Legal Brief for February, 2020

Can Impeachment Happen In Canada?

With the impeachment trial of President Trump coming to its foregone, albeit still controversial, conclusion in the United States, I was asked the other day by a client whether a similar process can happen in Canada.  The short answer is no.  The reason for the difference between our countries lies in the unique nature of the U.S. political system, born as it was out of the turmoil of the American Revolution and the evolutionary nature of our political system, most of which was inherited from Great Britain.

At the heart of the American Revolution was a deep concern about what they viewed as the despotic powers that a monarch, King George III at the time, could wield over a society.  The founding fathers (how quaint that now seems to be!) of the 13 colonies therefore set out to design a political system in which power and control would be widely diffused and which would require a high degree of consensus in order for laws to be enacted.  The result was what is known as a bicameral legislature, meaning that in the U.S. system there are two separate bodies which have the right to pass laws, being the House of Representatives and the Senate.  A proposed bill must be approved by both bodies, and then it must also be approved by the President, in order for it to become law.  This dual body system is replicated in each of the 50 states as well.  In the Canadian system, whether at the federal or the provincial levels, a law needs the approval of only one legislative body, being the House of Commons federally and the legislative assemblies of each of the provinces.  As well, the Prime Minister, or the Premiers for the provinces, have no independent right to approve or reject legislation.  They simply have one vote of their own, equal to all the others who are elected, to exercise on a bill before the House or an Assembly.

In addition to diffusing power throughout their system, the framers of the U.S. constitution also were concerned about the potential for the possible abuse of powers by whomever was the President of the day.  They addressed this concern by including in the constitution a provision that allows the House of Representatives to initiate a process to remove a President from his (or her, eventually) office for reasons of "bribery, treason or other high crimes and misdemeanors".  As we have just seen, this power of impeachment must first be exercised in the House, and then it is subject to a final approval or not by the Senate.

In the British political system, which it must be noted was not born out of revolution but rather evolved slowly over many centuries, and in conjunction with the slow but ultimately successful process of neutralizing the independent powers of the monarchy, there is no legislative right for the Prime Minister of the day to be removed from office.  Basically the only ways that a Prime Minister can be removed in that system, which Canada adopted pretty much entirely, is if the Prime Minister resigns, dies or loses an election.  If there is a groundswell of public dissent against a Prime Minister it is possible for the member of the Prime Minister's own party to try to persuade a Prime Minister to resign.  This happened in Great Britain in 1990 when Margaret Thatcher resigned from her position as Prime Minister after the party rank and file basically revolted against some very controversial policies that she wanted to enact.

Back to President Trump - given the failure of the Democrats to convince sufficient Republicans in the Senate to vote in favour of impeachment, it will now fall to the voters of the U.S. to in effect conduct their own impeachment process when they make the final decision on his political fate during the election scheduled for November 2020.