've always had the sense that in Canada, Parliamentary supremacy ultimately supersedes that of the Supreme Court. Am I off base?

  • Emily

    Scary thought.

    Well the GG has refused to do her job twice now, so it wouldn't surprise me if the Speaker did as well. Our country seems to be in wimp mode lately.

    I'm amazed this is even a question though.. 'Parliament reigns supreme' has been settled for centuries.

    • FVerhoeven

      So, if the GG does not rule according to your standard of reasoning, she is wrong? Emily, Emily, where to begin trying to expain thing to you, specially this "thing" we call reasoning.

      • http://intensedebate.com/people/CTM Claudia Lemire

        Thank you, FVerhoeven. I don't think she get's it. No offense Emily, but this is your point of view and is just not fair to accuse the GG of not doing her job, she did, you just don't happen to agree with it!

  • http://intensedebate.com/people/WDM WDM

    What was her job, and what would have been the Constitutional reasons for refusing either request for prorogation?

  • http://intensedebate.com/people/LynnTO LynnTO

    Sounds to me like someone's had their nose in an advance copy of the Speaker's ruling.

    • http://intensedebate.com/people/CTM Claudia Lemire

      I have a feeling he is going to go with Government too!!

  • http://intensedebate.com/people/john_g2708 john g

    Aaron, what on earth are you talking about? There is no precedent for the Supreme Court ever punting anything to the governor general, and the article you link makes no mention of the Supreme Court.

    I agree with you that the GG is and should be more than a figurehead but the example you made up above is just crazy talk.

    • commentator

      Exactly. The idea is ludicrous. GGs lay cornerstones and tour Central Africa, not make decisions (except vy rarely). Nor should they.

    • http://intensedebate.com/people/CTM Claudia Lemire

      Of course is crazy talk, William Shatner is the right choice haven't you voted on Facebook yet? You know, Facebook that networking website is all the rage right now, you should try it! : D

  • Emily

    We've been thruough this before, and you are well aware of the answers.

  • Matlock

    From my understanding, the motion is not one of contempt against the government in general, it's contempt specifically against Peter MacKay, Rob Nicholson, and Lawrence Cannon.

    A contempt motion certainly could be perceived as "no confidence" in these individuals; to what extent that should mean "no confidence" in the government in general is probably open to interpretation.

    • Ted

      Precisely.

  • http://intensedebate.com/people/Crit_Reasoning Crit_Reasoning

    Don't keep us in suspense. Did you or didn't you?

    • Ted

      No. *Please* leave us in suspense.

  • http://intensedebate.com/people/Be_rad Be_rad

    Good question. Here is an excerpt from their own book:
    "A complaint on a matter of privilege must satisfy two conditions before it can be accorded precedence over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of breach of privilege has been made and, second, the matter must be raised at the earliest opportunity. If the Speaker feels that these two conditions have been met, the Speaker informs the House that, in his or her opinion, this matter is entitled to take precedence over the notices of motions and Orders of the Day standing on the Order Paper. The Speaker’s ruling does not extend to deciding whether a breach of privilege has in fact been committed. This is a matter which can only be decided by the House itself."

    All he appears to be asked to do is to say if it looks like the issue involves the privileges of the House, not to make a final judgement.

    • Ted

      Precisely.

      And by "decided by the House itself" what it means is it goes to committee and then either dies or a motion comes forward from committee to be voted on the by the House.

  • http://intensedebate.com/people/Be_rad Be_rad

    If you Google parliamentary supremacy I think it says you only have that specific system if you don't have a court or other body that can override your laws. We certainly have that here. The SC can declare a law unconstitutional for violating jurisdiction or the Charter, for example. It's a technical distinction for that specific phrase. However, our House of Commons is arguably supreme over the Government in that we have responsible government.

  • http://intensedebate.com/people/CTM Claudia Lemire

    No, please remind us!

  • wilson

    The SCoC has a mandate to do exactly that, settle disputes about privilege, and it has done so in the past, just not on this question.
    Our Constitution gave the courts exactly that power.

    • http://intensedebate.com/people/Be_rad Be_rad

      Try as I might, I can't find the supreme court in our constitution,much less its jurisdiction.

      From the links Aaron supplied and the House of Commons site, I think the courts accepted a modified role when asked and that the privileges are assessed on a limited basis. However, I would appreciate learning otherwise if you have any links to share.

  • Emily

    The GG has all the powers of the queen, being the queen's representative in Canada. She is 'standing in' for the Queen, legally. She can refuse to dissove Parliament under the reserve powers of the Lascelles Principles.

  • Mike T.

    That last thing never happened.

  • Ted

    When did the House vote no confidence and Martin ignored it, wilson.

    Please enlighten us because no one else seems to be aware of this unprecedented, and previously unknown, moment in Parliamentary history.

  • Ted

    Could both you and Be_rad provide any link to support your assertions, please.

    Wilson never does, so I'm hoping you can Be_rad.

    • http://intensedebate.com/people/Be_rad Be_rad

      Happily. Fromhttp://www2.parl.gc.ca/procedure-book-livre/Document.aspx?sbdid=ABBC077A-6DD8-4FBE-A29A-3F73554E63AA&sbpid=E5B86AEE-7D83-4E60-9584-85B89B32ADFA&Language=E&Mode=1 we learn that "Since parliamentary privileges are rooted in the Constitution, courts may determine the existence and scope of a claimed privilege. However, recognizing that a finding of the existence of a privilege provides immunity from judicial oversight, the courts may not look at the exercise of any privilege or at any matter that falls within privilege."

      So wilson as usual is partially right. Courts apparently can determine if a privilege exists. But if it does, it seems it has to back way off. The question then is if the House of Commons is allowed to hold the Government to account for disobeying its orders. I guess in my mind that seems like a no brainer.

      • http://intensedebate.com/people/CTM Claudia Lemire

        You gotta love Wilson!!

        • http://intensedebate.com/people/Be_rad Be_rad

          I read more of the text Ifound. Here's a corker:"The Speaker’s role ought to be explained, and it is that the issue put before the Speaker is not a finding of fact, it is simply whether on first impression the issue that is before the House warrants priority consideration over all other matters, all other orders of the day that are before the House"

          From the sounds of it, the Speaker's decision isn't even a substantive one. It just helps the House of Commons decide if the question has enough merit according to the rules to be considered seriously. It seems to be a very low test and very much to be a part of how the House of Commons runs itself. How the House of Commons runs itself is one of its key privileges, according to what you read here -http://www2.parl.gc.ca/procedure-book-livre/Document.aspx?sbdid=ABBC077A-6DD8-4FBE-A29A-3F73554E63AA&sbpid=00578540-4AC4-4004-BBD5-4F1110B9DD73&Language=E&Mode=1

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