University of Alberta Faculty of Law Blog

Pollsters and Alberta's Election

So which pundit or pollster got it right this past election? There are many discussions about who had the better methodology and who got it right, but I have to say the winner, in my books, is none other than our former (late) Premier Ernest Manning. In 1971, he famously quipped:

“Elect the Conservatives now and you’ll have the NDP next!”

So forty four years later, his prediction came true! Well, that is something. Take that Preston Manning with your fancy center and all its fancy machinery. Your father was not only a great politician, a very wise man, but also a clairvoyant!

Professor Lettow Lerner on Civil Juries

My former colleague and now Justice Russ Brown used to write about civil juries. We liked (I say liked because I still do but I am not sure what Justice Brown thinks today) them.

Professor Renee Lettow Lerner, one of American's eminent legal historians and Professor of Law at George Washington Law School, is guest blogging over at the Volokh Conspiracy. That is very cool.

What is even more cool is that she is blogging about the origins of civil juries.

She has so far blogged three parts:

1. America's misplaced sentiments about civil juries.

2. The unromantic origins of the jury and the search for alternatives.

3. The efforts to control civil juries due to their unpredictable nature.

Here is an excerpt from part 3:

The previous post stated that the jury was originally self-informing. Jurors came to court knowing their verdict, without any instructional proceeding. This was possible because almost all jurors came from small, tight-knit villages in which everyone knew everyone else’s business.

That state of affairs did not survive the greatest catastrophe of the age: the Black Death. In little over a year, from 1348 to 1349, the bubonic plague is estimated to have killed between 30 and 40 percent of the population of England. [See John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions 225 (2009).] In the aftermath of this almost unimaginable death, to put it gently, society changed. The mobility of labor greatly increased; persons were no longer tied to the land and didn’t necessarily know their neighbors or local events well. Jurors could no longer be counted on to come to court knowing what to say.

So a method had to be found to instruct the jurors about what had happened. That method was oral trial, presided over by a royal judge. The method could hardly have been written evidence, as in Chancery or on the continent, because few jurors could read. 

This is very cool stuff for civil jury nerds. You should read all three posts and stay tuned for more, if you are also a civil jury nerd.

Top 25 Lawyers - vote!

Two of my colleagues have been nominated for the top 25 lawyers in Canada: Peter Sankoff and Dean Paul Paton. If you think they deserve the honor, then please vote for them!

Amy Schumer sketch - The People vs. Cosby

Rickey Henderson cameo

It was December 1984, and Rickey Henderson was in his prime at the Oakland As. And just like that, he was traded to the New York Yankees.  So, of course, where else would he make a cameo but the David Letterman show (around minute 3):

 

If you fast forward to minute 14, there is also another baseball great mentioned.

How Alberta's PCs Lost the Legislative Assembly: They Forgot How it Works

Last Thursday, Premier Jim Prentice delivered a remarkable speech in Calgary to a room filled with defeated candidates, soon-to-be ex-cabinet ministers, disenchanted party supporters, and disappointed corporate donors. The mood was grim. "None of this is at all easy," Mr. Prentice conceded. While bravely taking responsibility for the party's spectacular electoral loss, he also stated the obvious: "we were defeated in this election for a number of reasons."

Many of those reasons, of course, lay beyond Mr. Prentice's control. He could not dictate the international price of oil, or re-write the unpopular history of the Redford government. He could not stop the public's healthy appetite for political change, or the successful NDP campaign. And yet, Mr. Prentice and the PCs bear responsibility for one set of avoidable errors that directly contributed to their downfall: in the critical months leading up to the election they often seemed to forget the fundamental principles of Canadian parliamentary government.

Looking back, there were troubling early signs of confusion. During his campaign for the leadership of the PC Party, Mr. Prentice floated the idea that there should be American-style term limits for premiers and members of the legislature. Although probably contrary to the Charter’s protection of democratic rights, the proposal also seemed to overlook the possibility of short term minority government, discount the fundamental principle of responsible government, and fly in the face of parliamentary tradition. The proposal was quickly dropped.

Mr. Prentice’s second error proved more costly. Lauded at the time as a strategic masterstroke, when Danielle Smith, Leader of Her Majesty’s Loyal Opposition, and eight other Wildrose members crossed the floor to join the PC caucus, Alberta’s legislative assembly lost the leadership and heart of its Official Opposition.

A combination of constitutional convention, procedural rules of the assembly, and legislative enactments grant the Leader of the Official Opposition a critical role in Alberta’s parliamentary system of government. More than a government-in-waiting, the Official Opposition promotes democratic accountability in its role as government critic and by promoting alternative policies.

The constitutional position of the Official Opposition emerged organically in British parliamentary practice. According to Murray Scott, former Speaker of the House of Assembly of Nova Scotia,: “The title ‘His Majesty's Opposition’ was first used in debate on April 10, 1826, by John Cam Hobhouse (later Lord Broughton) in the British House of Commons.” The practice of recognizing an Official Opposition and its Leader migrated to Canada over the course of the nineteenth century and continued to evolve in the twentieth to form a foundation in Canadian parliamentary government.

In his speaker’s ruling designating the Official Opposition in the House of Commons 27 February 1996, Speaker Gilbert Parent put it well:

"It is a cornerstone of our democratic tradition that government rests on the consent of the governed. This means that the minority accepts the right of the majority to make decisions provided that the right of the minority to be heard, to dissent, to air grievances and to promote alternative policies is respected.

The role of an opposition in our form of parliamentary government is therefore fundamental. Its leadership is equally important.

For this reason, Parliament has seen fit to acknowledge the importance of the individual holding the position of Leader of the Official Opposition by providing this person with support and allowances similar to those granted to the Prime Minister. As well, in its procedures the House recognizes the significance of this position, despite the lack of any official definition thereof.

The position of Leader of the Official Opposition is firmly anchored in our parliamentary system of government through practice and the implementation of various statutes and rules of procedure. The importance of the Official Opposition and its leader has been commented on both in Canada and in other countries with Westminister style Parliaments for well over a century."

A weakened and leaderless Official Opposition offered the PCs the prospects of short term political gain, but at the cost of the democratic flourishing of Alberta’s legislative assembly. Albertans noticed.

Finally, there was the fated election call itself. Mr. Prentice spent a considerable portion of his Calgary speech last week defending his much criticized decision to call an early election. It is worth quoting his justification fully:

"Let me return to the election itself, and I want to begin with the question of: why we had an election. A decision for which I have taken a fair bit of criticism and I suspect that will continue. And as I said earlier I accept full responsibility for that decision.

You know it’s clear to all of us that the Alberta government faces very serious challenges over the next five years. I remain optimistic certainly that we will overcome those challenges.

But my friends they can only be overcome by a government that has the moral authority to make tough choices. And the purpose of the election was to equip Alberta’s government with the moral authority to do what needs to be done.

And to put simply: I won the leadership of our Party last summer, but the Alberta public did not at that time confer on me the authority to do or to make any of the things that were outlined in our fiscal plan and in our strategic plan that were tabled in the legislative assembly this March."

More than a political miscalculation, Mr. Prentice’s explanation for calling the election rests on a flimsy grasp of the core principles of responsible government. Elections provide us with legislative assemblies to govern in good times and bad, in financial circumstances anticipated and unforeseen. As long as he held the confidence of a majority of the elected members of the legislative assembly (no foregone conclusion as Ms. Redford’s experience revealed), Mr. Prentice possessed all the constitutional, political, and moral authority he needed to govern, including in passing a sensible budget mixing modest tax increases and spending restraint.

Time in the private sector may have dulled Mr. Prentice’s campaign skills, and deafened his political ear, but most detrimentally, his time away from politics seems to have led him to overlook, disregard, and forget Alberta’s most important parliamentary traditions: the need for an effective Opposition to hold the government to account and the principles of responsible government.

Ms. Notley will be sworn in as premier on Sunday. She has admitted that she and her new cabinet and caucus will have much to learn as they prepare to form government. In her preparations, it may be worth providing a reminder of the principles and practices of parliamentary government. The success and longevity of her government may depend on it.

Stan Corbett RIP

The longest serving associate dean at Queen's Law passed away.

Experiential and Active Learning for Future Corporate Lawyers

I recently participated in the Estey Symposium on Experiential and Active Learning in Business Law at the University of Saskatchewan, organized by Professor Rod Wood, in his capacity as visiting Estey Chair in Business Law at the U of S, and I wrote about it for the Blog of the Canadian Association of Law Teachers. You can find the post here: http://www.acpd-calt.org/?page_id=2357.

For students, my presentation at the Estey Symposium focused on my course at the law school titled Advanced Topics in Corporate Law, which was offered for the first time in Winter 2015, and the student feedback I received on what they thought they got out of the course. This course is discussed briefly in the blog post, but if you are thinking of taking this course next year and have questions, feel free to ask them in the Comments section below, and I will attempt to respond.

So You've Decided to Elect a Minority Government

A version of this post appeared in The Globe and Mail on Monday, May 4, 2015.

As voters across the province prepared to cast their ballots, they had to wonder: would this spring election end a Conservative political dynasty of over forty years? Would there be a minority government? If so, who would lead it: the venerable Tories with their new party leader, or either of the two opposition parties vying for power? Could the NDP emerge with the balance of power, or, shock the country, and actually win?

These were the questions Ontarians asked themselves May 2, 1985 as they headed to the polls. Sound familiar?

Albertans are justifiably skeptical of polls given the confident predictions of experts in 2012 of a Wildrose victory that never came to pass. And yet, across Alberta there are signs (literal and figurative) suggesting that this provincial election may end Alberta’s status as the only Canadian province never to have experienced a minority government. One would be foolish to discount the capacity for electoral success of Alberta’s Progressive Conservative Party, but equally is it difficult to deny the plucky surge of the NDP, and the hardy resilience of the Wildrose Party. By all accounts this remains a three way race for the 87 seats in Alberta’s legislature.

These are heady times, then, for partisans of all stripes across Alberta’s political spectrum, not to mention the columnists, pundits, and twitterati who live for this stuff. But if the election does result in a minority government, it will also compel into the spotlight less familiar figures to the political stage, Alberta’s Lieutenant Governor, His Honour, Col (Ret’d), the Honourable Donald S. Ethell, and the murky often misunderstood constitutional conventions that will guide him.

As the Queen’s representative in Alberta, and possessing the executive authority granted by the constitution, it is the lieutenant governor tasked with the responsibility of selecting the premier after an election. As has often been said, and seems so often to require repeating, in our parliamentary system, we elect legislatures not governments. From that elected legislature, the lieutenant governor will ask an individual to form a government. Constitutional conventions guide and constrain the Lieutenant Governor’s choices. Constitutional conventions are those unwritten constitutional rules – like responsible government – developed over centuries of government practice which fill in the gaps and flesh out the skeleton of our constitution. Like the oxygen we can’t see around us, constitutional conventions sustain the life of our constitutional democracy.

But conventions, as the prorogation episodes in 2008 and 2009 made clear, can sometimes be unclear, obscure, or subject to disagreement among political actors and constitutional scholars.

What is uncontroversial is that, by convention, the incumbent premier will resign if a different political party wins a majority of the seats in the legislature. Alberta’s magic number to obtain a majority is 44 seats. If no one party wins a majority of seats (imagine, for example, a not totally implausible scenario of 28 seats for the PCs, NDP, and Wildrose and 3 for the Liberals), by constitutional convention, Premier Prentice has the option of meeting the newly elected legislature to try and secure its confidence. Indeed, by convention, he has the option do so even if the NDP or Wildrose win more seats, but something short of a majority.

The potential role for Lieutenant Governor Ethell arises if either Premier Prentice resigns immediately after losing his majority government, or if Premier Prentice is not able to maintain the confidence of the legislative assembly and then resigns. In either of those scenarios, the Lieutenant Governor must ascertain which party leader is capable of governing with the confidence of the legislature. That choice may not always be clear.

Which possibly brings Alberta back to Ontario in the spring of 1985. After winning a plurality of seats, but not a majority, Premier Frank Miller was defeated in a vote of non-confidence by the Liberals and NDP just over a month after the election. Simultaneously, the NDP and Liberals had agreed to an Accord, by which the NDP agreed not to bring down the Liberals in a confidence vote for two years. While political opponents and some scholars questioned its constitutionality, and its impact on existing constitutional conventions, the Accord paved the way for Lieutenant Governor Aird, after consideration and consultation, to call upon David Peterson and the Liberals to form government. Back to the Future hit theatres weeks later. Like Marty McFly, constitutional conventions exist in two time periods at once, drawing their content from the past in order to apply to new contexts of the future.

Alberta’s upcoming election results may well be unprecedented from the provincial point of view, but they will not be unknown in our longer and broader history of parliamentary traditions. It is precisely that history and those traditions which may well determine Alberta’s next premier.