Could It Happen Here?

As we watch the rapid and horrifying descent of America into the ever-enlarging ranks of authoritarian nations who have eschewed democratic values, one question haunts me over and over again. Could it happen here? Could Canada, within our existing legal structure, become an authoritarian state?

The answer seems to be a resounding “yes.”

Western democracy is premised on the fundamental respect of its institutions by its participants. The bottom line is that democracy exists in large part based on the good will of its leaders. Power is split between the three coequal bodies of the legislature, the executive, and the judiciary. The rule of law is based on agreement by everyone to follow those laws and conventions that make up our legal system, and to respect the discrete role of each. In Quebec, the Civil Code makes this reliance on the ethics of its participants more explicit than most. The lengthy document mentions “good faith” 81 times.

In Canada, the Prime Minister is the head of government. The Governor General is the head of state, serving on behalf of the King of England but on the advice of the Prime Minister, and with very little real, exercisable, power.

In the event that a Canadian Prime Minister were to disregard our constitution and conventions with the support of a majority caucus as blindly loyal as today’s Republicans are to Trump, in practice it would be up to court challenges to limit the asserted power of the Prime Minister.

Trump, however, is showing the limits of the court challenge process. While Americans polled overwhelmingly believe that the President should follow court rulings, public opinion polls don’t force him to do so.

If the Supreme Court of either country were to rule that the executive is exceeding its authority and violating the constitution, and the government does not abide by the ruling, what is the enforcement action? If a government agency receives an order from the court telling it not to do an action that cabinet — the Crown — insists they must do in spite of that court ruling, who will they follow?

According to the rule of law, the court ruling would apply. And in the normal course of events, the Crown would back down and change their approach to address the court’s concerns or abandon the illegal action altogether. To do so would be to act in good faith.

If, however, the Prime Minister presses the issue and simply refuses to comply, and cabinet directs the government agency to continue its judged-illegal actions, what is the court’s remedy? Does one exist?

Would the Ottawa Police and the RCMP duke it out in front of Rideau Cottage to enforce a warrant against the Prime Minister? Would the Metropolitan Police in DC fight it out with the Secret Service to detain the President to do so in an equivalent circumstance?

Parliament, in our hypothetical situation, has a loyal majority in support of the government — which is often the case in Canada and is currently the case in the US — so a finding of contempt of Parliament forcing an election is not in the cards. And with no fixed election date — the law that creates one in Canada has no teeth —, even compliance with the constitutional requirement to have an election within 5 years is subject to the good faith following of the rule of law by the Prime Minister and Governor General. It is not clear that the Supreme Court would have the power to order the dissolution of Parliament should this constitutional requirement be ignored.

The premise of our legal system is that escalating non-compliance with the law will eventually end up with some form of violence, such as forcible arrest and imprisonment. The trouble here is that the law enforcement systems are themselves subject to the control of the executive branch of government. The Commissioner of the RCMP reports to the Minister of Justice and Attorney General, who is a member of cabinet. The Director of the FBI serves at the pleasure of the President.

A Prime Minister or President who does not voluntarily respect the rule of law then has little to stop them. The limits of their authority are based on their understanding of, and respect for, those limits.

In Canada, there is a final defence against this hypothetical dictatorial Prime Minister, but it comes with an expiry date. The Governor General, as head of state, is also the Commander in Chief of the armed forces as well as having what’s known as Reserve Power to fire the Prime Minister, which would give them the ability to assert control over the cabinet and take control of the RCMP, thus ending the deadlock. It would be hard to imagine any Canadian Governor General taking this step.

Even if they were willing to, the expiry date here is that the Governor General is named on the recommendation of the Prime Minister. A Prime Minister need only wait for the Governor General in place’s term to expire and appoint a loyalist before asserting authoritarian powers and that last line of defence will have been defeated.

In the United States, the President is both head of government and head of state. There is no such failsafe.

Parliament and Congress are meant to be a check on executive power that is designed to prevent this scenario from ever happening in their respective countries. The last time a British monarch was executed, in the 17th century, was over a disagreement between the Crown and Parliament over that separation of powers that had resulted in a civil war. As political parties become more and more centralised and their caucuses less and less independent, these legislatures no longer have the backbone to exercise their authority in preventing autocracy.

The conclusion we have to draw then is that, as voters, regardless of our specific views on policies, we have a responsibility to vote for representatives and leaders that ultimately believe in the rule of law. We may choose leaders who have extreme views, we may elect leaders that use the existing legal framework to change the direction and values of the country in ways that make many of us uncomfortable, we may have intense disagreements in the halls of Parliament.

But the one thing we must never allow is a Prime Minister who will follow the precedent of the current President of the United States in simply flouting the Constitution, the rule of law, and the conventions that keep our countries democratic.

That responsibility to sustain our democracy is ours, as voters, to own; to choose representatives who understand their role, their power, and their authority within the system.

When it comes to democracy, it is a simple question of use it or lose it.