He could happen here

Adam Dodek is a professor of constitutional law at the University of Ottawa and the author of Constitutional Challengers: The Heroes, Villains, and Crusaders Behind Canada’s Biggest Cases.

Canadians have had a front-row seat to Donald Trump’s daily assault on the rule of law. We’ve watched as Mr. Trump unleashes ICE and Border Patrol agents as his own private paramilitary force, ripping people of colour off city streets, unlawfully detaining citizens and leading to multiple deaths, including those of Renée Good and Alex Pretti in Minneapolis.

We’ve seen Mr. Trump politicize the Justice Department, interfere in prosecutions to persecute his enemies and immunize his friends and supporters.

We are no longer shocked when he uses his position to enrich himself, members of his family and his friends. We are growing numb as he and his sycophants belittle, mock and threaten judges, eroding public confidence in the independence of the judiciary and the rule of law. On and on it goes.

Against this background, Canadians should ask themselves: Could this happen here? The short answer is yes. If anything, it would be markedly easier for a strongman (or woman) to assume vast powers in Canada than it has been for Mr. Trump. Here’s how it could be done, and what can to be done to prevent it.

A head start in the race to tyranny

In a 100-metre hurdle race to tyranny, where the U.S. begins at the starting line, Canada would be placed at the 30- or 40-metre line, with far fewer hurdles to overcome. Canada has a head start on autocracy because it has notably fewer checks and balances on the powers of government compared to the U.S. Too many of Canada’s checks on power are unwritten understandings – political gentlemen’s agreements that are insecure and eroding.

The Canadian system of government was constructed very differently than the American one. The U.S. Constitution was designed precisely to prevent the rise of a tyrant, like King George III, as president. The Founding Fathers of the American republic adopted 18^th-century French thinker Montesquieu’s views that separating powers amongst the different arms of government was the best way to prevent tyranny. This was a radical departure from prevailing forms of government which centralized power in a king, a kaiser or a czar.

Thus, the U.S. Constitution divided powers between three branches of government: the legislature (Congress), the executive (the president), and the judiciary (the courts).

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Canada has no strict separation of powers. Our legislative and executive branches are intertwined. Arguably, the first principle of Canadian government is that the prime minister must always have the support of the House of Commons. The prime minister and their cabinet are supposed to be accountable to the House of Commons, but as Andrew Coyne so cogently explained in his recent bestseller, The Crisis of Canadian Democracy, the opposite is usually true in Canada.

With a majority government (or with effective majorities that Justin Trudeau had and Mark Carney enjoyed for much of his first year in power), the House of Commons essentially does the prime minister’s bidding.

No government official worries much about what a House of Commons committee might do. These committees pale in comparison to Congressional counterparts which may undertake investigations, subpoena witnesses, summon cabinet ministers and recommend criminal charges, if appropriate. In comparison, Canada’s committees are eunuchs of accountability. The House of Commons does have the power to censure, reprimand and call individuals to answer questions before them, but these powers have been rarely used in the past 50 years.

In contrast, elections provide the ultimate accountability mechanism. As we saw in the recent elections in Hungary, they can supply a check on a president or a prime minister who has grown unpopular. Additionally, in the United States, midterm elections often act as a plebiscite on the president’s policies, and if they result in shifting the control of the House of Representatives or the Senate, they may significantly restrict a president’s power. To state the obvious, Canada has no midterm elections for Parliament. A prime minister with a healthy majority can be ensured at least four years of clear sailing through Parliament.

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Worse yet, as we have seen recently with Mr. Carney, a prime minister may be able to convert a minority government into a majority one through floor crossers without the bother of having to obtain the consent of the voters. Furthermore, a prime minister could easily push those four years to five by amending or repealing fixed-election-date legislation.

And if an autocratic prime minister decided that Parliament had become too bothersome, they could simply prorogue it for months at a time. The Canadian Constitution permits Parliament to be prorogued for up to a year. A president has no equivalent power to sideline the U.S. Congress.

A Canadian prime minister exercises many powers with fewer restraints than an American president. He or she can appoint whomever they want as ministers, deputy ministers, and ambassadors, without the need for any parliamentary scrutiny or approval. In the U.S., these appointments require Senate confirmation, which serves as a brake on excessively problematic appointments.

The limits of the Charter (and of the courts)

The Canadian Charter of Rights and Freedoms protects a broad array of rights, including the right to vote, freedom of expression, freedom of religion, liberty, language rights and equality. As is well known, the Charter came with a legislative override, also known as the notwithstanding clause, which allows the federal Parliament or provincial legislatures to override some Charter rights in certain circumstances. There is no equivalent in the United States.

Thus, if the federal government in Canada were to unleash the equivalent of ICE against Canadian citizens and residents, the government could immunize its actions using the notwithstanding clause. It could override Charter rights to deport non-citizens.

The courts are supposed to protect against abuses of power. The American experience with Mr. Trump has shown that courts can slow down an autocrat and block some actions, but their overall impact is limited.

Putting our faith in the Supreme Court of Canada would be misplaced. This court only decides 40 to 60 cases per year, and it takes years for cases to make their way to the high court. Earlier this year, the Supreme Court heard an appeal in Quebec’s Bill 21 case, banning religious symbols in the public sphere. That law has been in place for seven years.

The SNC-Lavalin-ing of the power of prosecution

One of the hallmarks of a liberal democracy operating under the rule of law is the independence of prosecutors. Authoritarian regimes use the power of the law to target their political opponents and other “undesirables.”

Mr. Trump has converted the Justice Department into his own private prosecution unit. He has instructed his Attorney-General and U.S. attorneys about who to prosecute and against whom to abandon prosecution.

In Canada, we’ve gotten a sneak peek as to how this could happen here.

The SNC-Lavalin scandal set a dangerous precedent for the politicization of criminal prosecutions. This Canadian company was faced with serious charges of fraud and corruption. As Minister of Justice and Attorney-General of Canada, Jody Wilson-Raybould resisted months of attempts by the Prime Minister’s Office to pressure her to give preferential terms to SNC-Lavalin. She paid for this resistance with her job and, ultimately, her political career. Mr. Trudeau twice more won federal elections.

Yes, there were inquiries and investigations that made modest recommendations, but they were largely ignored by the Trudeau government. The Carney government has similarly shown no inclination to implement these reforms.

One lesson of SNC-Lavalin is that it would be relatively easy to bend the criminal justice system to the will of an autocrat, in certain circumstances.

A paucity of accountability mechanisms

Canada’s system of government lacks many of the independent checks found in the American one.

The U.S. has a system for appointing a special counsel to investigate and potentially prosecute official wrongdoing in cases where a conflict of interest exists for usual government officials. For example, former FBI director Robert Mueller was appointed to investigate potential Russian interference in the 2016 presidential election.

Canada has Royal Commissions and public inquiries – and oh how we love them – but they can only make recommendations. While sometimes their recommendations are enacted into law, most frequently their reports sit on a shelf somewhere and gather dust.

Canada has numerous agents of Parliament with varying degrees of efficacy. The strongest would be the auditor-general, whose report on the sponsorship scandal under the Chrétien government led to the ultimate fall of the Liberals from power in 2006. But most of the other agents of Parliament are paper tigers. For example, the Information Commissioner presides over an ossified access-to-information system whose title sounds more and more Orwellian each day. Access-to-information is the lifeblood of accountability, but our system seems more designed to obscure rather than disclose.

No mechanism to rid us of an autocrat

Once ensconced (metaphorically) in 24 Sussex Dr., there is virtually no mechanism to remove a prime minister who is unwilling to vacate the office. The recent experience of Mr. Trudeau overstaying his welcome is proof positive of that.

Canada also has no impeachment process to remove a prime minister for misbehaviour. It has no equivalent of the U.S. Constitution’s 25^th Amendment, which allows the vice-president and members of the cabinet to replace a president who is “unable to discharge the powers and duties of his office.”

Neither the Liberal nor the Conservative parties have a process in their party constitutions to remove their leader, short of a full-blown leadership review vote. The Reform Act, passed more than a decade ago, provides a mechanism for parties to replace their leaders through a caucus vote, but the process is voluntary and after each election each party’s caucus must vote on whether or not to adopt this and other provisions of the Act. To date, only the Conservatives have adopted (and used, in the case of the removal of Erin O’Toole in 2022) this mechanism.

Thus, we are left with a very powerful prime minister with very few checks on their power, and next to no mechanisms to remove them if they were to go rogue on the rule of law. But there must be other institutions in our system which could potentially thwart an autocratic PM. Beyond the courts, what of the Senate, the governor-general, the provinces and the media?

Who could save us?

Could the Senate block an autocratic prime minister? Perhaps. Since its infancy, the Senate has been the problem child of confederation. Designed for regional representation, the Senate quickly became more of a palace of patronage and a cauldron of scandal than a chamber of sober second thought.

On paper, the Senate and the House of Commons are equal in powers. In practice, the appointed Senate almost always defers to the will of the elected House of Commons. In rare circumstances, the Senate has blocked bills from becoming law. If the Senate were to grow bolder and regularly veto the will of the House of Commons, it would trigger a constitutional crisis precisely because of the Senate’s lack of legitimacy.

Because the Senate is not elected and the House of Commons is, any attempt by the Senate to flex the full powers that it has under the Constitution would trigger a political crisis: a standoff between the two Houses of Parliament or between a determined autocratic prime minister and a newly emboldened upper house.

Such a showdown has been potentially set with Mr. Trudeau’s reforms, which appointed “independent” Senators without formal party affiliations. (Mr. Carney, in July, seemed to reopen the era of partisan political appointments, without the veneer of independence from the government.)

And what of the governor-general? From time to time, we hear calls for the governor-general to refuse Royal Assent to legislation. This would prevent a bill from becoming law. That does not happen and isn’t likely to in the future.

The governor-general is considered the last defence against tyranny. The office has been likened to a fire extinguisher: a potent apparatus clad in bright colours, placed in a conspicuous location, and unleashed only in cases of extreme emergency. However, sometimes you cannot find the fire extinguisher, and sometimes it doesn’t work.

Lacking any modicum of democratic legitimacy, a governor-general might understandably be hesitant to challenge a prime minister who continues to command the confidence of the members of the House of Commons who were duly elected by the voters.

The prime minister could easily neuter the governor-general by installing a crony in that position. It wouldn’t be the first time. As documented by John Fraser in his engaging new book The Governors General, during the 1980s and 1990s, the prime minister used Rideau Hall as a sort of “super Senate” for patronage appointments. It is the least difficult office for an autocrat to pacify.

Would the Canadian media rise to the occasion to challenge a would-be Canadian autocrat? The legacy media has been in decline in this country for decades. A Canadian autocrat could starve or shutter the CBC or overhaul its board to refashion the political direction of the state broadcaster. National newspapers would write stern editorials. Depending on the political leanings of the Canadian autocrat, one of them might rise to the occasion to become the unofficial opposition. Yet, another might become a soft apologist for an Ottawa autocrat. There is no guarantee the media will oppose an autocrat, let alone mount an effective opposition.

Our boisterous but toothless provinces

And what of the provinces? Could the premiers band together to restrain an autocratic prime minister? It is unlikely.

Any major changes to federal institutions require provincial approval, but the provinces cannot change the Constitution without Parliament’s approval. Moreover, the federal government could punish problematic provinces by reducing or withholding federal transfer payments to them.

They have the power of the podium, to be sure, but beyond denouncing the rise of an autocratic prime minister, attempting to use their platform and powers of persuasion, the premiers ultimately have no way to restrain or remove a prime minister.

SNC-Lavalin notwithstanding, Canadian federalism makes it harder for an autocratic PM to politicize the criminal justice system than in the U.S., which, in the case of a Canadian autocrat’s rise, is a point in favour of accountability. This is because the provinces are responsible for most criminal prosecutions. Justice Canada is much weaker than the U.S. Department of Justice, meaning that it can do much less damage than its American counterpart can.

But the justice system ultimately has limited capacity to restrain an autocrat. It is reactive – it does not initiate action on its own and it generally responds to events that have already happened.

How could we inoculate ourselves?

This is a bleak picture of the ability of Canadian democracy to prevent the rise of an autocratic PM. However, there are number of mechanisms or initiatives that could and should be taken to strengthen Canadian democracy and its guardrails.

First, political parties should have the power to remove a prime minister in a quick and decisive fashion, without recourse to the existing process of a long and complicated leadership review. As discussed, the Reform Act provides an important tool for a caucus to remove its leader. The Conservative Party in Britain has this power and its mere existence leads unpopular prime ministers to resign (Boris Johnson, Liz Truss) before they are pushed aside, the way Margaret Thatcher was by her caucus.

Every party should be pressed to adopt the provisions of the Reform Act. Better yet, the Act should be amended to become mandatory. Similarly, party constitutions should be amended to allow an exceptional majority of the national executive (75 per cent or 80 per cent, say) to remove a leader in extraordinary circumstances. It would be preferable to have party leaders with less firm control over the reins of power than party leaders who cannot be dislodged from power.

How could this be accomplished? One idea is to call on existing political operatives to build grassroots political support for the Reform Act within party structures.

For example, once upon a time, there was a group of political operatives supporting Liberal finance minister Paul Martin’s bid to become prime minister. They succeeded in capturing most of the riding associations across the country, who then elected delegates to the leadership convention, putting a lock on Mr. Martin‘s leadership nomination (he won the party leadership in 2003 with 93.8 per cent of the votes cast). It remains one of the most successful political mobilization operations in Canadian history.

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Regrettably, Mr. Martin did not detail this process in his memoirs. However, the identities of the architects of this feat are well-known within political circles. This band should reunite and expand into a multipartisan group in order to pressure local candidates of all parties to adopt the Reform Act for the good of the country.

Next, we need to codify many of the unwritten rules that form the basis for our democracy. We can no longer rely on political actors respecting these constitutional conventions. Traditionally, they were enforced in the court of public opinion through the involvement of a robust media. That has not happened for several decades.

In SNC-Lavalin, the only people who lost their jobs were Justin Trudeau’s principal secretary, Gerald Butts – who fell on his sword for the prime minister – and Ms. Wilson-Raybould, who was rewarded for her steadfastness to Canadians with a demotion and the apparent end of her political career.

We need to create a Cabinet Manual to codify constitutional conventions. Such manuals have been in existence for several decades in Britain and New Zealand. They set out rules for the exercise of power by the governor-general, by the prime minister and by ministers of the Crown. They deal with such matters as prorogation, royal assent of legislation, the conduct of government during election campaigns, government transitions, and others.

The late political scientist Peter Russell tried to kick-start such a project more than a decade ago with the support of the Public Policy Forum (PPF), but it stalled. Mr. Russell and the PPF brought together former senior public servants, academics, journalists and representatives from Britain and New Zealand to produce a foundational paper on Government Formation; the project died due to a lack of appetite from within government.

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Of course, a determined autocrat could always toss this out, but at present there isn’t even anything to chuck.

Third, to borrow a phrase, we need to “catalyze” public education, mobilization and engagement about Canadian democracy. The three go together. Our federal and provincial governments have failed miserably in this regard. We do have Historica Canada (producer of the Canadian Heritage Minutes), but we need something much, much bigger with more energy, along the lines of the successful iCivics in Boston, ironically led by a Canadian, Louise Dubé. We need to develop a national civics curriculum which the federal government can incentivize the provinces to adopt using its spending power.

Finally, we need to do less cheerleading in this country (“we have the best health care system in the world” or “our legal system is the envy of those the world over”) and more self-reflection and institution-strengthening. We need to create a national organization dedicated to strengthening Canadian democracy and educating people about it.

Ideally, it would be co-chaired by a former Liberal politician and a former Conservative politician, modelled after the Coalition for a Better Future co-chaired by former Conservative minister Lisa Raitt and former Liberal minister Anne McLellan. It would be part-think tank and part-action group.

No doubt others have additional good ideas.

Strengthening the spirit of liberty

Liberal democracy has been in decline around the world for several decades. There is no reason to think that Canada is immune from this trend. If anything, we are more vulnerable to the rise of an autocratic leader than the United States.

We have neglected many of the deficiencies in our political system for too long. However, we have not lost the chance to act. We are limited in what mechanisms or guardrails we can create or strengthen our democracy, but we should at least try.

One of my favourite quotes comes from the appropriately named American judge Learned Hand. In 1944, he gave a speech called “The Spirit of Liberty” in which he said that “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” We need to nourish and strengthen that spirit.

Icon illustrations by The Globe and Mail. Sources: Getty Images.

Editor’s note: A photo caption in a previous version of this article incorrectly stated that Paul Martin became leader of the federal Liberal party in 2023. The correct year is 2003.