Fail: Unconstitutional Transfer Power Attempt

Commentary, COVID-19, Government, Marco Navarro-Genie

The federal government’s effort to transfer power temporarily from the House of Commons to the office of the Finance Minister was an unconstitutional attempt to bypass the will of Canadians as expressed in the 2019 election. By stopping them, the opposition parties have done great service to the country.

The effort is puzzling because no such move is contemplated in the Emergencies Act. The Act was designed to transfer for renewable periods of 90 days enormous ability to the federal sphere, including powers from exclusive provincial jurisdictions. But no previous Parliament considering emergencies had contemplated what the Prime Minister wanted: to relieve the House of Commons of its most significant feature.  

Why would the House of Commons delegate to the Finance Minister the most important power it holds for a period that is seven times longer than the time the Emergencies Act contemplates for the transferring of lesser powers? 

The 90-day requirement in the Act is a deliberate limitation on government power, placed in the understanding that power can be abused, and concentrated power can be abused the more.  

The time limitation is a safeguard this government wanted extended seven-fold. Let’s ask what about the present situation is so radically unusual to warrant the deviation? What is so different about this government that Canadians should trust them 7 times more than they have contemplated to trust previous governments with emergency powers in the past? 

The wish to augment its influence was not about taxes and spending. This was about a government wishing to remove constitutional restrictions and to free itself from limitations voters recently placed on it. 

To limit government power and to protect our individual liberties and property, our constitutional traditions place the power to spend and tax in the House of Commons. The lion’s share of the obligations to limit power and protect citizens falls on the shoulders of the House of Commons as a check on the executive power. 

Emanating from the same tradition, and going as far back as Magna Carta in 1215, governments may not appropriate the fruits of their citizen’s labour, of which taxing is one manifestation, without their consent. Such consent in our parliamentary democracy may only be granted by the House of Commons.  

Dispensing with the consent of the House without involving the robust debate of a full House is an equally enormous deviation from the tradition. 

Nor can that consent be delegated. In Eurig Estate (1998), the Supreme Court of Canada upheld the principle that taxation must originate in the House of Commons and cannot constitutionally be delegated to any one government officer or department.

The full consent of the House of Commons to tax and spend is so crucial a piece in our constitutional tradition that losing the confidence of the House may trigger the demise of a government. 

And here is the core of the matter. What the Liberal government wanted to do is not contemplated in the Emergencies Act because it is unconstitutional.  

We have a minority government, intending to shield itself from the cornerstone principle of responsible government by dispensing with the confidence of the House, circumventing the oversight of Parliament for 21 months.

But why?  Not many will believe that the Prime Minister stealthily intended to start paving a road for Canada to become a banana republic.

The move simply sought to take advantage of a crisis to gain self-serving political convenience. It would have insulated the minority government from all possibility of losing a vote on a money bill for the subsequent 21 months, turning a minority government into an invincible super minority.  

It would have entirely freed the Liberal government from the annoyance of opposition, allowing them to govern in minority without having to satisfy the House on financial matters, and without having to make the compromises that are typical of regular politics.  

The opposition parties deserve good credit here. Government without limitations is very rarely a good government. The lack of limitations always opens greater avenues for abusing power. And this government has already been repeatedly reluctant to follow rules and respect the law.

Last Fall, with scant representation from Western Canada, voters sent the federal Liberals back to Parliament to form a minority government, thus placing greater limitations on their power than before. This week, we saw an attempt to shake loose from the inconvenience of that electoral outcome. What we witnessed was a bold attempt at usurping popular power. 

Marco Navarro-Génie is president of the Haultain Research Institute and Senior Fellow with the Frontier Centre for Public Policy.