The US Supreme Court decision July 9 in Trump v. Mazars USA, LLP et al (2020) 591 US ___ once again demonstrates the difference between the powers of the US Congress and the Canadian Parliament and Legislatures. At issue was the scope of the subpoena powers of the US House of Representatives. Various Committees of the House had subpoenaed the personal tax records of the President. The President argued that the records were personal and therefore were beyond the scope of the subpoena power of the Committees. On the other side, the House argued that it had broad subpoena powers that included the records in question. The Court rejected both arguments in their extreme forms. Instead the Court set out a relatively high test for the Committees, quashing the subpoenas as they were issued. In doing so they provided an analysis that clearly demonstrates the difference between the powers and foundations of the US Congress and Westminster Parliaments.
The Court indicated that there was no inherent stated constitutional power of Congress to issue subpoenas. The subpoena power is a derivative one and can only be used in aid of its legislating (or impeachment) role. In short, a subpoena must be focused on, and have the purpose of, assisting Congress in in some form of legislative initiative. Any “oversight” role is tied to an assessment of government operations that could lead to legislative amendments. It was difficult for the Court to find that the President’s personal tax records, like any other individual’s tax records, would be able to assist in the legislating function. However, the Court did leave the door open for such a subpoena if Congress could demonstrate that (Syllabus page 4, decision pages 19-20):
- There are no other sources of information that could reasonably assist Congress in its inquiry related to legislative change;
- The request is no broader than reasonably necessary to support Congress’ legislative objective;
- Congress can provide evidence to show that a subpoena advances a valid legislative purpose. The more detailed and substantial the better, particularly when the proposed legislation affects another branch of government and the office of President; and,
- The subpoena is not being used for institutional advantage between the branches such that a subpoena puts an undue burden on the President.
Presumably, if Congress can meet these conditions, they can re-issue the subpoenas.
The decision of the Court is firmly rooted in the American Constitution’s strict separation of powers in which each branch of the State is relatively equal to the others; the rights of individuals (here the President’s records were personal) are paramount to the power of all institutions; there is are few unwritten constitutional principles; and that Congress is purely a legislative body, with a few enumerated additional powers such as impeachment. Finally, the Constitution is seen as a clean break from the British system of government and its Parliament. Therefore, there are few, if any, inherent powers in any branch of the state.
The Canadian Parliament and Legislatures are founded on a completely different footing. Whereas the US constitution is seen as a clean break from Britain, the preamble to the Canadian Constitution Act (1867) provides that the Canadian constitution is to be similar in principle to that of the United Kingdom. Further, section 18 provides that the two Houses of Parliament have the same privileges, immunities and powers enjoyed by the UK House of Commons. For provincial Legislative Assemblies, the privileges, immunities, and powers flow from the Preamble (see Vaid decision in the Supreme Court of Canada 2005 SCC 30).
As a result, Parliament is sovereign and “supreme” in the sense that it has the complete upper hand in any potential “political” dispute with the government. One of the main constitutional functions of Parliament is as a deliberative assembly that includes a primary role of holding the government to account. The government is not co-equal with Parliament. Continued parliamentary confidence and the resulting accountability of the government to Parliament is the focus of the constitution as it relates to the relationship between the legislative and executive branches of the State.
As for the power to summons, that power is inherent in both Houses. Parliament in the UK, and therefore in Canada, based on the constitutional provisions noted above, was considered the “High Court of Parliament” with all the powers afforded to courts. Although many of the functions of adjudication have passed to the courts, the inherent powers of Parliament, including the summonsing power, remains intact.
Even if the scope of the power to summons is now limited to Parliament’s functions, those functions are very broad. There is still an underlying constitutional principle of parliamentary sovereignty and supremacy in Canada, albeit limited by the Constitution. However, the Constitution does not grant power to Parliament in the same way as in the United States. In Canada, the constitutional assumption is that the powers of Parliament are virtually limitless, except as limited by the Constitution. In short, unless the Constitution limits its powers, Parliament can exercise them subject only to political, not judicial, consequences.
To demonstrate the difference between Canada and the United States, one need only consider the broad scope of the parliamentary inquiry into the sponsorship program of the federal government in the early 2000’s, where numerous individuals were called to testify about their personal involvement and required to provide information. They could not claim any constitutional right to not attend or answer questions. Their appearances and testimony was protected by parliamentary privilege that precluded any information being used in any subsequent court or inquiry proceedings (see Gagliano v Canada (Attorney General) 2005 FC 576). The privilege is based on the Bill of Rights, 1689, which in turn was based on the notion that Parliament was the highest court in the land and that no lower court could question anything that took there.
A second example was the 2008 inquiry into the Airbus purchases to be made in Canada, where it was alleged (although not proven) that the former Prime Minister, who was acting as a private citizen consultant on the purchases, had taken a kick-back for certain contracts. A parliamentary committee investigated. During the inquiry the House of Commons used two powers of summons that were of note. First, a major witness required by the Committee was in jail awaiting deportation for various fraud and bribery charges in Europe relating to the same subject. In order for him to testify it was necessary for the House of Commons to authorize the Speaker to issue a warrant to the prison authorities to release the witness into the custody of the House of Commons to allow him to testify before the Committee. The Attorney General of the province and the goaler accepted the warrant to temporarily release the witness into the custody of the House of Commons, even where the witness had been incarcerated by the equivalent of a High Court Justice. They accepted the higher authority of Parliament without even seeking the permission of the court that issued the incarceration order.
The second was a threat to summons the tax records of the former Prime Minister. In the end this power was not tested. As a result of the testimony of various witnesses the former Prime Minister was called as a witness to discuss the various transactions and the amounts of money that he received. Ultimately the former Prime Minister entered into an agreement with the Canada Revenue Agency to ensure that all appropriate taxes were paid on the money received, amounts that were disclosed during the Committee proceedings.
Throughout the various proceedings the lawyers for the former Prime Minister and others had attempted to argue that their client’s rights were being infringed. However, in the end, all of the questions posed were answered under the protection of privilege.
Had the former Prime Minister been in office at the time of the Committee hearings there is every chance that he would have been compelled to produce his tax returns, and any failure to do so could have been seen as a contempt, with the possible consequence of his defeat in a vote of confidence and the collapse of his government.
This experience, when compared to the recent US Supreme Court decision clearly demonstrates the differences between the US system of separation of powers and the Westminster system of Parliament constituting the “grand inquest of the nation” with a focus on holding the government to account, in addition to legislating. To hold a government to account and to inquire into those matters that need to be publicly examined requires the broader power to summons, and when necessary compel testimony, regardless of the position held by the witness.
Although some may see the Westminster system as antiquated and “unstable”, the requirement for continued confidence and accountability, and the ability to summons and demand answers, does provide for the ability for the people’s representatives to review in real time all concerns of public importance, politically motivated or not. No-one in the country can avoid such necessary scrutiny. In the end Parliament can have the government dismissed, and the government’s actions judged immediately thereafter in an election.
The decision of the US Supreme Court puts in stark contrast the distinction between a parliamentary democracy and a congressional one. From where I sit, it is clear in my mind that a system that allows for “political” disputes are best resolved in the “political” institution whose judgements can result in its own dissolution and an immediate election. This, in the end, is the check on the exercise of any powers used, and it is the correct one.
If nothing else, this contrast should be at the front of mind of those who may not be happy with the system that Canada has inherited from the United Kingdom and look to certain aspects of the American constitutional experience for answers: fully written constitutions, fixed election dates and proportional representation (not American, but almost necessarily tied to fixed date elections).
What we have may be far from perfect but, for the sake of democracy and transparency, political accountability of government should rest with the elected and not with the courts.