Thread by @MichaelChongMP

1/ Many constituents have been asking me, what did the PM do wrong? And why is this a constitutional crisis? I’ll try to lay it out as best and simply as I can.

Canada’s constitution, our most basic law, is both written and unwritten.

2/ The written constitution is found in various constitution acts. Most well-known are the Constitution Act, 1867 (formerly the British North America Act, 1867) and the Constitution Act, 1982 (containing the Canadian Charter of Rights and Freedoms).

3/ But much of our constitution is unwritten. “Constitutional conventions” are part of our unwritten constitution. One unwritten constitutional convention is called the “Shawcross doctrine” or “Shawcross principle”.

4/ The Shawcross doctrine has been adopted by all federal and provincial Attorneys General in Canada. Attorneys General are the top law officers, top prosecutors, in Canada. You can read about the Shawcross doctrine here:

justice.gov.nl.ca/just/prosect/g…

5/ Yes, I know, it’s a written document … but it’s unwritten in the sense that it’s not written in the constitution acts.

6/ In brief, the Shawcross doctrine says that the Attorney General is not to be put under pressure by the PM with respect to a criminal case. This is an important principle to protect the independence of our justice system, the judicial branch of our system.

So what happened?

7/ The PM - head of the executive branch - wanted to stop a criminal trial from proceeding for SNC-Lavalin. So, last September he talked to the Attorney General and told her so. The Attorney General told him she had made up her mind and the criminal trial was going to proceed.

8/ Then, after Christmas, the PM, in effect fired the Attorney General when she didn’t do what he wanted.

This is crisis #1: The constitution has been violated. (i.e. The unwritten convention of the independence of the Attorney General in criminal matters has been violated.)

9/ The branch of our system that can hold the PM accountable on a non-criminal, non-statutory breach of a constitutional convention is the House of Commons. It’s the legislative branch of our system.

10/ Among other things, the House of Commons, its committees & parliamentary parties can vote to censure the PM; vote to hold the PM or gov’t in contempt of Parliament (ex. Harper gov’t); remove the PM as leader of the parliamentary party & select another MP to be leader & PM.

11/ But the House of Commons and its justice committee, being majority-controlled by Liberal MPs and the PM, have been unwilling or unable to hold the PM accountable.

theglobeandmail.com/politics/artic…

12/ This is crisis #2: Our legislative branch, so far, has been toothless in enforcing our constitution in the face of executive misuse of power. The crisis became public on February 7th in the @globeandmail. It's now four weeks and counting.

13/ And there is a third crisis. But first, a bit of theory on our unwritten constitution.

How do you know what an unwritten constitutional convention is? It’s unwritten after all.

14/ Well, as I was taught by the late Professor Stefan Dupre at @UofT, an unwritten constitutional convention is determined through a 2-step test:

#1 Can the convention be articulated?
#2 Do the people in the political system act in conformity with the convention as articulated?

15/ If the answer is “yes” in both steps, then it is an unwritten constitutional convention.

If not, then repeat Step #1 with different articulations until both Step #1 and #2 are “yes”.

This means that the unwritten part of our constitution can evolve. For better, for worse.

16/ This is crisis #3: If this remains unresolved & the PM “wins” the next election, we’ve established a dangerous new convention - a PM can interfere in a criminal trial by pressuring the Attorney General. If the Attorney General doesn’t do what the PM wants, they can be fired.

17/ Professor Craig Scott at Osgoode Hall Law School, York University makes this point about crisis #3 in his recent piece in Policy Options. @CraigScottCA

policyoptions.irpp.org/magazines/marc…

18/ I hope this helps explain what the PM did wrong and why this is a constitutional crisis. End.