do the right thing: hard power and tough choices
“[N]ine times out of ten a Governor General should take his Prime Minister’s advice…. But if the advice offered is considered by the Governor General to be wrong and unfair, and not for the welfare of the people, it behoves him to act in what he considers the best interests of the country.”
— Julian Byng, governor general of Canada, in a letter to George V, June 29, 1926.
“After considering the opinions of the constitutional experts whom I consulted regularly, I decided that, if the government lasted six months I would allow dissolution. To put the Canadian people through an election before six months would have been irresponsible, and in that case I would have decided in favour of the good of the Canadian people and denied dissolution.”
— Adrienne Clarkson, governor general of Canada, discussing her options at the beginning of the Paul Martin minority government in 2004.
The global financial crisis of 2008 struck a heavy blow. The world economy buckled in a way it hadn’t since the Great Depression of the 1930s. Its impact on Canada was substantial, and on December 4, 2008, Prime Minister Stephen Harper visited Rideau Hall to meet with Governor General Michaëlle Jean to ask for help. In the wake of the deepening crisis, he felt he needed more time to prepare a budget. He would ask Madame Jean to suspend the parliamentary session — to prorogue Parliament — until the end of January. But the governor general had more to think about than just a recession.
Much closer to home was a raging constitutional crisis. Although Prime Minister Harper was seeking time to develop a budget, his more immediate anxiety was avoiding a confidence vote on his government scheduled for December 8. His government faced a number of problems in the fall of 2008. One was that in the federal election held in October, his party had only won a minority government. True, his Conservatives had won the most seats in the House of Commons, but the Liberals, New Democrats, and the Bloc Québécois had the power to bring him down. And in early December they wanted to do just that.
On December 1, the leaders of the three main opposition parties issued a public statement announcing they had lost confidence in the Harper government and they would defeat it on December 8. The Liberals and New Democrats also stated that they had agreed to form a coalition government, led by Liberal leader Stéphane Dion, with New Democratic Party (NDP) leader Jack Layton serving as deputy prime minister. Finally, the Bloc Québécois promised to support this new government in all confidence votes for a period of eighteen months. The governor general was thus presented with a viable government-in-waiting once the Harper administration was defeated.
Stephen Harper, however, was not one to take seemingly inevitable defeat as inevitable. He denounced the planned coalition government as unconstitutional, representing an “undemocratic seizure of power” by the parties that had just lost the October election. And worse, he said, the Liberals and New Democrats would “enter into a power-sharing coalition with a separatist party,” something “they promised voters would never happen.”[1] Rallying opposition to the idea of a coalition was one thing; evading the vote of confidence was quite another. The prime minister knew that if that vote went ahead as planned, his government would be defeated and, in all likelihood, his political career would be over — hence his meeting with the governor general on December 4 and his request for prorogation.
That Harper had to “request” prorogation is significant. The actual legal power to order prorogation rests solely with the governor general, being one of the reserve powers of the Crown prerogative, exercisable at the individual discretion of the governor general and without the need for the vice-regent to necessarily follow the “advice” of the prime minister. Michaëlle Jean was presented with a rare opportunity to exercise real political power. If she accepted the prime minister’s advice, Parliament would be suspended immediately, the pending vote of non-confidence would never transpire, the Liberal–NDP coalition government would not arise, and the Harper government would continue in office. If she rejected the prime minister’s advice, the existing session of Parliament could continue, leading to the vote of non-confidence on December 8. This vote would result in the defeat of the Conservative government. Stephen Harper would have to resign, or possibly be dismissed as prime minister, and the governor general would call upon the leader of the opposition, Stéphane Dion, to form a new government.
Madame Jean had much to think about during her meeting with the prime minister. Whatever she decided would make history. We know from media reports that the governor general and the prime minister spoke together for over two hours. We also know that at one point Governor General Jean left the prime minister and went to a separate room to confer with her constitutional advisers. One can only imagine the thoughts that were running through the mind of Stephen Harper during this hiatus. A man known for his “command and control” personality was, at that point, no longer in control of his political destiny.
When the governor general returned, however, she informed her prime minister that she would grant his request for prorogation on the proviso that Parliament reconvene on January 26, 2009, and that a budget be promptly introduced and quickly followed by a vote of confidence. All of this happened in due course. The new budget was passed with the support of the Liberal Party, then led by Michael Ignatieff (Dion had resigned in December), the crisis came to an end, and the Harper government continued in office, winning re-election with a majority in 2011.
This constitutional drama unmasks a political battle of wills between parties and leaders. It also offers a vivid illustration of the continuing and very real hard powers — the reserve powers — held by the Crown in Canada.
Responsible government entails four key principles. First, the country or province must have a government that can advise the Crown-as-monarch on the exercise of her or his duties; this government must be responsible to the House of Commons or legislative assembly from which it arises. Second, this government must be led by a prime minister or premier who can serve as head of government, acting in the role of Crown-as-executive in contrast to the sovereign and her vice-regents acting as Crown-as-monarch. The Crown-as-monarch must, as a general rule, not be placed in a position where she or he is called upon to independently make political and governmental decisions; most decisions should be made by democratically elected governments. Third, this first minister must be the leader of the party commanding majority support from among the elected members of a parliament or legislative assembly. Only by possessing and maintaining such confidence within a parliamentary assembly does a first minister earn the right to be appointed as prime minister or premier. Fourth and finally, once this person is appointed as the first minister, the representative of the Crown — whether the sovereign or a governor general or a lieutenant governor — and all other public officials serving within the executive branch of government are constitutionally obligated to follow the “advice” of this first minister.
Given the logic of responsible government, the exercise of the powers of the Crown-as-monarch rarely elicits question or controversy. Most parliamentary elections tend to result in majority governments, meaning that the party winning the election has done so by winning an outright majority of the seats in the newly elected legislative body. When a single party has come to control a majority of the members in the parliamentary assembly, the consequent duty of the vice-regal representative vis-à-vis a first minister is crystal clear.
Any constitutional clarity respecting executive powers can turn murky as soon as the simplicity of majority government gives way to the complexity of minority government. A minority government, or, as the British would say, a “hung parliament,” arises when no single party wins a majority of the seats in the legislature following an election. But the Crown needs a government, and under the principles of responsible government, this government and its first minister need to command the confidence of the majority of the members of the legislature. In these circumstances, minority governments take shape, with two or more parties agreeing to work together to sustain a government in the parliamentary assembly.
In most instances in Canada, both at the federal and provincial levels, the existence of a minority government situation has not tended to result in constitutional crisis requiring the intervention of the governor. Usually when elections result in hung parliaments, the parties determine which of them can sustain a first minister and his or her government within the legislature. Of the eleven minority governments in Canadian federal history, most were based on informal alliances between the governing Liberals and a left of centre third party (the Progressives from 1921–26 or the New Democrats from 1963–68, 1972–74, and 2004–2006). On other occasions, usually when a Conservative Party formed the government, as with the minority governments led by John Diefenbaker (1957–58, 1962–63), Joe Clark (1979–80), or Stephen Harper (2006–11), prime ministers gained legislative support and won confidence votes on an ad hoc basis.
But hung parliaments and minority governments can become controversial, leading to constitutional crises. If a first minister and his or her government lose the confidence of a majority of the members of the House of Commons or a legislative assembly, that first minister has lost the prerogative right to be first minister and to offer obligatory advice to the governor general or lieutenant governor on the exercise of executive power. In these circumstances, key executive power regarding the functioning of parliamentary institutions reverts to the hands of the vice-regal representative.
If a first minister, having just lost a confidence vote, expressly demands dissolution of the House of Commons or the legislative assembly and the calling of new elections, does the vice-regent have the right to say no to such “advice”? Or can and should the leader of Her Majesty’s Loyal Opposition be called upon to see if he or she can form a government capable of sustaining the confidence of the legislature? If a first minister and government have been recently defeated on a confidence motion, does the vice-regent have an obligation to see if another party leader can form a viable government, thereby enabling the current legislature to continue in existence? If so, does the governor general or a lieutenant governor have the right to appoint an opposition party leader to the rank of first minister even if that party leader has not won the most recent election? If a first minister has apparently lost the confidence of the legislature and is facing a pending vote of confidence to officially confirm this loss, does the first minister have the right to advise the prorogation of the legislature so as to pre-empt a vote of confidence? Does a governor general have the prerogative right to refuse such advice as being unconstitutional? If need be, do representatives of the Crown have the power to dismiss a democratically elected first minister in favour of another parliamentary leader?
Welcome to the complexities of the reserve powers of the Crown. While most minority governments do not lead to these types of problems and questions, some do, and these unique circumstances have defined how and why the reserve powers can and should be exercised. The sovereign and her vice-regents have the prerogative to exercise real political power in the resolution of these constitutional controversies. The exercise of these powers, though, is not arbitrary. They are rooted in constitutional principles deriving from the concept of responsible government and based upon a set of cases and precedents dating back over a century.
In special circumstances, the Crown is not obliged to follow advice. Take the federal election of 1896, when Conservative prime minister Charles Tupper was defeated by Wilfrid Laurier’s Liberal Party. Traditionally, a transition period follows the election. During this time, the outgoing first minister and cabinet clear out their offices, archive their files, and dismiss their personal and partisan advisers. Since the country or province can never be without a government, however, the defeated first minister is still head of government. A defeated first minister only ceases to be prime minister or premier when he or she tenders a resignation to the vice-regent on the day that the new first minister is sworn into office.
The transition period of 1896 was a controversial one. Although by convention the old government simply acts in a caretaker function, Prime Minister Tupper opted to conduct public affairs and patronage politics. During this interval, he approached Governor General John Hamilton-Gordon, Earl of Aberdeen, advising him to make a variety of appointments to the Senate and the courts. All the nominees were well-known Conservatives. To Tupper’s shock, Aberdeen refused this advice, deeming the request constitutionally improper in that the prime minister had just lost the election and no longer possessed the right to advise such appointments. Only the newly elected prime minister had the right to offer such advice to the governor general. Rebuffed in this manner, Tupper and his government promptly resigned, and Aberdeen then appointed Laurier as prime minister. Among Laurier’s first actions was advising the governor general to appoint a variety of Liberal Party supporters to the Senate and the courts — advice that Aberdeen accepted as obligatory.[2]
The key lesson here for future constitutional crises is that a vice-regent can refuse the advice of a first minister if the governor knows, or believes, that the first minister has lost the confidence of the parliamentary assembly. In such circumstances, the governor is free to exercise his or her own discretionary judgment with respect to the principles and practices of responsible government.
Following the federal election of 1925, the Liberal government of William Lyon Mackenzie King confronted a complex Parliament. The Conservatives led by Arthur Meighen had won the most seats with 116, while the incumbent Liberals had been reduced to 99. The Progressives (a farmer-labour party) had won 24, and a further 6 seats went to other representatives. In this 245-seat House of Commons, these results meant the continuation of a hung parliament dating back to 1921, but with the Conservatives now being the lead party, just 7 seats short of a majority.
In the days after this election, Mackenzie King, still the incumbent prime minister, contemplated tendering his resignation. He went to the governor general, Sir Julian Byng, Viscount of Vimy, to discuss matters. Byng suggested that the “dignified” course of action would be for King to resign, clearing the path for Meighen to become prime minister. After much consideration, King decided to remain in office and meet the new Parliament to see whether the new House of Commons would sustain his Liberal administration.
Parliament convened on January 7, 1926, with Governor General Byng reading the speech from the throne. The government’s policy agenda was socially reformist and progressive, and on January 15, the Progressives supported the throne speech. Prime Minister Mackenzie King then settled down to governing.
What we see here is a party coming second in an election creating a viable minority government with the support of a third place party. This outcome was, and is, perfectly constitutional in that the majority of the members of the House of Commons have the right to determine whether a government commands their confidence. If that majority is centred upon a combination of members representing second and third place parties, so be it.
Mackenzie King’s political fortunes soured, however, with the emergence of a corruption scandal in 1926. It was doubtful by that summer whether the Liberals could continue to count on the support of the Progressives. By late June, the Conservatives, after months of attacking the government for its unethical management of public monies, moved a motion of censure against the government. It appeared likely that most Progressives would vote along with the Conservatives, bringing down the King government.
Late on Friday, June 25, after four days of debate on the censure motion, the prime minister secured an adjournment on this vote until the following Monday. On Saturday, King went to Rideau Hall to speak with the governor general. The prime minister advised Byng to dissolve Parliament and order the calling of a new election. The governor general refused. Byng believed that just because Mackenzie King could not sustain a government did not mean that Arthur Meighen couldn’t. Byng mentioned that the Conservatives controlled the most seats in the House and that Meighen should be given his opportunity. The prime minister left this meeting without making any announcement of his plans. He brooded over the weekend, and then on Monday, June 28, King once again visited Rideau Hall. He again advised the dissolution of Parliament and the calling of an election. Once again, Byng refused, and at this point Mackenzie King resigned. Byng summoned Arthur Meighen to Rideau Hall, where he was appointed prime minister and charged with forming a government.
Meighen’s ill-fated government was short-lived. Although his Conservatives held the greatest number of seats in the House of Commons, he still required the support of the Progressives to sustain his ministry, and this he could not get. There were just too many political and policy differences between these two parties. After only four days in office, Meighen’s government lost a confidence motion, obliging the prime minister to see the governor general and advise the dissolution of Parliament and the calling of a new election. As it was now clear that no combination of parties in the current House of Commons could sustain a government, Byng accepted this advice and called for a new election in the fall of 1926. The Liberals won this contest, gaining a majority government.
The King–Byng Thing of 1926 has attracted enormous scholarly attention, and opinions are mixed regarding the appropriateness of the governor general’s actions. Byng has had his defenders; the greatest of these was one of Canada’s foremost constitutional scholars, Eugene Forsey.[3] Professor Forsey always argued that the governor general was not a “rubber stamp,” and that there are times when the representatives of the Crown are required to carefully assess the constitutional and political dynamics of a crisis situation prior to rendering an independent judgment. According to Forsey, Byng was fully within his rights to refuse King’s requests for dissolution on the grounds that the Parliament was fairly young, having been in existence for only eight months, and the possibility existed that a party leader other than Mackenzie King could command the confidence of the House of Commons.
More recent scholarship on these events has subjected Forsey’s defence of Byng’s action to searching criticism. These challenges, however, have not been on the basis of the governor general’s right to exercise independent discretionary judgment regarding a first minister’s command. Rather, they have focused on the quality of that discretionary judgment. Political scientists Frank MacKinnon and J.R. Mallory and law professors Peter Hogg and Patrick Monahan[4] all agree that Byng was fully within his rights to deny King his requested dissolution and that the governor general had the right to call upon Meighen to form a government on account of the principles outlined by Forsey. But to these analysts, Byng failed to fully appreciate the political situation that Meighen would be facing. As both Mallory and Hogg stress, Byng should have foreseen the exquisitely difficult situation Meighen would be placed in were he to become prime minister: he would be required to gain and maintain the support of the Progressive Party, long ideological foes of the Conservatives. Given this tension, Byng should have anticipated the problems that would engulf his newly appointed prime minister and not made the appointment. “It is clear,” writes Peter Hogg, “that Lord Byng’s failure to follow Prime Minister King’s advice was unwise, since a dissolution in fact turned out to be necessary.”[5]
In the Ontario provincial election of 1985, the Conservatives, led by Premier Frank Miller, won a minority government, eleven seats short of a majority. The premier announced that he would soon convene the newly elected legislature, with the lieutenant governor, John Black Aird, reading the Conservative’s throne speech. In the weeks leading up to the start of the new assembly, however, Liberal leader David Peterson and the leader of the NDP, Bob Rae, met to discuss whether their parties could reach agreement on sustaining a new government.
These discussions culminated in what became known as the Liberal–NDP Accord. This document established a formal legislative alliance between the two parties, committing them to vote down the Conservative government at the first opportunity and establish a Liberal minority government with a progressive legislative agenda. The accord also affirmed that the New Democrats would support the Liberal government on all votes of confidence in the legislative assembly for a period of two years, while the Liberals promised they would not seek a new general election during these same two years. Once signed and made public, a copy of this document was forwarded to the office of the lieutenant governor, informing him that once the Miller government was defeated, a new government was waiting to assume power. When confronted with the reality of the Liberal–NDP Accord, Miller publicly announced that a “reasonable conclusion” to this situation would be for him to ask for and receive the dissolution of the assembly and the holding of a new election, even though the previous election had occurred only about two months earlier.
Such thinking, of course, was completely at odds with the now standard interpretation of the reserve powers, set by the precedent of the King–Byng Thing of 1926. If the premier took exception to this logic, the lieutenant governor did not. Prior to the opening of the new assembly, Aird let it be known to all party leaders that if the Conservative government was defeated on its throne speech, he would not consent to the dissolution of the legislature. Rather, he would call upon the leader of the opposition to form a government.[6] And this scenario transpired on June 18, 1985.
This Ontario case reveals a number of constitutional truths respecting hung parliaments and minority governments. It is perfectly acceptable for a leader who led his or her party to a second place electoral result, as did David Peterson in 1985, to be called upon to become first minister if this party is the one that can gain sufficient support from a third party so as to have a working majority in the assembly. The key consideration in any hung parliament is not which leader has the most party members elected, but which leader is able to command the confidence of an overall majority of members of Parliament. If one party leader demonstrates his or her incapacity to command such confidence, the governor has the right, during the early life of the assembly, to determine if some other party leader can show such capacity. Once again, in navigating the twists and turns of minority governments, the representatives of the Crown are required to exercise keen political judgment.
The prorogation crisis of 2008 rivals the King–Byng Thing as a cause célèbre in the role of the Crown in dealing with hung parliaments. Not since 1926 has a single decision of a governor general come under such profound scrutiny and such intense criticism.
The basic contours of this crisis were outlined at the beginning of this chapter. It simply bears repeating here that Conservative prime minister Stephen Harper, leading a minority government not even two months old, faced the prospect of a combined parliamentary opposition ganging up on his government and voting it and him out of power through a non-confidence motion. A Liberal–NDP coalition government would then take the place of the Harper administration, with this government having the legislative support of the Bloc Québécois for a period of eighteen months. The agreement here had its antecedents in the Ontario Liberal–NDP Accord of 1985. All these details were not only made public on December 1, but were transmitted to Governor General Michaëlle Jean in a formal letter signed by all three opposition leaders.
The details of Prime Minister Harper’s quest to avoid the non-confidence vote have been narrated earlier. Here, we probe the merits and implications of Madame Jean’s decision. We know from media reports that the governor general and the prime minister discussed “Canada’s economic situation, the viability of an alternative coalition government and the mood of Parliament.” It was also reported, likely by someone close to the governor, that “Ms. Jean made clear to the Prime Minister that she was not a rubber stamp for his request to shut down Parliament until late January; that it was within her constitutional discretionary power to turn him down.” We learned that “halfway through the meeting, Mr. Harper and Mr. Lynch, Ottawa’s top civil servant, were left alone in the room while the Governor General and Ms. Cook [Madame Jean’s secretary] went to confer with special advisers Peter Hogg, former Osgoode Hall law dean and author of the definitive scholarly work on constitutional law in Canada,” and Peter Russell, professor emeritus of political science at the University of Toronto. Following this meeting within a meeting, Madame Jean returned to the prime minister and agreed to his request.[7]
Most constitutional experts argue that Governor General Jean came to the constitutionally and politically appropriate conclusion. Ned Franks, an expert on parliamentary procedure and a leading defender of the governor general’s decision, has highlighted the requirement for Madame Jean to exercise shrewd political judgment. To start, no prime minister had ever been denied a request for prorogation. But this fact alone could not have been determinative to the outcome of Madame Jean’s decision, or the meeting with the prime minister would not have lasted as long as it did. That they discussed the mood of Parliament and the viability of an alternative coalition government points to the heart of the governor general’s concerns. It is highly likely, in Franks’s assessment, that the prime minister would have questioned both the legitimacy and competency of the alternative Liberal–New Democrat coalition. He likely would have argued that both the Liberals and the NDP had lost the last election, that they had never campaigned on the idea of forming a coalition government, and that the proposed coalition was based on a rotten foundation: it would require the continued support of the Bloc Québécois. Rather than being confronted with a government-in-waiting should his government fall, the prime minister no doubt pointed out, the governor general was being presented, by Messieurs Dion and Layton, with a catastrophe waiting to happen — a federal government lacking political legitimacy, questioned and doubted by most Canadians, and needing the support of sovereignists to survive.
In light of these considerations, according to Franks, the prime minister’s request for prorogation was reasonable. It would allow for a cooling-off period — a time for less-heated heads to prevail while the Harper government prepared its budget. Following a brief seven-week period of prorogation, Parliament would reconvene in late January and would immediately be presented with a new budget, which would provide the House of Commons with the opportunity to decide whether it had confidence in the Conservative government. If the coalition could survive this brief period of prorogation, it could then vote down the government. If, however, it could not stay united, that would be proof of its inability to ever act as a viable government.[8]
In his appreciation of the governor general’s action, Franks also notes that she clearly had to assess an ugly political scenario. In the days leading up to his meeting with the governor general, Harper and his Conservative Party had vilified the idea of a Liberal–New Democratic coalition. They called it an “illegitimate” seizure of power, an undemocratic manoeuvre to make a weak and unpopular Stéphane Dion, the biggest loser of the most recent election, the prime minister, with his shaky coalition requiring the support of “separatists” to stay in power.
Given the prime minister’s combative approach to politics, Franks believes that had Madame Jean vetoed his request for prorogation, he would have refused to resign. Further, he likely would have stated to the media camped outside Rideau Hall that an unelected governor general appointed by the previous Liberal government had rejected his legitimate request for a short parliamentary time out, and he would have faced the House of Commons on the following Monday. At that point, when his government was defeated, he would have returned to Rideau Hall asking for dissolution of Parliament and a new general election to enable the people of Canada to decide who should form their government. When the governor general would have refused this request, fully consistent with the precedents of 1926 and 1985, Harper would have resigned, and Dion would have been called upon to form a government. The Conservatives would have continued to pillory this new government as weak, illegitimate, unconstitutional, a direct threat to the unity of the country, and an insult to Canadian democracy. And the governor general would be directly implicated in allowing this travesty of political justice to occur.
Peter Russell, one of Madame Jean’s advisers on the day in question, supports Franks’s assessment of the challenges facing Madame Jean. Russell has stated that the governor general was concerned about the likelihood of the Conservatives launching media attacks against the constitutional legitimacy of a Liberal–NDP coalition government, with her office also finding itself in the crosshairs had she refused Prime Minister Harper’s request. “Can you imagine,” Russell has said, “anyone sitting there thinking ‘If I say ‘no’ to this man we’ll just have a nice time and swear in Mr. Dion and life will go on?” To Russell, a vice-regal rebuff of the prime minister would have resulted in a massive negative advertising campaign launched by the Conservative Party of Canada, claiming that the new Dion–Layton government had come to power as a result of an “illegitimate transfer of power” supported by separatists and improperly sanctioned by the governor general.[9]
Peter Hogg, who was also in the antechamber with Madame Jean as she considered her options, has been unwavering in her defence. The governor general, he stresses, was called upon to exercise discretionary judgment, and she did so with great “soundness” of wisdom. Hogg suggests that the governor general was being asked to assess the political dynamics the country was facing, including the viability of the proposed Liberal–NDP coalition. Although Madame Jean “could hardly predict the disintegration of the coalition that occurred less than two months later … it was reasonable,” Hogg writes, “for her to conclude that the coalition was likely to be an unstable alternative government.”[10] Hogg also responded to his fellow advisers’ claims by downplaying Russell’s interpretation of the partisan concerns facing Madame Jean. “That issue of the Tory propaganda machine,” claims Hogg, “did not figure in anything that I am aware of. I do not know exactly what moved her but I don’t think that was one of the factors.”[11]
In defending the governor general’s ultimate decision to grant prorogation, Russell praised her ability to make a difficult political decision. “I think her reasons were that parliamentary democracy is going to be protected sufficiently to avoid a dangerous and dreadful crisis by giving an affirmative answer to the Prime Minister.” Russell was quick to assert that Madame Jean in no way succumbed to the pressure she was facing from a prime minister known for his bullying tactics. “She didn’t cave,” said Russell. “She made a tough, brave decision. There was no easy decision that day.”[12]
The merits of Madame Jean’s decision that day have not gone unchallenged. Her leading critic is political scientist and constitutional expert Andrew Heard, and his assessment is thought-provoking and disturbing. Heard’s starting point is that on December 1, 2008, the day the combined opposition parties announced their agreement to bring down the Conservative government, the ability of Prime Minister Harper to command the confidence of the House of Commons was severely called into question. A confidence vote was scheduled for December 8, and on that day the Harper government would be defeated and the new coalition government was prepared to assume national leadership. Given these facts, Heard argues that Harper’s request for prorogation was itself unconstitutional and that Madame Jean was wrong to grant prorogation.
From Heard’s perspective, the governor general only “has a duty to act on any constitutionally-valid advice, not any and all advice a prime minister might offer.”[13] Although the prime minister’s party had not yet lost a vote of confidence in the current House of Commons, the formal agreement of the opposition parties was a clear indication of that intent. As such, Stephen Harper had lost the right to offer commanding advice to the governor general. To make matters worse, when the prime minister met with Madame Jean on December 4, he was asking for a prorogation that would directly forestall the ability of the House of Commons to vote non-confidence in his government. If the role of Crown representatives in such periods of parliamentary crises is to enable democratically elected representatives to resolve their differences through parliamentary means, the constitutionally best course of action would have been for the governor general to deny Prime Minister Harper’s request for prorogation and to inform him that he had a vote with destiny on the eighth of December.
At this point, two main options would have presented themselves. Either Harper would have tendered his resignation immediately, leading to the governor general calling upon Stéphane Dion to become prime minister. Or Harper would have fought his demise all the way. The Conservatives would have objected to their defeat on the non-confidence motion and called the governor general’s actions a reckless betrayal of trust resulting in the government of Canada being turned over to a Liberal–Socialist coalition of losers. (There was also the possibility, as suggested by Kory Teneycke, Prime Minister Harper’s director of communications, that had Madame Jean refused his advice, the prime minister would have contacted Buckingham Palace and asked the Queen to dismiss the governor general and appoint a new one, hand-picked by the prime minister.)[14]
Either of these options leads to the conclusion that the governor general would have had to make a clear political assessment respecting the validity of the proposed Liberal–New Democratic coalition and its relationship to the Bloc Québécois. As with Franks and Russell, Heard accepts that in such circumstances the representative of the Crown is required to carefully investigate whether there is an alternative and viable government and prime minister capable of gaining and maintaining the confidence of the legislature for a significant period of time. If so, and if the most recent election has occurred within the past six to eight months, then the governor is fully within her or his rights to call upon the leader of the opposition to form a government. In these circumstances, the governor is not called upon to directly pass judgment on the ideological and policy quality of the new government but solely on its ability to work with another party or parties.
In this regard, Heard offers a provocative challenge to the governor general’s supporters. The key vice-regal consideration was whether there was a viable government-in-waiting capable of commanding the confidence of a majority of the members of the House of Commons should the Conservative government resign or be defeated. The assessment here has to be made as of December 4, 2008, the day of the prime minister’s audience with the governor general. Heard cautions us not to allow ex post facto understandings of events that happened after Madame Jean’s decision obscure the political reality the governor general faced on that day. Heard argues that Madame Jean was clearly presented with ample evidence that Stéphane Dion had the agreement of the New Democrats to form a workable coalition government with a set legislative agenda, and that this government would have the formal support of the Bloc Québécois on all matters of confidence for a period of eighteen months.
Heard also makes the intriguing proposition that had Madame Jean refused the prime minister’s request for prorogation, it is highly improbable that the consequent coalition government would have collapsed within weeks. Rather, the accession to power would have given the new government the status and legitimacy that comes from having authority. It would have been this Liberal–NDP government bringing in the 2009 stimulus budget to address the global recession, and it would have been this government setting the policy agenda, passing its social, economic, justice, and environmental legislation in Parliament, and making appointments to the public service and the courts. And, if the Liberals wished to change leaders in 2009 from Dion to Ignatieff (remember that Dion had promised to step down as Liberal leader just after the October 2008 election), then Michael Ignatieff would have assumed not only the leadership of the Liberal Party but also the title, prestige, and power of the prime ministership.[15]
The final point in Heard’s criticism of Madame Jean’s decision is that of the precedent it sets for future first ministers. In this case, a prime minister with a dubious claim on the confidence of the House of Commons asked for and received prorogation immediately prior to a confidence vote that he was bound to lose. The parliamentary suspension bought the prime minister time, not only to prepare a budget but also to demonize the proposed alternative coalition government by using media attack ads. The Conservative strategy worked; it will be carefully studied by any future first minister in a minority government situation confronting a similar parliamentary challenge to his or her hold on power. The precedent set here affirms that a first minister facing imminent defeat in the legislature can ask for and receive vice-regal support for the temporary suspension of that legislature, shutting down the one body that can effectively determine the fate of any government between elections, and thereby prevent the democratically elected representatives of the people from deciding whether the current government actually has the right to govern. “Without any substantial challenge to this precedent,” writes Heard, “future prime ministers can claim that they are entitled to suspend parliament at any time, for any reason. By this single action, the governor general has risked gutting Parliament’s ability to exercise its most important duty in a timely fashion.”[16]
Madame Jean’s prorogation decision in December 2008 was momentous. Not only was it decisive in resolving the immediate parliamentary crisis facing the country, but it also represented an exercise of the Crown’s reserve powers that will be taught in law schools and political science courses in this country and throughout the Commonwealth realms for decades to come. I suggest the governor general’s exercise of political discretion was seriously flawed. She accepted the questionable advice of a prime minister who had effectively lost the confidence of the House of Commons and who was seeking prorogation for the ultimate reason of avoiding a vote of non-confidence that he knew he would lose. And she failed to allow the existing House of Commons to establish a coalition government that a majority of its members wished to see come into being. Rather than avoiding interference in the process of democratic governance, Madame Jean’s actions did just that. More likely than not, as Russell suggests, she was fearful of the partisan attacks she would face if she said “no” to Stephen Harper. In contrast to Russell’s interpretation of her actions, I maintain the governor general conceded to a political bully, intimidated by the avalanche of tendentious and unfounded invective that would be hurled her way.
From this perspective, we witness a representative of the Crown being called upon to exercise the reserve powers and make an explicit political decision of historic consequences. Then we observe her rendering an unwise decision of questionable merit, setting a terrible precedent for the future. Nevertheless, the decision was hers to make, and it was discretionary. While the prime minister may be accused of offering unconstitutional advice to the governor general, and even leading her and her advisers to fear the partisan media attacks that would be coming their way if they refused him, Madame Jean was free to accept or reject this advice. She was also free to assess the political situation confronting her as she deemed fit; she was free to analyze the strengths and weaknesses of both the existing government and its prime minister in comparison to those of the proposed coalition and its leadership, to gauge the weight and influence of any past precedent to the current circumstances, and to assess the public reaction to her eventual decision. This freedom of action is the nature of a discretionary political decision, and once made by a representative of the Crown, the decision is lawful and constitutional. But it may still be considered unwise and impolitic.
The political scene in British Columbia is always interesting, and the provincial election in the spring of 2017 was no exception. After a hotly contested campaign pitting the incumbent Liberal Party led by Premier Christy Clark against the New Democrats championed by John Horgan, and the Greens under the leadership of Andrew Weaver, British Columbians went to the polls on May 9. Election night was a nail-biter. After long hours of counting, British Columbians awoke to the news that they were facing a hung legislature — the Liberals had won forty-three seats, the NDP forty-one, and the Greens three. With the legislature comprising a total of eighty-seven seats, a party needed to win forty-four seats to have a majority. After recounts confirmed the election night results Premier Clark announced that she would convene the new legislature in June, with its first order of business being the Liberal government’s throne speech.
Prior to the legislature meeting, however, John Horgan and Andrew Weaver announced on May 29 that the New Democrats and Greens had entered into an agreement whereby the Greens would support an NDP minority government on all confidence motions in return for New Democratic legislative support for progressive policies respecting the environment, social welfare, and election campaign finance reform[17] — shades of the Liberal–NDP Accord in Ontario in 1985. The die was cast.
The legislature convened on June 22 for the Speech from the Throne, and on the evening of June 29 the New Democrats and the Greens combined to declare non-confidence in the throne speech by a single vote. At this point Premier Clark recessed the legislature and went to visit Lieutenant Governor Judith Guichon at her official residence. The media was camped outside eagerly awaiting news. Would Christy Clark resign? Or would the lieutenant governor dissolve the legislature and call for new elections on the grounds that an NDP–Green working arrangement with a combined one-seat majority was simply too precarious to sustain a viable government?
The meeting between Premier Clark and Madame Guichon lasted for almost ninety minutes and Christy Clark has since confirmed to the media that she did advise the lieutenant governor to call new elections. “I did ask for the dissolution of the house,” she stated, stressing that she had warned the vice-regent about the likely inability of Mr. Horgan to form a viable and stable minority with the Greens based upon such a razor-thin legislative majority. Given that an NDP government would also have to appoint a speaker from their ranks, meaning that the combined NDP-Greens and the Liberals would be deadlocked on all legislative committees, and that every motion of confidence in the legislature would be decided by a single vote, there was real reason to wonder how sustainable an NDP government would be. “I told her that,” said Premier Clark, “and I talked to her about that and when it became clear that I needed to ask for dissolution, which she made very clear, that I had only two choices [to ask for dissolution or to resign], I did ask for dissolution.”[18]
At this point Madame Guichon declined to accept this advice. This action was taken presumably on the grounds that Premier Clark had lost the confidence of the British Columbian legislature and hence her commanding authority to offer binding advice; that this legislature should be given the opportunity to decide its own fate; and that Mr. Horgan and the NDP should be afforded the chance to see if they could form a viable government. So, Premier Clark resigned, the lieutenant governor called upon John Horgan to pay her a visit within minutes of the former premier leaving the official residence, and on the evening of June 29, 2017, Madame Guichon appointed Mr. Horgan as the thirty-sixth premier of British Columbia. Once again we see the very real powers held by vice-regents in circumstances with minority governments and questions of confidence, and where the decision must be made to call new elections or to give parliamentary bodies the chance to show they can fulfill their public duties.
We now enter a realm where, fortunately, the discussion of Crown power is much more hypothetical than real. We enter a realm where former prerogative powers remain but are seldom, if ever, exercised, because the functioning of responsible government and modern liberal democratic parliamentary politics offer no reason for these powers to be used. We now look at the Crown, in the words of Eugene Forsey, as “the guardian of the Constitution.”[19]
Another of the Crown’s reserve powers is the granting of royal assent to legislation. This authority is held by the sovereign or her vice-regents, and it cannot be delegated to, or be presumed to lie within, the power of a first minister. But can a representative of the Crown ever refuse to give royal assent to a bill? The granting of royal assent to legislation is now considered a mere formality. Most British constitutional experts assert that the granting of royal assent in Britain is obligatory. Even as early as 1867, Walter Bagehot, using dark humour that probably did not amuse Victoria, wrote “the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her.”[20]
The understanding of royal assent in Canada has always been more nuanced. The Constitution Act, 1867, gives the governor general and the lieutenant governors the power to reserve and disallow legislation, with the exercise of these powers subject to the advice of first ministers. Canadian political history offers various examples of governors using these powers. This practice, however, has faded in Canadian political life, first at the federal level in the 1880s and then within the provinces during the early decades of the twentieth century. Now, as in Britain, it is considered virtually unthinkable that the representative of the Crown would ever contemplate refusing to give royal assent to any piece of legislation presented to her or him for approval — virtually unthinkable, but not absolutely unthinkable.
Highly unusual circumstances could arise in which the representatives of the Crown would be justified in taking action at their own discretion. If a government has passed legislation that is inherently unconstitutional and a blatant attack on the democratic principles and practices of responsible government, such as abolishing the opposition or abolishing elections, the sovereign and her governors would have every right to refuse royal assent to such legislation — and would likely be applauded by the public for doing so.[21] Such hypothetical examples sound far-fetched, highlighting how well-entrenched democratic principles and practices are in these countries. Nevertheless, these hypotheticals do reveal an enduring Crown prerogative.
A similar reserve power is the right to dismiss a first minister and government, just as the sovereign and her vice-regents have the prerogative to appoint them. The Crown power of dismissal is one that is rarely exercised. In Britain, the sovereign has not dismissed a government since 1783, and in Canada no federal prime minister has ever been dismissed. Two premiers and their governments, however, were dismissed by their lieutenant governors, with these cases occurring in Quebec in 1891 and British Columbia in 1903. In both instances, the vice-regent acted following public investigations that revealed the existence of widespread corruption and illegal behaviour within these governments.[22]
The rarity of first ministerial dismissal in this country, however, does not mean that the Crown power to dismiss a prime minister and his or her government does not exist. Just because a Crown prerogative is rarely, if ever, used does not mean that it could never be used. The closest Canada ever came to a vice-regal dismissal of a federal government was in 1982. Governor General Edward Schreyer publicized that he had seriously contemplated dismissing the Liberal government of Pierre Trudeau. Schreyer stated that he was very concerned about the constitutional propriety of the federal government moving to unilaterally amend the constitution and patriate it from Britain despite opposition from eight of the ten provincial governments. He asserted that if Trudeau and most of the provincial premiers had failed to come to an agreement on constitutional reform at a final first ministers conference scheduled to discuss constitutional reform in November 1981, and if the Trudeau government had persisted in seeking to amend the constitution over provincial objection, he would have dismissed the prime minister. Immediately following this, he would have called upon the leader of the opposition, Joe Clark, to form a government on the express stipulation that he would immediately seek the dissolution of Parliament and the calling of a new election. If “there was an absolute absence of willingness [by the Trudeau government] to discuss anything any further,” said the governor general, “the only way out … would have been to cause an election to be held and the Canadian people asked to decide.”[23] As events transpired, that November meeting resulted in an agreement between the Trudeau Liberal government and nine out of ten provinces on amendment and patriation, with Quebec the lone holdout.
The exercise of the prerogative power of dismissal of a first minister is rare for the simple reason that most governments and parliaments seldom find themselves in situations where the issue of dismissal rises to the fore of Crown thinking. For all the talk of political conflict and partisan disagreement in Canada and other Commonwealth countries, most governments and parliaments in these lands function in constitutionally correct fashions such that the integrity and continued viability of governments is seldom, if ever, called into question. We are very fortunate that our political history leads to this conclusion, because the types of circumstances that could justify exercising the power of dismissal are dire and troubling, suggestive of a breakdown in good governance and the tradition of democratic political behaviour.
British and Canadian constitutional authorities agree that in certain very extraordinary and highly unlikely circumstances, the sovereign and her vice-regents retain the right of dismissal if its exercise would be necessary for the defence of the democratic constitutional order. If a first minister has just lost an election, with a single opposition party winning a majority of seats in the new parliamentary assembly, and that first minister refused to resign, the Crown would be justified in dismissing this rebellious leader and calling upon the first minister–elect to form a government. Likewise, in the above case, if the losing first minister refused to resign but rather advised the Crown to dissolve the newly elected parliamentary assembly and call a new election, the sovereign or her vice-regent would be justified in dismissing this renegade and transferring legitimate power to the first minister–elect. Likewise, if a first minister were to lose a vote of confidence in the assembly and refuse to either resign or recommend the dissolution of the assembly and the holding of new elections, the Crown would be, once again, within her or his rights to dismiss the rogue first minister and call upon the leader of the opposition to form a government. In all of these instances, the key operating principle is constant.
In Canada, all the Crown reserve powers that we have looked at so far are exercised by the governor general or lieutenant governors acting in the name of the sovereign, with this delegation of royal authority sanctioned by the Letters Patent Act, 1947. One prerogative power, however, remains in the hands of the Queen to this day. Just as the sovereign has the legal right to appoint the governor general, so too does she have the right to dismiss this official prior to the conclusion of his or her usual five-year term of office.
No Canadian governor general actually has ever been dismissed, though advisers to Prime Minister Harper contemplated the possibility during the prorogation crisis of 2008. It has happened, however, on rare occasions in other Commonwealth countries: Ireland in 1932, Saint Christopher and Nevis in 1969, and Saint Lucia in 1982. In these instances, the prime minister of each country advised the sovereign to dismiss the vice-regent, and in each case the king or queen followed such prime ministerial advice.
While the principles of responsible government strongly direct the sovereign to exercise the power of the governor’s dismissal subject to the advice of the responsible prime minister and his or her government, this practice does not mean that the Queen loses all discretion in dealing with complex cases. Just as a vice-regent may be called upon to exercise independent judgment in dealing with the possible dismissal of a first minister, so too does the sovereign retain the independent right to exercise her or his own sense of prudence and wisdom in determining whether or not to assent to a prime ministerial request for the removal of a governor.
Suppose Governor General Schreyer’s nightmare scenario had come true, and Prime Minister Trudeau had felt compelled to proceed with the unilateral amendment and patriation of the constitution. And suppose the governor general had warned the prime minister that he was violating the spirit of the constitution and would be dismissed if he continued with his plans. What if Trudeau had then contacted Buckingham Palace and advised the Queen to dismiss the governor general prior to the governor general dismissing him? And what if, at the same time, the governor general notified the Queen that he was prepared to dismiss the prime minister for breaching the constitution? Would the Queen be obligated to immediately follow the advice of the prime minister, or could she uphold the decision of the governor general? In such a complex but potentially real-life case, the Queen would have the discretion to make her own judgment call, assessing the merits of the arguments presented by both sides while seeking to find the best way to promote constitutional and responsible government.
Similarly, what if Prime Minister Harper had advised the Queen to dismiss Governor General Jean solely because she had refused his request for prorogation on December 4, 2008? Would the Queen be required to follow the advice of a prime minister whose own ability to command the confidence of the House of Commons was in doubt? The answer is no. The sovereign would be in the position to bring her own judgment to bear on how best to resolve the crisis. In thinking about these types of “what if” scenarios, Andrew Heard reminds us that the Queen is only obligated to act upon constitutionally proper advice. “The Queen might be justified in refusing advice to remove a governor general,” Heard notes, “if the dismissal were an attempt to overturn a decision taken with all constitutional propriety by the Governor, such as refusing a dissolution.”[24] These scenarios portray a simple yet profound reality. Although rarely needed or used, the sovereign retains a final prerogative power to control the fate of his or her governors general in the Commonwealth realms.
The reserve powers of the Crown, deriving from a pedigree dating back over a millennium, continue to exist, regularly exercised by governors general and lieutenant governors and only eliciting much public notice on rare occasions. But when they do make news, they make big news. They highlight periods of constitutional crises when the vice-regent, and perhaps even the monarch, may be called upon to make a political decision of enormous importance. Such is the ultimate job description of the head of state and her or his vice-regents, suggesting the high level of political, constitutional, and historical knowledge that these officials should possess if they are to be worthy of the trust they hold. The independent exercise of such powers, however, is thankfully infrequent, highlighting the ability of Canadian parliamentary democracy to function well most of the time. The general purpose of the sovereign and her Canadian governors general and lieutenant governors is to play the role of the head of state, to be the ceremonial leader of the country, and to serve as symbols of national and provincial unity, while promoting Canadian nationalism, culture, heritage, social and economic achievements, the ethos of public service, and philanthropy. But do the reserve powers and these ceremonial roles provide a sufficient basis for the continuation of the monarchy in this country? In this modern day and age, does the monarchy deserve to continue?