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Educating Canadians on the Crown – a Diamond Jubilee Challenge

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Educating Canadians on the Crown – A Diamond Jubilee Challenge Peter H. Russell, Professor Emeritus of Political Science, University of Toronto The Canadian monarchical story is a colourful and fascinating part of Canada’s heritage, and should be much better known. My hat is off to people like Garry Toffoli and Arthur Bousfield at the Royal Heritage Trust for being sturdy and indefatigable custodians of that history, and writers like John Fraser1 for bringing that history alive and making it accessible to the Canadian public. Important as the work of these historians of the Canadian Crown is, it does not address the knowledge gap about the Crown that has the most serious practical consequences for the operation of parliamentary democracy in Canada. That gap is the Crown’s constitutional role in Canada’s parliamentary system of government. The great majority of Canadians have scarcely a clue about this function of the Crown. As Nathan Tidridge’s contribution to this conference shows,2 the text-books used in high school civics courses, teach young Canadians that the representatives of the Crown in Canada are nothing more than figureheads. They fail to explain that though the Crown no longer rules, those vested with its authority continue to hold powers that can play a vital reserve role in the operation of our parliamentary system of government. The purpose of that role today, far from being to interfere with parliamentary democracy, is to secure parliamentary government from being changed into a system of prime ministerial government. Let me explain. THE CROWN’S CONSTITUTIONAL ROLE IN PARLIAMENTARY DEMOCRACY Canadians generally know that the Queen and her representatives from time to time turn up in parliament to perform some ceremonial duty – in particular reading the speech from the throne at the opening of parliament. When the Queen, the Governor General or a Lieutenant Governor intone the dreary, cheery banalities of the throne speech, the public fully realize they are reciting the ideas of the politicians who head up their governments. Some members of the public also know that before a bill that has been passed by the provincial legislature, or by both houses of the federal parliament, becomes law it must receive royal assent, and they expect that assent to be given automatically. But what the public generally knows little about is that the Crown exercises powers that are vital to the life and death of parliament. It is the Crown that summons, prorogues and dissolves parliament. Although, in the vast majority of cases, the Queen and those exercising her powers in Canada perform these functions on the advice of ministers who 2 command the confidence of the elected house of parliament, there are occasions when they must be guided by their own independent judgment. This right – nay, this duty – of the Crown to exercise independent judgment in performing a function of crucial importance to parliamentary democracy falls under the category of reserve powers of the Crown. In the democratic age in which we like to think we live, generally speaking it won’t do to have a person who is unelected – and even worse – who inherited her office, perform any function of government that is substantively important. That is why in order to survive into the age of democracy, the British monarch acquiesced in exercising nearly all of the powers formally vested by law in the Crown only on the advice of ministers accountable to a democratically elected legislature. Monarchs in other parliamentary countries survived by making the same accommodation with democracy. But in the United Kingdom and in other countries that adopted the Westminster model of parliamentary democracy, a small reserve of real power and responsibility remains in the hands of the Crown. It is most essential for the public to understand why this residue of discretionary royal power remains, and the principles that should govern its exercise. DUALITY AT THE TOP OF PARLIAMENTARY STATES The crucial point for the citizens of a parliamentary state to understand is that the head of government cannot also be the head of state. The reason for this is that in a parliamentary state it is the parliament that decides who will be prime minister and head up the government. Most of the time elections make it clear which party’s leaders have majority support in the parliament the people have elected. But there may be occasions when it is not clear, and when such a situation arises, someone other than the incumbent prime minister must decide who should be asked to form a government. In a constitutional monarchy, it is the monarch or a vice-regal official acting with her authority who as head of state, may have to exercise independent judgment in deciding who should be invited to be prime minister in those relatively rare situations where it is not clear who has the support of a majority in the elected chamber of Parliament. Why shouldn’t it be up to the incumbent prime minister to decide whether or not he should remain prime minister after an election? That was precisely what one of Prime Minister Harper’s advisors, Tom Flanagan, argued should be the case in a real democracy.3 Flanagan advanced this argument in January 2009 after the prorogation of parliament had saved the Harper government from losing a vote of no confidence. It was Flanagan’s contention that if that non confidence motion had carried against the government, Prime Minister Harper would have had the right to demand that the Governor General dissolve parliament and have an election – even though less than three months had elapsed since the last election and there was strong evidence that the Leader of the Opposition could form a coalition government that would have majority support in the House of Commons. 3 Flanagan argued that Canada has moved beyond “the antiquated machinery of responsible government from the pre-democratic age.” In the democratic age the choice of who should lead the government should be made directly by the people rather than indirectly by parliament. Flanagan did not stipulate whether the people’s choice should be determined by whose party gets the most votes or the most seats in the House of Commons. But in either case, Canada’s parliamentary democracy should now be one in which the people directly elect their government. Flanagan contended that popular direct election of the prime minister was appropriate – indeed was required – by a “Canada changed from a constitutional monarchy to a constitutional democracy.” A group of constitutional scholars (of which the author was one) published a rebuttal of Flanagan, arguing the case for the Crown’s reserve power, in certain circumstances, to refuse a prime minister’s request for a dissolution.4 Although the scholars argued their case well, I don’t think it cut much ice with the general public, in particular the majority of Canadians who, according to survey data, believe that the prime minister of Canada is directly elected. 5 What the public do not understand is why direct election of the head of government will not work well in a parliamentary system of government. The problem – and indeed the educational challenge - is that they do not understand or recognize how parliamentary government differs from the American presidential/congressional government whose politics many Canadians follow as closely as their own. In the United States system, there is no duality at the top. The president is directly elected by the people and is both the head of state and head of government. In parliamentary systems, the people elect a parliament which in turn determines who will head the government. The head of government is not the head of state. The head of state’s role is to ensure that government is directed by members of parliament who command the confidence of the parliament the people have created. If people can grasp this fundamental difference between parliamentary government and presidential/congressional government, I think they can understand the difficulty in following the Flanagan formula of having the people directly determine who should be prime minister. If the leader of the party that gets the most votes or most House of Commons seats (whichever Professor Flanagan prefers) automatically becomes prime minister and remains prime minister until the electorate gives another party leader a plurality of votes or seats, it may be very difficult for government to function. If the prime minister does not have a majority in the House of Commons, the government may soon lose a confidence vote in which case it would call another election which might produce much the same result as the ensuing election. A system in which only the prime minister can call an election and only the electorate can determine who is prime minister could produce a steady diet of elections which as Eugene Forsey pointed out years ago would be the death of democracy. 6 Canada could of course abandon parliamentary government and adopt the American presidential/congressional system. That would require a huge constitutional change for 4 which there seems little support in Canada, and it is not what Professor Flanagan is proposing. He wants a parliamentary system with a directly elected prime minister. The only country I know of that has this arrangement is Israel where the prime minister is elected in an election separate from the one that elects the parliament or Knesset. The prime minister must lead the government even if opposition parties are in a majority in the Knesset. Such a system would be a very hard sell in Canada. I should add that Israel as a parliamentary system has duality at the top.
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