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Doug Ford and the limits of executive authority in cabinet-parliamentary systems of government.

The first six months of Ontario Premier Doug Ford’s government have been nothing if not dramatic. The Ford government has been defined by a governing style that has often seemed arbitrary, impulsive, at times vindictive, and highly assertive of the premier’s authority over the province. Ford’s own understanding of his power as premier seems quite unlimited, asserting that: “I have final sign-off on everything in this province.”

Such claims beg questions about what restraints there are on authority of a premier with a majority government in the legislature. Those looking to the Constitution Act for answers will be quickly disappointed. A classic trick question to first year students in Canadian government: what does the Constitution Act say about the roles of the Prime Minister or provincial premiers? The answer, of course, is absolutely nothing.

Boundaries of first ministerial power largely lie within the realm of constitutional convention, a body of widely accepted but not legally codified rules, flowing from the Constitution Act’s reference to a system of government “similar in principle to that of the United Kingdom.” The arrangement is very different from that in the United States, where the constitution was designed around the principle of a separation of powers between the executive, judicial and legislative branches of government, intended specifically to constrain the autonomy of the executive.

The Ford government’s behaviour, in particular, has begs questions about what happens in cabinet-parliamentary system when we are confronted with governments that either does not understand the conventional rules and their significance, or simply chooses to ignore them? What constraints to exist, and how effective are they?

The Electorate

The ultimate constraint on executive authority remains with the electorate. Voters can choose to vote the governing party and its leader out of office. However, the opportunity to do so usually only arises every four years or so, providing very limited meaningful restraint in the interim. Moreover, quirks of the first-past-the-post system regularly produce majority governments by parties that fall far short of receiving a majority of the popular vote. Ford’s own Progressive Conservatives (PCs), for example, only received 40 per cent of the popular vote in the June 2018 Ontario election, but that translated into more than 60 per cent of the seats in the legislature.

The Legislative Opposition

The traditional answer to the question of who holds governments to account for their actions in cabinet-parliamentary systems of government, like Ontario’s, between elections, has been the legislative opposition parties. The ability of the legislative opposition to carry out that function in Ontario has been progressively marginalized over the past 25 years. Successive PC and Liberal governments have altered the procedural rules of the legislature to limit the ability of opposition parties to block or even delay the passage of legislation, and further marginalize the legislature’s already weak committee system. The routine use of massive omnibus bills, making hundreds of unrelated amendments to dozens of pieces of legislation at once, has rendered effective legislative scrutiny virtually impossible.

Ford’s decision to avoid inconvenient questions about the appointment of Ford family friend Ron Taverner as head of the Ontario Provincial Police (OPP) by simply skipping Question Period during the legislature’s pre-holiday emergency sitting drove home the assembly’s marginalization as an effective constraint on a majority government.

The Government Caucus

Doug Ford’s status as premier ultimately rides on his ability to demonstrate that he holds the “confidence” (i.e. support) of a majority of the members of the Legislative Assembly. The members of the PC party, which Ford leads, currently constitute such a majority, holding 74 or 124 seats. In theory members of the government caucus can raise questions about the government’s direction within caucus meetings. At a more fundamental level they can ultimately withdraw their support for their party leader as premier, triggering a search for a new leader within the caucus and party or even a new election. While such revolts occur in other cabinet-parliamentary systems of government, including the United Kingdom, and particularly Australia, they are almost unheard of in the modern Canadian experience.

Indeed, the only member of the Ontario PC caucus to show any serious inclination to stand up to Ford so far has been Glengarry-Prescott Russell MPP, Amanda Simard. Madam Simard, whose riding is heavily francophone, left the government caucus follo Ford’s decision to eliminate the position of French Language Services Commissioner, and downgrade status of the Ministry of Francophone Affairs. Otherwise, a caucus that is prepared to tolerate being rated by the premier’s staff on the enthusiasm with which they cheer and applaud the government’s statements in the legislature seems an unlikely source of constraint on the government’s behaviour.

The Cabinet

In past the cabinet has represented a significant significance source of constraints on the actions of Prime Ministers and premiers.  The memoirs of past first ministers frequently make references to the delivery inconvenient fiscal and legal truths at the cabinet table, particularly by finance ministers and Attorneys-General. In Ford’s case, it is not at all clear that the cabinet is being consulted on major decisions at all. Rather it seems the primary role of ministers is to be sent out to defend the edicts being delivered from the premier’s office. If finance minister Vic Fedeli is concerned about fiscal impact of the elimination of cap and trade revenues, and other Ford decisions that have cut into the province’s revenue base, all of which have contributed to the recent downgrading of the province’s credit rating, he certainly isn’t showing it publicly.

Those who had hoped that Attorney-General Caroline Mulroney would be a moderating influence on the government’s behaviour, and more fundamentally, an authoritative voice regarding the legal and constitutional boundaries of the government’s power, a role traditionally seen to be inherent in the office of the Attorney-General, have been profoundly disappointed.  It remains unclear if she is simply being by-passed and then left to defend Ford’s moves, as seemed to be the case on the downgrading of francophone services, or perhaps worse, whether she actually agrees with the premier’s impulses, and fails to grasp the extent to which they exceed well established legal and constitutional norms. Either way, her ministry is providing no effective constraint on the government’s behaviour.

The Courts

Absent an effective Attorney-General, enforcement of the boundaries of the government’s legal authority falls to the courts. The courts have moved to block the Ford government’s moves twice already; around the termination of support for electric vehicles; and the legislation cutting the City of Toronto council from 47 to 25 members  (later overturned on appeal). Further challenges are pending, but this option is ultimately limited in important ways.

Aside from the financial costs of litigation, in Canada there is a strong a tradition of judicial deference to executive discretion relative to the United States. There is a particular unwillingness on the part of Canadian judges to challenge the policy choices made by governments, except were significant issues around the Charter of Rights and Freedoms are involved.  Rather the focus of judicial review of executive action in Canada is on the legal “correctness” of government decisions – i.e. do they fall within the boundaries of the authority granted to the government by the legislature, and do they meet minimal tests for fairness and absence of bias.

The Lieutenant-Governor

Contrary to the premier’s assertions, he isn’t the one who ultimately signs off on virtually everything in the province. That authority actually rests with Lieutenant-Governor Elizabeth Dowdswell, who must assent to legislation, regulations, and major appointments, including, for example, the commissionership of the OPP, as well as appointing the premier and his cabinet.  The Lieutenant-Governor also holds the formal constitutional authority to summon and dissolve the legislature. Constitutional convention however, requires that assent be given and advice accepted from the government, except, potentially, in cases of egregious violations of constitutional principles.

The recent complicated minority government election outcomes in British Columbia and New Brunswick have placed renewed emphasis on roles of provincial Lieutenant-Governors and the discretion they can exercise in certain circumstances. The emergence of governments that act in ignorance or disregard for constitutional convention, invites questions about where lines that might prompt vice-regal resistance could lie.  An attempt to continue with the appointment of a friend of the premier as head of the province’s police force in the face of a finding of improper interference by the premier’s office by the legislature’s integrity commissioner, for example, might come close to the boundary.

Strengthening democratic control and oversight

Short of formal constitutional change, there are a number of other steps that could be taken, most likely after Doug Ford leaves office, to provide more effective limits on executive authority in the province.

The standing orders of Legislative Assembly should be revised to prohibit the use of omnibus bills, limit the use of time-allocation and closure in legislative debates, and to enhance the role of the legislature’s committee process.  In the longer-term an examination of alternatives to the first-past to post electoral system is needed to ensure the composition of the Legislative Assembly more closely reflects the voting choices of the electorate.

Finally, recent events should prompt the federal government to review its procedures for appointment of Lieutenant-Governors. The process needs to ensure the selection of individuals with the appropriate stature and experience, and understanding of their constitutional roles, to act as constitutional referees, as they have increasingly found themselves called upon to do in recent years. While Ontario’s current Lieutenant-Governor undoubtably meets these tests, the qualifications of other recent appointees to the post have been more doubtful.

In the longer term, the situation in Ontario invites reflection on whether our existing, largely conventionally-based, constitutional arrangements around the boundaries of executive authority are adequate to protect democratic processes and institutions.