By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Tuesday
Aug072018

Cognitive Bias and the Constitution

I have been continuing a slow-motion effort to learn more about cognitive biases, and trying to imagine how to integrate cognitive bias awareness training into how I teach law. (For a fascinating recent primer cognitive bias, see Ben Yagoda's recent article.) On a separate track, I have been watching the contestation of political differences spun-up in various jurisdictions as legal claims, especially of a constitutional sort. In truth, some governments do embark on constitutionally doubtful paths.

But there is another issue as well: non-mainstream views about the constitution attracting the support of partisans that, if deployed in the hands of the other partisans they oppose, would be characterized as a coup d'etat. The various proposals for "court packing" in the United States fall into this camp, as well as puzzling arguments circulating online suggesting that the Lieutenant Governor of Ontario may choose to refuse royal assent to a Ford government bill duly enacted in the legislature. (There was also a bit of this at the federal level in 2015's debate on bill C-51.)

A lot of this is the sort of debate you often see in Twitter Law School, and so it is hard to guage how seriously anyone takes this. But it might be useful, nevertheless, to spell out why it is wrong.

The argument about a Governor General or Lt Governor denying royal assent requires a reading of the Constitution Act, 1867, shorn of any consideration of "constitutional conventions". These conventions often get short shrift in the public mind, because they are not written down and, at least in theory, are not justiciable in court. For some, that seems to make them less real, the equivalent of discretionary normative principles rather than binding, positive norms. In fact, they are binding on the political branches of government, and in further fact, they are the norms that have many of the good things we value about our democracy in them. The Constitution Act, 1867, reads like an instrument creating an absolutist monarchy. It does not actually work that way, entirely because of conventions.

The way it really works takes a lot of explaining, and our constitutional law is guilty of length and ambiguity, even on things that require neither length nor ambiguity. Some things we teach in law schools must be complicated, because they deal with complicated problems. Constitutional law is often complicated because it is more like DNA than a car engine: it is a product of evolution (not rational design), with the haphazard genetic material of historical-deadends still embedded in its substance.

On the particular question of royal assent, the bottom line is this: no regal figure (be they the Queen, or her representatives, the Governor General or the Lieutenant Governors) can now deny royal assent as the final stage of converting a bill into a statute. Royal assent is a nominal process, and has been for a very long time.

The last time someone tried to litigate this issue, they were correctly tossed from court. And the Federal Court, properly, observed:

The provenance of the power to grant or withhold assent lies in the royal prerogative, but that power is now embedded in section 55 of the Constitution Act, 1867, and how that prerogative is exercised is constrained by constitutional convention.  As Professor Hogg observes, in granting assent, the Governor General “plays no discretionary role whatever”; rather, the Governor General is bound by the conventions of responsible government and “...must always give the royal assent to a bill which has passed both Houses of Parliament” (Hogg at 9-22).  There is “no circumstance” which would justify refusal of assent, as the obligation is that of a constitutional convention (Hogg at 9-22).

Even the Lieutenant Governor of Ontario denies having this power to deny royal assent, on her own website:

Can Royal Assent be withheld?

There is now undoubtedly a constitutional convention that the Lieutenant Governor will grant Royal Assent to bills that have been passed by the Legislative Assembly.

What is reservation?

According to the Constitution Act, 1867, the Lieutenant Governor may reserve bills instead of granting Royal Assent. Reserved bills may be assented to by the Governor General in Council (the Governor General acting on the advice of the federal Cabinet) within one year, or else they do not become law.

With the full establishment of responsible government and the development of the court system, there is now a constitutional convention that reservation will not be exercised.

Only two bills have ever been reserved in Ontario. The Hon. Sir William Howland, second Lieutenant Governor of Ontario (1868-1873), reserved two bills in 1873 on advice of the Premier. Ultimately, these bills were not given Royal Assent by the Governor General in Council and did not become law.

There are those who wish to resuscitate the "disallowance" powers in the Constitution Act, 1867, in response to a bill they dislike. We are seeing this now in the debate over the Ford government's bill reducing Toronto's city council. But be wary of the "Make Disallowance Great Again" movement, not just because money spent in support of a court challenge will show a very poor return on investment. Be worried about it also because what is good for your disallowance goose will be good for other folks' disallowance gander.

As Adam Dodek alluded to on Twitter over the weekend, the last time a Lt Governor tried (unsuccessfully) to usurp the legislature through disallowance was in relation to a CCF bill in Saskatchewan. The Lt Gov in 1961 was a prominent conservative lawyer (and Diefenbaker appointee to the office) who had worked for the oil industry. The CCF (predecessor to the NDP) passed a bill allowing one-sided contracts between farmers and oil companies to be adjusted. The fall-out from the Lt Gov decision to deny royal assent was considerable, especially since the Diefenbaker government had no idea the Lt Gov was planning to reserve on the bill. Concerned it would be perceived as meddling in provincial jurisdiction, the Defienbaker government introduced its own order-in-council, effectively giving royal assent to the bill, and ending the crisis. (A good summary of this case is here.)

The assumption and practice ever since (as the Lt Governor of Ontario's website makes clear) is that disallowance is obsolescent, even though it still exists on paper.

But let me suggest: Assuming it was even possible to "Make the Disallowance Power Great Again" and everyone who has concluded that the power is now obsolete is wrong, the Saskatchewan story, alone, should signal "be careful what you wish for". In the final analysis, the legislature (even when commanded by a majority with whom you disagree) is the only truly democratic aspect of our provincial and federal governments (and even at the federal level, an exception must be made for the senate). Everyone else (and that includes the Prime Minister in their role as Prime Minister) owes their office to something other than direct election to their post.

Governors General and Lieutenant Governors are appointed. The GG is appointed nominally by the Queen on the advice (which must be followed because of those pesky conventions) of (ultimately) the PM. The Lt Governors are appointed by the GG, again on the (mandatory) advice of (ultimately) the PM. If the PM chose their former gym teacher, that would decide the matter.

Now you want to empower that vice-regal appointee to choose not to give to assent to a bill? Maybe the Lt Governor does not believe in climate change, because appointed by a prior federal government opposed to carbon taxes. Maybe the Lt Governor does not like the idea of proportional representation. Maybe the Lt Governor does not like whatever [enter something you care about]. He or she is not accountable to you. You didn't vote for him or her. At best, you voted for a candidate of a federal party that won enough seats to command the confidence of the House of Commons and therefore (again by those pesky conventions) its leader was appointed prime minister by the GG. And that leader (maybe now long since departed the scene) decided the identity of the Lt Gov. That's a lot of attenuation in the accountability system.

Ah, but the Lt Gov serves at pleasure and therefore her security of tenure might be truncated. So the PM could advise (order) their removal by the GG. So that is a check, surely. And so we can have a disallowance power after all! But let's be clear here: you would then prefer a system in which the PM (through the Lt Gov appointment and dismissal process) can decide what provincial bills become laws, and which do not.

If that's your choice, you've abandoned federalism. You have a unitary system dressed up as federalism, with all power now concentrated in one person, the PM. That sort of constitutional arrangement would be a very bad thing, and nothing but mischief would result.

Some people may wonder, therefore, what is the point of the GG or the Lt Gov, and that is a fair question to ask. Personally, I think these offices perform several important state and legal functions -- although royal assent is not one of them. If we didn't have them, we'd have to invent them. I will not belabour that point here, and can only refer you to my podcast lectures on constitutional and public law and my various writings, including The Laws of Government: The Legal Foundations of Canadian Democracy.

My key takeaways from this post, however, are more straightforward. I shall amplify Andrew Potter's interesting synthesis of partisan blinders and warn (in relation to his first marker): Beware of the cognitive bias of "partisan constitutional nearsightedness". Always ask yourself: Would I be happy if the people I disagree with had the same powers to stymie the, um, "will of the people" the next time they are out of office?

And always be conscious of these facts:

  • Yes, some do, but not every stupid thing a government does violates the constitution.
  • If you want the constitution (and probably be extension, judges and lawyers) to do all the heavy-lifting in your society, you are asking for a technocracy, not a democracy.
  • If you oppose stupid things the government does, your tools are very often the ballot box, a free press, free speech and association and an engaged citizenry, not the Lt Gov.
In sum, the constitution and constitutional litigation has its place. But it is a very small place. For everything else, there is democracy. And if you don't like that very much because it produces peverse outcomes at times, I recommend a quick tour of the peversities spun-up by other systems, historical and current.