Canada’s culture of deference and party discipline system lets our PM off the hook

It is not inconceivable to think of a Canadian prime minister breaking the law. I can think of a couple who could fit that description. The point is: Would any of them face anything like the consequences now facing other world leaders, before or after they left office? Not bloody likely.

Our culture of deference to the party leader, and our system of party discipline, means our prime ministers’ actions aren’t properly scrutinized

It is the season of accountability for world leaders. As if by some cosmic coincidence, a number of present and former heads of government are more or less simultaneously being brought to justice for their misdeeds, in ways for which there is no precedent. Russian President Vladimir Putin has become the first sitting leader of a major power to be charged with war crimes by the International Criminal Court. The court issued a warrant for his arrest last week, accusing him of responsibility for the illegal deportation of Ukrainian children to Russia – though the list of other war crimes Russia has committed on Mr. Putin’s watch could fill a book.

By the time you read this, meanwhile, Donald Trump may have been indicted by the district attorney of New York on charges of fraudulently concealing the payment of hush money to a former lover in the days before the 2016 election, in violation of federal campaign-finance laws. But that is far from the only legal peril facing the former U.S. president.

Charges could follow related to Mr. Trump’s involvement in the riot on Capitol Hill on Jan. 6, 2021, and the larger plot to overturn the election result of which it was a part; his personal attempts to overturn the election results in Georgia; and his improper absconding with and mishandling of top-secret government documents at Mar-a-Lago, his Florida resort – among other proceedings.

Then there is Boris Johnson, the former prime minister of the United Kingdom. Already driven from office over his repeated lies and assorted other misconduct, Mr. Johnson is now under investigation by a parliamentary committee over whether he lied, in particular, to Parliament. The matter at hand, his involvement in a Downing Street party, during what were then among the world’s strictest COVID lockdown rules, may seem relatively trivial, but lying to the House is not: Mr. Johnson could face expulsion over it.

Which brings us to … Canada. Hold on: We don’t know that Justin Trudeau has done anything wrong yet, let alone broken the law. Or at least, we don’t know that he has in the matter of China’s attempts to interfere with our elections. Previous episodes – the SNC-Lavalin affair, the WE Charity affair, the Aga Khan affair, have I left any out? – have certainly landed him and/or senior members of his government in trouble with the Ethics Commissioner.

SNC-Lavalin – the attempt, by the Prime Minister and others, to interfere with a criminal prosecution of a Liberal-connected firm, for political purposes – arguably smacked of obstruction of justice. Though a police investigation was launched, it went nowhere, not least because, as was reported at the time, several witnesses with relevant evidence were prevented from sharing it, on grounds of cabinet confidentiality.

So it is not inconceivable to think of a Canadian prime minister breaking the law. I can think of a couple who could fit that description. The point is: Would any of them face anything like the consequences now facing other world leaders, before or after they left office? Not bloody likely. Probably we will find that Mr. Trudeau did nothing illegal in the current mess. But what would happen if he had?

Whatever difficulties Mr. Trump and Mr. Johnson may face now that they are out of office, they were also fiercely challenged while in office. Mr. Trump was impeached by the U.S. House of Representatives, twice, only to be rescued by the Republican Senate’s refusal to convict. He was also the subject of investigation by a special counsel, Robert Mueller, appointed by the deputy attorney-general, after Mr. Trump’s own attorney-general, Jeff Sessions, recused himself.

Mr. Johnson faced repeated defeats in the British House of Commons, with the help of members of his own party, over his plan to withdraw the U.K. from the European Union without a negotiated agreement. His attempt to get around this by proroguing Parliament was ruled unlawful by the U.K. Supreme Court. Eventually he was forced out as prime minister and party leader after more than a dozen members of his cabinet resigned.

None of these things – impeachment, special counsel, defeat in Parliament, cabinet revolt, still less judicial limits on a prime ministerial prerogative like prorogation – are even imaginable in Canada. In part this is institutional: We do not have the same system of formalized checks and balances the Americans have, nor is the separation of powers so absolute.

Our prime ministers have powers, particularly of appointment, that other heads of government can only dream of. Our legislatures can more easily be tamed, not only by prorogation but through the use of omnibus bills, limits on debate, or snap elections – or the threat of the same. Our committees are not so powerful as those in either the U.S. or the U.K.

But in part it is because of our culture of deference to the party leader, and to the prime minister in particular. Canada’s system of party discipline, it is well known, is among the most ferocious in the democratic world. A 2020 study of voting records in the 42nd Parliament, carried out by the Samara Centre for Democracy, found the average Canadian MP voted with his or her party fully 99.6 per cent of the time. The most independent-minded MP in the House bucked his party on just 3.4 per cent of votes; no other MP dissented even 2 per cent of the time.

This is especially glaring in the case of government MPs. Opposition MPs, it is true, are no less captive of their party leader. But at least opposition MPs, pious frauds though they may be, have a professional interest in serving as a check on abuse of power. Whereas government MPs seem to think it is their job to collude in it.

It was not always thus. It is not often recalled that, until the 1930s, a member of Parliament, on being appointed to cabinet, had first to resign his seat and run in a by-election. The practice, an inheritance of the British system, had its roots in the ancient proscription of ordinary members of Parliament from accepting offices of the Crown. But more broadly, it was because the MP’s role had changed: from being a watchdog on the government – yes, even as a member of the governing party – to being a member of it. Before he could accept such a post, therefore, he was obliged to ask his electors’ permission.

It wasn’t necessarily the most practical idea – more than one critical event in Canadian political history has turned on a prime minister in a narrowly divided Parliament losing his majority the moment he appointed a cabinet – but the thinking behind it is revealing, as is our inability to comprehend it. We have lost any sense that members of the governing party have any duty but to support the government, as uncritically as possible.

Consider the present imbroglio. Let’s be clear about one thing first: If the Liberals were in possession of a majority nothing would come of it. Neither the Prime Minister or the government he leads would face any consequence or even close scrutiny for anything they might have done or not done in the face of China’s attempted election interference – no public inquiry, no independent special rapporteur, probably not even committee hearings.

It is only because we are in a minority Parliament that they have so much as a chance of being held to account. But even there it is a near thing. Liberal members of the committee on Procedure and House Affairs (PROC) had no difficulty in filibustering for days on end to preserve the Prime Minister’s chief of staff, Katie Telford, from having to testify about what she or the Prime Minister knew when, much as Liberal members of other committees had prevented them from calling witnesses – into SNC-Lavalin in particular – in the days when the government had a majority.

(The same might be said, by the way, of the NDP members of these committees, who seem inclined to do the least they can possibly do to hold the government to account rather than put in jeopardy last year’s supply-and-confidence agreement. Party leader Jagmeet Singh’s intervention this week, helping the government in from the limb it had put itself on with the Telford filibuster, was in much the same spirit: While she will now have to testify before PROC, she was spared from having to testify before the Ethics committee, where unlike PROC a Conservative occupies the chair.)

This is the key. I have said the problem is that prime ministers, of whatever party, have too much power. That also makes the problem difficult to correct. It is possible to imagine all sorts of reforms to strengthen parliamentary oversight and hold the prime minister to account. But all of them require the prime minister’s approval to implement, and thus none of them are ever likely to pass.

But why is that? Ultimately the prime minister’s powers do not derive from the laws or rules of the House – those can always be changed – but from the willingness of government MPs to acquiesce in them. Reforms may not be possible unless the prime minister agrees. But reforms are only necessary because government MPs refuse to do their job, as members of the legislative branch, of holding the executive to account.

Were they to take a more constructive view of their role as members of Parliament – supportive of the general direction of government policy, but watchdogs nevertheless against waste, incompetence and arbitrary rule – then not only would it be more possible to curb the excessive powers of prime ministers, but prime ministers might not be so quick to abuse the powers they have.

But as they have enlisted as the Prime Minister’s obedient servants, the Prime Minister, like previous prime ministers, can rest easy.