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Home , Stephen Harper

!e Turmoil Surrounding the Prorogation of Canada’s 40th Parliament & Kenneth Munro*

#e prorogation of the $rst session of Can- #e $rst is the exercise of the governor gener- ada’s fortieth Parliament awakened Canadians al’s prerogative powers; the second is our par- to the intricacies of their political system and it liamentary system of responsible government. brought the Canadian Crown to the fore of our #e governor general represents the Queen and history once more. Acceding to her Prime Min- exercises all of her powers derived from statute ister’s advice on that cold, dreary, snow-covered and common law2 within our federal sphere morning of 4 December 2008, the Governor of jurisdiction. Parliament has conferred wide General, Michaëlle Jean, sparked the interest of powers on our Crown to administer and to leg- Canadians in their monarchical institutions. A islate. Since these are delegated powers, they docile and politically bored population refused are subject to change by Parliament.3 But the in large numbers to cast their ballots in a general governor general also exercises prerogative and election in October. Less than two months later, reserve powers in her capacity as the Queen’s the prorogation of the $rst session of their new representative. Prerogative powers are those Parliament sparked a new-$red enthusiasm for upon which she must seek advice, while reserve politics, and throughout the country Canadians powers are those she can exercise alone, without became constitutional experts overnight. #ey advice. Some of the governor general’s preroga- voiced their opinions on talk shows, at work and tive powers have been restricted in Canada by at leisure, in bars and over formal dinners, sud- statute or by order-in-council. Order-in-coun- denly manifesting astonishing skill at discuss- cil P.C. 3374, given royal assent on 25 October ing the strengths and weaknesses of their sys- 1935, enhanced the powers of the prime min- tem of government with particular emphasis on ster vis-à-vis his cabinet colleagues and gover- the Maple Crown. Many based their opinions nor general. Among other things, this order-in- about the Crown on whether or not they liked council provided that only the prime minister the Prime Minister. Only a handful focused on could recommend dissolution and convocation the essential issue of the prorogation: was Prime of Parliament. As said, this Minister Stephen Harper abusing the preroga- order-in-council changed, in e%ect, the prime tive and reserve powers of the Crown for parti- minister’s role from one of primus inter pares san political advantage? #is issue was raised by ($rst among equals) to one of primus sine pari- David Smith over a decade ago in his book !e bus ($rst without equals).4 Invisible Crown1 and it remains an unresolved question for constitutional observers today. #e actions of Stephen Harper in Decem- ber bring to the fore a pressing concern with In discussing the question of prorogation, respect to the Monarchy in Canada: preventing two aspects of our constitution come into play. the prime minister and premiers from abusing

Constitutional Forum constitutionnel !" the Crown’s reserve powers. When granted to was not overwhelming support for the coalition Canada in 1848, responsible government im- and because the coalition partners required the plied that the governor general “would act on support of a regionally based party to govern, the advice of his ministers under normal cir- there was concern it would not hold together. cumstances.”5 Under the 1935 order-in-council, the prime minister has assumed far more power Faced with this reality, the Governor Gen- since only he or she can o%er the governor gen- eral had little choice in the matter. Barbara eral advice on a myriad of issues. Normally, the Messamore has made this point with utmost governor general must act solely on the advice clarity: “Only in the most extraordinary cir- of his or her Canadian $rst minister. At the cumstances would the governor-general be same time, one of the key roles of the governor warranted in refusing the advice of the prime 6 general is to safeguard the constitution. One of minister.” As Messamore indicated, Stephen the dilemmas faced by the governor general is Harper was entitled to buy time “to see if he can to resolve any con'ict between her duty to act garner su(cient support and to test the abil- on the advice of her prime minister and her ity of the coalition to maintain the allegiance 7 duty to safeguard the constitution. A danger of enough Liberal, NDP and Bloc members.” to our monarchical system and to our unwrit- Under our constitution, the governor general ten or conventional constitution arises when a must accept the advice of the prime minister in prime minister advises the governor general to such matters. If she were to refuse Harper’s re- use the royal prerogative for partisan political quest for a prorogation, the Governor General advantage. Last December, did the Governor would have had to $nd another prime minister General adequately resolve the requirement to to take responsibility for her actions. Observing accept her Prime Minister’s advice on the one public opinion which appeared divided, she was hand, and the need to protect the constitution evidently not about to trust the reliability of the on the other? proposed coalition supported by the Bloc as an alternative to the existing Harper government. #e Governor General received her Prime In addition, her advisors undoubtedly remind- Minister at Government House when it ap- ed her of precedents. peared that he would face certain defeat in the House of Commons on 8 December 2008. At Early in the post-Confederation period, this two-hour meeting, Stephen Harper asked such a precedent occurred. Less than a year a)er for, and was granted, a prorogation of the $rst the October 1872 general election, Prime Min- session of the fortieth Parliament, despite the ister John A. Macdonald asked Governor Gen- fact she had just opened it on 19 November. Be- eral Lord Du%erin for prorogation in the midst fore the visit of her Prime Minister, Michaëlle of the Paci$c Scandal. #e Liberals revealed Jean had received a memo, signed by all op- that both Macdonald and Cartier had received position members, which proposed a coalition campaign funds for that election from Sir Hugh between the and New Allan, president of the Canada Paci$c Compa- Democratic Party (NDP) supported by the Bloc ny. He hoped to secure the charter to build the Québécois. #e Governor General faced a di- transcontinental railway through these bribes. lemma: her Prime Minister wanted to prorogue Fearing loss on a non-con$dence vote, Macdon- the session of Parliament which had just begun ald asked Du%erin to prorogue the session of and which was very likely to see the government Parliament rather than allow a vote on adjourn- fall on a vote of non-con$dence, and the oppo- ment. Some Conservatives signed a memoran- sition parties claimed they could provide her dum pledging their support for a Liberal minis- with a new prime minister to carry on the af- try under Alexander Mackenzie. Du%erin faced fairs of state, a necessity if she were to reject the similar gratuitous advice as did Michaëlle Jean advice of her Prime Minister. On the one hand, in December: warnings about dangers to the the Prime Minister appeared to many to be constitution if the Governor General were to ac- abusing the royal prerogative for political gain; cept the advice of the Prime Minister. A)er ag- on the other hand, polls indicated that there onizing re'ection, Du%erin granted Macdonald

!& Volume 18, Number 1, 2009 prorogation. In the end, Parliament reconvened reserve power of the Crown for partisan advan- in October and Macdonald, faced with certain tage. #roughout our history, and particularly defeat on a non-con$dence vote, resigned.8 Al- in recent times, there are disquieting signs that though Stephen Harper has not been accused of the reserve powers of the Crown can be used by any wrongdoing, the 1873 request by Macdon- power-lusting prime ministers and premiers for ald is similar to Harper’s: the Governor General their own partisan advantage. Consequently, can only refuse prime ministerial advice on the the governor general and lieutenant governors rarest of occasions. must be very wary and wise in using the roy- al prerogative to protect the constitution. #is Besides this precedent from the nineteenth undertaking is not easy under our system of century, Michaëlle Jean’s advisors undoubtedly responsible government in Canada, but in this also reminded her of the 1926 constitutional instance, our Governor General walked the crisis. In that year, the Governor General, Lord constitutional tightrope well in accepting her Byng, denied the request of his Liberal prime Prime Minister’s advice while protecting the minister, William Lyon Mackenzie King, to dis- constitution at the same time. solve Parliament so that he could avoid a mo- tion of non-con$dence in the House and call an election. Mackenzie King had made the request Notes because the Liberals, caught up in a customs * Ken Munro, Department of History and Classics, department scandal, faced certain defeat. Un- University of . der our system of responsible government, the 1 David E. Smith, !e Invisible Crown: !e First prime minister has the right to make such a re- Principle of Canadian Government (: quest. Controversy quickly erupted, however, Press, 1995) at 57. when the Governor General, using the reserve 2 James R. Mallory, !e Structure of Canadian powers of the Crown, refused King’s request Government, revised ed. (Toronto: Gage Educa- since an election had occurred just nine months tional Publishing Company, 1984) at 34. previously, and the Conservatives under Arthur 3 Ibid. Meighen held more seats in the House of Com- 4 John G. Diefenbaker, One Canada: Memoirs of John G. Diefenbaker, !e mons than King’s Liberals. Mackenzie King re- Years of Achievement 1957-1962 (Toronto: Mac- signed without advising the Governor General millan of Canada, 1976) at 50. on the choice of a successor. Fortunately for 5 Barbara J. Messamore, Canada’s Governors the Governor General, Meighen agreed to be- General, 1847-1878: Biography and Constitutional come prime minister based on written support Evolution (Toronto: University of Toronto Press, from Progressives in the House of Commons, 2006) at 25. and thus took responsibility for the Governor 6 Barbara J. Messamore, “Prorgation, then and General’s actions. King won the subsequent now” (8 December 2008) A11. election, calling into question the Governor 7 Ibid. General’s disregard of his advice. Indeed, the 8 Donald Creighton, John A. Macdonald: the old e%ect of the “King-Byng” a%air on Canadians’ Chie"ain (Toronto: Macmillan, 1965) at 178. perception of the legitimacy of the reserve pow- ers of the Crown remains with us. Whether Harper goes down to defeat a)er a new session begins on 26 January 2009 or remains as leader of the government, members of the House of Commons will decide and not the Governor General. #is is the preferable outcome to this political hiccup. In my view, it is a mistake for a prime min- ister to place a governor general in a position which invites controversy over the use of the

Constitutional Forum constitutionnel !*