The Governor General's Decision to Prorogue Parliament
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AndrewAndrew HHeardeard
Centreentre forfor Constitutionalonstitutional Studiestudies CCentre d’études constitutionnelles Th e Governor General’s Decision to Prorogue Parliament Heard
PPointsoints ofof View/PointsView/Points ddee vuevue NNo.o. 7 PPointsoints ooff VView/Pointsiew/Points ddee vvueue iiss aann ooccasionalccasional paperpaper sserieseries ppublishedublished bbyy tthehe CCentreentre fforor CConstitutionalonstitutional SStudiestudies atat thethe UniversityUniversity ooff AAlberta.lberta. Th e seriesseries isis designeddesigned toto publish,publish, inin a timelytimely mmanner,anner, ddiscussioniscussion ppapersapers ooff ccurrenturrent constitutionalconstitutional iinterestnterest ttoo bbothoth CCanadiananadian aandnd iinternationalnternational aaudiences.udiences. Th e CentreCentre forfor ConstitutionalConstitutional StudiesStudies waswas establishedestablished toto facilitatefacilitate andand encourageencourage iinterdisciplinarynterdisciplinary rresearchesearch aandnd publicationpublication ofof issuesissues ofof constitutionalconstitutional concern.concern. Th e CentreCentre isis hhousedoused iinn tthehe FFacultyaculty ooff LLawaw atat thethe UniversityUniversity ooff AAlberta.lberta. Th e CCentreentre gratefullygratefully aacknowledgescknowledges thethe fundingfunding supportsupport ofof thethe AAlbertalberta LLawaw FFoundation.oundation. PPointsoints ooff VView/Pointsiew/Points ddee vvueue eestst uunene ssérieérie dd’articles’articles ppubliésubliés ooccasionnellementccasionnellement parpar llee CCentreentre dd’études’études cconstitutionnellesonstitutionnelles ddee ll’Université’Université ddee ll’Alberta.’Alberta. AAuu ffaitait ddee ll’actualité,’actualité, eellelle ssertert à ddiffiff useruser promptementpromptement lleses documentsdocuments dede travailtravail parmiparmi lleses llecteursecteurs ccanadiensanadiens etet éétrangers.trangers. SSituéitué à lala facultéfaculté dede droitdroit dede l’Universitél’Université ddee ll’Alberta,’Alberta, llee CCentreentre d’étudesd’études constitutionnellesconstitutionnelles a étéété ffondéondé pourpour faciliterfaciliter etet ppromouvoirromouvoir llaa rrechercheecherche interdisplinaireinterdisplinaire eett llaa ppublicationublication ddee ttextesextes consacrésconsacrés aauxux questionsquestions constitutionnelles.constitutionnelles. LLaa CCentreentre bbénéfiénéfi ciecie dudu généreuxgénéreux soutiensoutien fi nanciernancier dede l’Albertal’Alberta LLawaw FFoundation.oundation.
AAuthor:uthor: DDr.r. AndrewAndrew HeardHeard isis anan AssociateAssociate PProfessorrofessor iinn tthehe DDepartmentepartment ooff PPoliticalolitical SSciencecience aatt SSimonimon FFraserraser UUniversity.niversity. HHisis ppublicationsublications oonn cconstitutionalonstitutional cconventionsonventions iincludenclude tthehe bbookook CCanadiananadian ConstitutionalConstitutional CConventions:onventions: Th e MarriageMarriage ofof LLawaw aandnd PPoliticsolitics, Toronto:Toronto: OOxfordxford UniversityUniversity PPress,ress, 11991991 ((2nd2nd eeditiondition iinn progress)progress) aandnd sseveraleveral aarticles:rticles: ““JustJust WWhathat iiss a VVoteote ooff CConfionfi dence?dence? Th e CuriousCurious CaseCase ooff MMayay 110,0, 22005”005” ((2007)2007) CCanadiananadian JJournalournal ooff PPoliticalolitical SSciencecience 3395;95; ““ConstitutionalConstitutional CConventionsonventions aandnd PParliament”arliament” ((2005)2005) 28:228:2 CanadianCanadian PParliamentaryarliamentary RRevieweview 7;7; “Constitutional“Constitutional CConventionsonventions andand EElectionlection CCampaigns”ampaigns” ((1995)1995) 18:318:3 CanadianCanadian ParliamentaryParliamentary ReviewReview 8;8; “Recognizing“Recognizing thethe VarietyVariety AAmongmong ConstitutionalConstitutional CConventions”onventions” (1989)(1989) CCanadiananadian JJournalournal ooff PPoliticalolitical SSciencecience 663.3. Th e aauthor’suthor’s vviewsiews dodo notnot necessarilynecessarily reflrefl ectect thosethose ooff tthehe MManagementanagement BBoardoard aandnd sstafftaff ofof thethe CCentreentre forfor CConstitutionalonstitutional Studies.Studies.
CCentreentre forfor CConstitutionalonstitutional SStudiestudies / CCentreentre dd’études’études cconstitutionnellesonstitutionnelles 4448D48D LLawaw CCentreentre UUniversityniversity ooff AAlbertalberta EEdmonton,dmonton, AlbertaAlberta TT6G6G 22H5H5 CCANADAANADA PPhone:hone: (780)(780) 492-5681492-5681 FFax:ax: ((780)780) 4492-995992-9959 [email protected]@law.ualberta.ca wwww.law.ualberta.ca/centres/ccsww.law.ualberta.ca/centres/ccs
© CCentreentre forfor ConstitutionalConstitutional SStudiestudies 22009009
IISBN:SBN: 978-0-9811751-0-2978-0-9811751-0-2
i Th e Governor General’s Decision to Prorogue Parliament Heard
I. INTRODUCTION in national politics, the right of the prime minister to lead the political system, and the We are fortunate that real crises are few powers of the governor general were all pitted and far between in Canadian politics. We against each other and called into question at have a fundamentally stable system of gov- some point. With such a potent concoction, ernment, and most political leaders both un- it is little wonder that matters boiled over. derstand and play by the rules most of the Th is study will try to unravel the main issues time. As a result, it is something of a shock involved and explain the constitutional rules when a real crisis erupts and fundamental which apply. diff erences unfold over basic constitutional rules. Canada’s parliamentary system has For some, the Governor General did the been under increasing strain for several years, right thing in acting on the Prime Minister’s but matters came to a head in late 2008. advice to prorogue Parliament. She correct- While Governor General Michaëlle Jean’s ly ensured that there would be a cooling off controversial decision to grant Prime Min- period before a new confi dence vote is held, ister Stephen Harper’s request to prorogue and she prevented hasty actions by opposi- Parliament was the high point of this crisis, tion parties to hijack Parliament and install there is so much more about this episode that themselves in cabinet, when the Conserva- needs to be understood. And it is crucial for tive Party of Canada had been empowered us to really understand this aff air because the by the last election to form the government. ramifi cations of the 2008 crisis are profound For others, however, the Governor General and enduring. One reason the events erupted inappropriately suspended Parliament and so quickly into a crisis is that they dealt with set a dangerous precedent for the future. the unwritten rules of the constitution, which Now prime ministers can avoid defeat on im- are seldom discussed in depth even at the best pending confi dence votes simply by prorogu- of times and, as a result, are subject to mis- ing Parliament, only to return months later interpretation and misrepresentation in times when they feel they have the situation under of confl ict. Th e tension was compounded by better control. Th e result is a severe blow to the unprecedented nature of much of what the principle of responsible government and transpired. Without clear and easy parallels Parliament’s ability to decide which party or to similar crises in the past, the public and parties has its confi dence as the government their advisors in the media were left confused of the day. Such widely divergent views at- as to what was or was not the proper course test to strongly held beliefs on each side that of action. Nevertheless, there were clear con- abuses of power were being perpetrated by stitutional principles at play that would have the other. been able to give better direction to the Gov- A clear review of the events as they un- ernor General and the Prime Minister if they folded is useful to refresh our memories about had been heeded. what exactly transpired and in what order. An examination of the 2008 crisis is need- Th is review is provided in Part II. Th en, the ed both to put events into perspective and to relevant constitutional rules will be reviewed. discern lessons for the future. Although the In order to better analyze the relevant consti- events were relatively simple, their context tutional rules and the outcome of the 2008 touched on deep and confl icting aspects of constitutional crisis, a fuller understanding our constitution. Th e meaning of elections, is needed of the nature of election outcomes, the role of Parliament in deciding who gov- the essence of parliamentary democracy, the erns, the legitimacy of Québec separatists signifi cance of the principle of responsible
Points of View / Points de vue No. 7 1 Th e Governor General’s Decision to Prorogue Parliament Heard government, and of how governments are eral Party leader Stéphane Dion announced formed. Th ese matters are examined in Part within days of the election that he would re- III. In Part IV, the analysis turns to the role sign as leader, but would stay in offi ce until a of the governor general in a Parliamentary leadership convention to be held in May 2009 system, and continues, in Part V, with an as- produced a replacement. Harper remained sessment of Governor General Jean’s decision as Prime Minister, and there was no serious to prorogue Parliament. Th e concluding Part discussion that he should do otherwise. He VI summarizes the constitutional principles advised the Governor General to summon which justify the argument that the Gover- Parliament to meet on November 17. Because nor General had a duty to refuse the Prime the Governor General was on an offi cial tour Minister’s advice to prorogue Parliament. of Eastern Europe at the time, Chief Justice Beverly McLachlin of the Supreme Court II. A CHRONOLOGY of Canada, in her capacity as Deputy of the Th e order of events that unfolded is clear, Governor General, read the speech from the but the signifi cance attached to them might throne on November 18. Th e government’s be debated. Th e 2008 election was held on motion in reply to the speech from the throne October 14 and resulted in no one party was debated over the course of the next few gaining control of the House of Commons. days. Th e Liberals successfully sponsored an Th e Conservative Party won more seats than amendment that was adopted on November any of the other parties, 143 of a possible 308, 25, which read: on the strength of almost 38 percent of the and we urge Your Excellency’s advisors vote. Th is represented a gain of nineteen seats to respect the results of the election in which more than 60 percent of voters and 1.3 percent of the vote, despite a drop supported Members of Parliament in the of over 165,000 votes from 2006, because opposition; overall turnout was lower. Th e Conservatives to bear in mind that people express their were twelve votes short of the 155 needed wishes as much through the opposition for a majority in the Commons. Th e Liberal as through the government; Party of Canada fi nished second with sev- to recognize that Canadians rightfully enty-seven seats and 26 percent of the vote. expect the House of Commons they Th is was a loss of twenty-six seats and 4 per- just elected to function in a less parti- centage points in the vote for the Liberals, as san, more constructive and collaborative well as an absolute loss of over 850,000 votes. manner, with the fi rst responsibility for Th e Bloc Québécois lost two seats and a half setting a better tone being that of the gov- ernment which requires the government percentage of the national vote total, ending to be more forthcoming than it has been up with forty-nine seats and 10 percent of up to now; and the vote. Th e New Democratic Party (NDP) to that end, given the crucial nature of the gained eight seats and just under a percentage up-coming economic and fi scal update, point of the vote to fi nish with thirty-seven to provide representatives of opposition seats and just over 18 percent of the vote.1 Th e parties with a detailed briefi ng by appro- Liberals were widely viewed as the losers in priate senior offi cials at least three hours this election, as they won their smallest share in advance of the public presentation of the update, so all Members of Parliament of the national vote since Confederation. Lib- can be properly equipped to deal with the serious economic diffi culties confronting Canadians.2
2 House of Commons Journals, 40th Parl. 1st sess.,
Points of View / Points de vue No. 7 2 Th e Governor General’s Decision to Prorogue Parliament Heard
Th is amendment was not considered to be Th at, in light of the Conservatives’ fail- a test of confi dence and debate on the main ure to recognize the seriousness of Can- ada’s economic situation, and its failure government motion continued. On the after- in particular to present any credible plan noon of Th ursday, November 27, Minister of to stimulate the Canadian economy and Finance Jim Flaherty presented an economic to help workers and businesses in hard- statement to the House of Commons. Th is pressed sectors such as manufacturing, statement was immediately condemned by the automotive industry and forestry, this the leaders of all three of the opposition par- House has lost confi dence in this govern- ment, and is of the opinion that a viable ties, who together announced that they would alternative government can be formed vote against the measures contained in the within the present House of Commons.3 economic statement. Two principle concerns were the lack of a stimulus plan to address Th us, the stage was set for the apparent the unfolding global economic problems, and defeat of the government on December 1. It the plan to eliminate the quarterly fi nancial is noteworthy that Dion’s proposed motion subsidies that political parties receive (based not only stated that the House had lost con- on the number of votes each received in the fi dence in the government, but that a viable previous election). Immediately following alternative government could be formed. the speeches on the economic statement, the Th e government had begun to look for House voted on the fi nal motion in reply to room for compromise on Friday, November the speech from the throne, which served as 28, when it mentioned that the controversial the fi rst substantive test of confi dence in the proposal to eliminate party subsidies would government since Parliament resumed after not be a part of the ways and means motion the October general election; this motion the following Monday, December 1. Th is gave passed on a voice vote. some hope that the opposition might vote for Th e government announced that the fol- the ways and mean motion to allow proposed lowing Monday, December 1 would be al- changes to the Registered Retirement Sav- lotted as an opposition day, and that a “ways ings Plan to proceed. However, the opposi- and means” vote would be held to formally tion parties all responded with statements proceed with measures contained in the eco- that they would still vote no confi dence in the nomic statement. Th is set the stage for two government, principally because it had failed confi dence motions to be voted on that Mon- to provide an economic stimulus package; the day. Harper indicated that the ways and mean door was open, however, to vote in favour of motion was a confi dence measure; this is nor- the ways and means motion, while also sup- mally the case since voting against it would porting Dion’s confi dence motion. In the face prevent the introduction of key fi nancial leg- of this concerted opposition stand, Harper islation. Because it was the fi rst day allotted announced the next day, Saturday, November to the opposition, the Liberal Party would 29, that the allotted opposition day and the also be able to set the agenda and propose ways and means vote would not be held on motions to be voted on that day. Dion tabled Monday as originally planned, but would be a motion that would have been an explicit test postponed until the following Monday, De- of confi dence in the government: 3 House of Commons Order Paper and Notice Paper, No. 06 (25 Nov 2008) at 38, online: Parliament 40th Parl. 1st sess., No. 10 (1 Dec 2008) at of Canada
Points of View / Points de vue No. 7 3 Th e Governor General’s Decision to Prorogue Parliament Heard
cember 8. Th e government is able to do this, coalition on several fronts. First, various even when in a minority position, because it spokespersons referred to the opposition try- alone controls the order paper and can re- ing to steal the government and overturn the schedule most votes almost at will.4 results of the October election. Th e opposi- tion leaders were said to have denied the pos- Late on Sunday, November 30, opposi- sibility of a coalition during the election cam- tion parties confi rmed with various media paign; thus, they could only legitimately form outlets that they had reached a formal agree- a coalition government if they went back to ment to form a coalition government to re- the people in a fresh election and campaigned place the Conservative Party. Th e following on that promise. Th e rhetoric got quite in- day, Monday, December 1, the leaders of fl ammatory, with such statements as Conser- the Liberals, NDP, and the Bloc Québécois vative Member of Parliament Patrick Brown held a joint news conference to announce the referring to “this coup d’état, this non-elec- agreements, which they signed, to create a co- tion, this takeover of democracy.”6 Second, an alition government composed of Liberal and emotional attack was made on the role of the NDP cabinet ministers; this coalition cabinet Bloc Québécois. Th e proposed coalition was agreement would initially last two years but said to endanger the country, since it was to could be extended. Th e Bloc agreed to sup- be propped up by a group of separatists dedi- port this coalition cabinet in all confi dence cated to breaking it up. Both messages of this votes for an eighteen-month period, which public relations campaign appeared to reso- 5 could be lengthened. Th ese agreements were nate among many in the public, particularly then approved by the three party caucuses. in the West. Dion would be the prime minister of this government, but he would step aside and be Th e Governor General, meanwhile, was replaced by whoever won the Liberal leader- still out of the country on her tour of Eastern ship convention in May 2009. Europe. Dion and NDP leader Jack Layton both wrote to her on Monday, December 1 to Th e government responded with a public convey their intention to vote no confi dence relations campaign attacking the proposed in the government and to form a coalition government with the support of the Bloc.7 4 Th e prime constraint is that a certain number Although she received no advice from the of opposition days have to be held with a Prime Minister to do so, the Governor Gen- particular calendar period and prior to certain eral decided to cut short her trip and return fi nancial votes. Th e government can choose to Ottawa on Wednesday, December 3, and on which specifi c days those events take place. arranged to meet with the Prime Minister Curiously, this gives the government the power to choose the timing of many votes of the next day. On that Wednesday evening, confi dence, which it can do to its advantage. 5 For details of the Liberal-NDP coalition agreement, see “An Accord on a Cooperative 6 House of Commons Debates, No. 010 (1 Government to Address the Present Economic December 2008) at 438 (Mr Patrick Brown), Crisis,” online: Liberal Party of Canada online: Parliament of Canada
Points of View / Points de vue No. 7 4 Th e Governor General’s Decision to Prorogue Parliament Heard the Prime Minister and the three opposition But this is an erroneous assumption since the party leaders each made televised speeches to delivery of the speech is a completely separate the nation. Th e next day, the three opposition event from any votes related to the budget. leaders sent essentially identical petitions to Th e government is in complete control of the the Governor General, signed by 161 opposi- timing of votes on both the budget and the tion MPs from the Liberal, NDP, and Bloc new speech from the throne. Th ere can be, Québécois caucuses, accompanied by a cover- in fact, no assurance of when the government ing letter from Dion. In this letter Jean was would actually face a confi dence vote in the informed of their intent to vote in favour of new session. Dion’s no confi dence motion, then scheduled Th e fundamental question to emerge from to be dealt with on the following Monday, these events concerns the Governor General’s December 8; the motion also supported an decision to prorogue Parliament. Did she de- alternative government and was reproduced fend or endanger parliamentary democracy in the petition.8 Harper met with Jean on the morning of Th ursday, December 4 for over by suspending Parliament? A proper answer two hours. During this meeting, he advised to this question requires a fuller understand- her to prorogue Parliament and to set its re- ing of the constitutional rules involved, as call for January 26, 2009. She agreed to his well as of the nature of parliamentary democ- request and signed the proclamation, ending racy itself. the fi rst session of the fortieth Parliament. III. THE CONSTITUTION Harper then announced to the press that he AND PARLIAMENTARY would schedule a full budget to be presented on January 27. Many believed that the post- GOVERNMENT poned question of confi dence would be set- Unfortunately, the law of the constitu- tled by the budget speech set for January 27. tion is of little help here. Canada’s founda- tional constitutional document, the Consti- tution Act, 1867, was deliberately skeletal. It 8 All three petitions and the covering letter was simply assumed that the most important are available from the Liberal Party website: “Opposition Parties Deliver Petitions to aspects of Canada’s new political institutions Governor General,” online: Liberal Party of would unquestionably function along the Canada
Points of View / Points de vue No. 7 5 Th e Governor General’s Decision to Prorogue Parliament Heard the Queen’s name to direct the whole system Elections and parliamentary government of government. He or she can hire and fi re ministers in the privy council at will, appoint Canada’s long experience with majority senators and judges, and refuse to sign into governments at both the provincial and na- law any bill passed by the two houses of Par- tional levels during the twentieth century has liament for any reason. Th e governor gener- created some political beliefs that fi t majority al’s consent is also required for Parliament to government situations, but obscure the reality consider major money bills. Canada’s found- of the parliamentary system. In common par- ers were so sure of the British parliamentary lance one party “wins” an election and thus system that there was no need to spell it out has the right to govern. Th is is eff ectively the in law. In this respect, our legal framework case when one party wins a majority of seats is similar to Britain’s. In both countries, the in the legislature. However, this is a misper- monarchic legal framework is transformed ception of parliamentary government, and into a real democracy through unwritten rules it is compounded by many who erroneously called constitutional conventions. suppose that we actually vote directly for a prime minister. An Ipsos poll conducted in Constitutional conventions are vital to December 2008 for the Dominion Institute the Canadian constitution, as they are to the found 51 percent of Canadians believe this British and other Commonwealth constitu- to be true.9 Th e prevalence of majority gov- tions. Conventions are informal rules that ernments at the provincial level has no doubt ensure the constitution operates in some way fuelled and reinforced this perception. In Al- other than the bare letter of the law provides. berta, for example, one party or another has In Canada’s case, conventions transform the won a majority of seats in the legislature in ev- monarchic legal framework into a modern ery one of the twenty-seven general elections parliamentary democracy. Conventions arise held since the province was created in 1905. in order to protect basic principles of the In Alberta, every election has meant in a very constitution, and it is the need to give life to practical sense that the people have directly these principles that creates the obligation to chosen their premier and government. Such a obey conventions. Two of the most important record, however, obscures a fundamental fact constitutional conventions dictate that the of all parliamentary governments based on government must maintain the confi dence of the British model: the people elect legislatures the elected members of Parliament, and that not governments. Th is fact becomes visible the governor general must act on any con- and relevant when no party wins a majority stitutionally valid advice given by the prime of seats in the legislature. To appreciate this minister and cabinet. Th ese conventions pro- we need to understand the nature of national tect the principles of responsible government elections. Th e national election held in Octo- and democracy respectively. Th e 2008 con- ber 2008 was “national” only in the sense that stitutional crisis brought these two conven- 308 local elections were held simultaneously tions to the forefront. Th ese conventions and across the country. While we have a national other relevant constitutional principles will campaign, there is actually no national elec- be examined in greater detail when we come to examine the Governor General’s decision to prorogue Parliament. But fi rst we need to 9 Th e Dominion Institute, “In Wake of Constitutional Crisis, Dominion Institute understand the connection between national Survey Demonstrates that Canadians Lack elections, the formation of governments, and Basic Understanding of our Country’s the role of Parliament. Parliamentary System,” online:
Points of View / Points de vue No. 7 6 Th e Governor General’s Decision to Prorogue Parliament Heard tion. Votes are only counted in each local con- people expressed in the election favours al- stituency and the count eff ects the outcome lowing another party to form a government. only in that riding. Only a tiny fraction of the Th us, Paul Martin announced he would re- electorate is able to vote directly for or against sign as prime minister after the January 2006 the leader of a political party. In the 2008 election; Pierre Trudeau did the same thing federal election, only 53,000 citizens in Cal- after the 1979 election. In those circum- gary Southwest voted directly for or against stances, the governor general calls upon the Stephen Harper, while only 44,000 voters in leader of the opposition party with the most Montreal’s Saint Lambert riding voted for or seats to form a government. It is important against Stéphane Dion. No one in the whole to note, however, that whether the incumbent country got to choose between the two party remains in offi ce or a new prime minister is leaders. Th e vast majority of Canadian voters appointed, the government only has a right can only choose among the individual local to meet Parliament and try to win its confi - candidates representing the political parties dence. It is a common perception, but a false in their own riding. Th e political party with one nonetheless, that the government meet- the right to govern the country after a general ing the new Parliament has somehow “won” election is the party (or parties) which can the election and therefore has a democratic win — and maintain — the confi dence of right to continue governing. Th e right to gov- those 308 newly elected members of Parlia- ern in a parliamentary system can only come ment (MPs). When one party wins a majority from having met and won the confi dence of of seats, as the Liberals did most recently in a majority of the elected members of Parlia- 2000, then it is a foregone conclusion that the ment. If the government (new or old) meets party has the right to govern; with its major- Parliament and fails to win its confi dence af- ity of MPs, that party will undoubtedly win ter an election, it must resign and allow an- the confi dence of the House of Commons and other party the opportunity to form a govern- the government will be sustained by it for the ment. Without the confi dence of the House foreseeable future. However, when no party of Commons, the prime minister and cabinet wins a majority of seats, as was the case in the have no right to govern at all. 2004, 2006, and 2008 federal elections, then the situation is quite diff erent. And it is vital Even some academics fail to appreciate to understand those circumstances in order to that elections in a parliamentary system are appreciate how unfounded can be the misper- only one step in the democratic process of se- ception of our parliamentary democracy. lecting a government. Which party has the right to govern after an election is ultimately When no one party wins a majority of determined by the new members of the House seats in the House of Commons, the current of Commons. Th ey are the freshly elected prime minister has a right to remain in offi ce representatives of the citizens of Canada, and to meet Parliament. Th is right is actually a it is their judgment that determines who has very limited one, as it is only a right to meet a legitimate right to govern. Th is is the most Parliament and not a carte blanche to carry basic and defi ning feature of parliamentary on governing into the future. Th e incumbent government. prime minister simply has a right to see if his or her party can win the confi dence of a ma- Principle of responsible government jority of the newly elected members of Parlia- After an election, the fi rst opportunity ment. Th e incumbent does also have another for the House of Commons to express its option: to decide that his or her party has suf- confi dence in the government comes with fered a moral defeat and that the mood of the
Points of View / Points de vue No. 7 7 Th e Governor General’s Decision to Prorogue Parliament Heard the speech from the throne. On the fi rst or often bears little relation to the number of second day after Parliament reconvenes, the seats they win in the House. Th is situation governor general reads a speech to a joint ses- arises because in each of the 308 elections, a sion of the House of Commons and Senate, candidate only has to win one vote more than which has been prepared by the government any other competitor in order to be declared as a broad overview of the policies it intends elected; votes cast for losing candidates may be to pursue. Over the course of the next week a part of the total votes a party receives across or two, the members of the House of Com- the nation, but they cannot contribute to that mons then debate this speech and vote on a party’s share of the seats in the House. Be- motion in reply to the speech, which is in- cause we have a competitive multiparty system troduced by the government. Th is motion is in national politics, most winning candidates usually the very fi rst test of confi dence for win without actually getting a majority of the the government because it signifi es whether votes in their local constituency contest. In the members of the House of Commons are the 2008 elections, only 115 of the 308 win- pleased with its policy plans. If this motion ning candidates were supported by a majority is defeated or amended in ways that clearly of the voters casting ballots. Th e lowest level express a lack of support for the government, of support for a winning candidate was 29.2 then it is said to have lost the confi dence of percent of the vote for a Bloc Québécois can- the House. Th is is a logical outcome because didate; the next lowest was 32.2 percent for a rejection of the government’s general policy a Conservative candidate in Ontario.10 With plans can only mean that the House lacks fi ve major parties competing and winning confi dence in it. If the motion in reply to the seats in the 2008 election, it is little wonder speech from the throne passes unscathed or that no one party won the support of a major- is altered with amendments acceptable to the ity of Canadians. Th e Conservatives won the government, then the prime minister and largest share of the vote nationally with 38 cabinet have won their fi rst major test and percent, but the eff ects of the electoral system have a right to continue governing until the translated this into 46 percent of the seats in next test of confi dence. the House of Commons. Th e previous two elections also returned minority Parliaments, Th e need for an incumbent or new gov- with the Liberals winning 43 percent of the ernment to meet the newly elected members seats based on 37 percent of the vote in 2004, of Parliament and to win their confi dence is and the Conservatives winning 40 percent not simply an archaic or pedantic tradition. of the seats with 36 percent of the votes in It goes to the very heart of representative de- 2006.11 Th e rule that the government needs mocracy and the principle of majority rule. to win the support of a majority of newly Th is rule is the bedrock of democracy, and elected members of Parliament appears very it provides the bridge between elections and sensible in this light. Fundamental democrat- the parliamentary institutions through which ic legitimacy comes from ensuring that a gov- we are governed. With Canada’s modern party system and the single member plural- ity electoral system, the wishes of individual 10 Elections Canada, “Report of Candidates Who voters are only imperfectly translated into the Received the Most Votes on Election Night,” online in Excel format:
Points of View / Points de vue No. 7 8 Th e Governor General’s Decision to Prorogue Parliament Heard ernment can only pass laws that are approved in over 200 years through impeachment, al- by a majority of our elected representatives. though Richard Nixon resigned in 1974 prior It would be fundamentally antidemocratic to to an almost certain impeachment. In Can- simply let the largest party rule the country ada, fi ve governments have fallen since 1926 as it wished, despite the fact that it won nei- because they lost the confi dence of the House ther a majority of votes in the general election of Commons; these defeats seem amply justi- nor a majority of seats in the Commons. Th e fi ed since only one of those fi ve governments group that gets to form the government must managed to win the ensuing elections.12 be able to command the support of the ma- jority of our elected representatives. Just which party should form the govern- ment after an election, and how that gov- Th e necessity to win the confi dence of the ernment should be formed, depends entirely elected members of Parliament does not stop upon the circumstances of the election, the with the fi rst vote of confi dence after an elec- share of the seats won by each party, and the tion. In a parliamentary system the govern- relationships among the parties. Th e current ment must continue to maintain that confi - prime minister, the opposition leaders, and dence throughout the life of the legislature. the governor general all play a role at times Parliamentary government is defi ned by this in the process of government formation. To principle of responsible government, and the assess the controversy generated by the po- government is continuously responsible to the tential Liberal-NDP coalition, we need to elected members of the legislature. One dis- fi rst consider structures of party government tinct advantage of the parliamentary system and their relationship to the choice of prime is that governments must continue to justify minister to form a government. and account for their actions to their elected legislatures in order to maintain the support Principles of government formation of the people’s elected representatives. If at Th e complexity of the choice of party or any time the government loses a clear vote parties to form a government varies tremen- of confi dence, it must either resign to allow dously according to whether or not there is a a new government to be formed or call fresh party with a majority of seats in the elected elections. legislature. It also varies according to the re- Th is feature of parliamentary government lationships among the parties if there is no is in stark contrast to the U.S. presidential majority. As mentioned earlier, the situation system, where the president and his cabinet is clear and straightforward when one party do not need to have the approval of Congress wins a majority of seats because the leader of to exercise executive authority. Presidents that party must be allowed to form the gov- are essentially safe in offi ce for the duration ernment. If another party was in power at the of their four-year term; they can be removed time of the election, then the incumbent prime from offi ce only if they are impeached for minister must resign. On the other hand, if having committed a serious crime. U.S. pres- no party wins a majority of seats, then sev- idents cannot be removed from offi ce within that four-year period no matter how serious 12 Th ese parliamentary defeats were suff ered by are their lapses in judgment, how poor or op- the governments of Arthur Meighan in 1926, pressive are their policy proposals, or how im- John Diefenbaker in 1963, Pierre Trudeau moral or off ensive is their behaviour, so long in 1974, Joe Clark in 1979, and Paul Martin as they do not commit a serious crime. No in 2005; Pierre Trudeau is the only prime minister to be re-elected after losing a vote of U.S. president has been removed from offi ce confi dence.
Points of View / Points de vue No. 7 9 Th e Governor General’s Decision to Prorogue Parliament Heard eral diff erent options are available. A minor- been rare in Canada, they are the norm in ity government can be formed in which only most parliamentary democracies around the one party fi lls all the seats in cabinet; this is world. In countries with proportional repre- the most usual option followed in Canadian sentation electoral systems, it is extremely rare federal and provincial politics. Th e minority for one party to win a majority of the votes government may be able to rely on an alliance because modern democracies usually entail with a particular opposition party, and thus a competitive multiparty system that refl ects depend on its support at confi dence votes and the diversity of the population. As a result, it for other votes on the government’s major is normal for parties to enter into coalitions pieces of legislation. For example, the Liber- with each other in order to form a govern- als and the Progressive Conservatives have ment with a legislative majority. Coalition essentially propped up each other up in three formation varies from one country to anoth- minority governments in Nova Scotia since er, with potential partners sometimes stat- 1998. Th is type of support is usually arranged ing their preferences about who they would informally, but might also be explicitly set or would not support during elections, and at down in a written agreement. For instance, other times leaving their potential interparty the Liberal minority government that took bargaining until after an election. power in Ontario in 1985 was supported by a written agreement with the NDP. Th is agree- Considerable research and academic de- ment provided NDP support for the govern- bate has been expended on which of these ment for two years, in exchange for specifi c models of government is likely to produce a policy commitments. A minority government more stable or effi cient government. Intuitive- may also be lucky enough that one of the op- ly, one can suggest that a majority government position parties with enough seats to combine is more likely to be stable and effi cient than a with another opposition party to form a ma- minority or coalition government. Th anks to jority has internal problems that ensure it will party discipline, a majority cabinet should be not bring down the government for a period able to get its agenda passed through the leg- of time. Stephen Harper’s 2006-08 govern- islature effi ciently and survive in offi ce, either ment, for example, was able to rely on Liberal until fresh elections are required or until the Party support during most of this time be- prime minister judges fresh elections would cause the Liberals were primarily concerned probably return the cabinet to power with a with their leadership race, and subsequently fresh majority. Indeed, Canadian experience hobbled by the fi nancial and factional scars shows that minority governments seldom last left by that race. Alternatively, a minority longer than two years, while majority govern- government might try to play diff erent op- ments tend to last about four years. However, position parties off against each other and the experience with minority and coalition negotiate support on a case by case basis with governments in other western democracies diff erent parties; this was the strategy fol- reveals a much more complex picture. A great lowed by Lester Pearson from 1963 to 1968, many factors infl uence the duration of a gov- during two minority Parliaments in which he ernment; these factors will vary from time to only needed a handful of opposition votes to time and from one country to another. Italy reach a majority, although the NDP was the is often caricatured as the prime example of most frequent supporter. A third option is the the instability of coalition cabinets, with over formation of a true coalition government in sixty governments formed since the Second which more than one party has seats in the World War. However, other countries with cabinet. Although coalition cabinets have coalition governments show incredible sta- bility. Th e European country with the lon-
Points of View / Points de vue No. 7 10 Th e Governor General’s Decision to Prorogue Parliament Heard
gest surviving governments is Luxembourg, certainty for the government. which has had coalition governments ever since the Second World War; its governments Which party gets to form the govern- have lasted signifi cantly longer, on average, ment after an election where no party wins than those in Britain, even though major- a majority is another fundamental question, ity governments are the norm in the United but fortunately there are fairly clear answers Kingdom.13 Germany is another example of in such a case. Th e decision rests initially with a very stable political system despite having the incumbent prime minister. As noted ear- coalition governments for most of the post- lier, the current prime minister has a choice war period. between remaining in offi ce to try to win the confi dence of the House of Commons or re- Canadians have been generally sceptical signing in favour of the leader of the largest of coalition governments, perhaps because opposition party. Some commentators have they have been so rare, and have preferred suggested that the prime minister should re- minority governments when no party has sign if his or her party does not win the most won a majority. Although one has to go as seats in an election. Th ere is only one instance far back as the First World War to fi nd the in Canadian federal politics of a prime minis- most recent coalition cabinet at the federal ter remaining in offi ce when the ruling party level, there have been several at the provincial did not fi nish fi rst; William Lyon Mackenzie level. Saskatchewan had a coalition cabinet King stayed in offi ce after the 1925 election for three years starting in 1999, as did Brit- reduced the Liberal Party from majority sta- ish Columbia between 1941 and 1952, while tus to second place. In principle, however, it Manitoba was ruled by coalition govern- seems better not to accept this pattern as an ments in the 1930s and 40s. Th ere have been automatic rule. It is entirely possible for an in- many more minority governments at both the cumbent government with the second highest federal and provincial levels. Half of the fed- number of seats to still be able to command eral elections held since 1957 have resulted in a majority with the support of other parties, minority governments. Even when Canadi- as was the case for Mackenzie King. Particu- ans anticipate minority governments, they do larly if there is publicly expressed, third-party not tend to favour formal alliances between support for the incumbent government, it ruling and opposition parties. An Ekos poll appears senseless to insist that another party conducted just before the October 2008 elec- should be appointed to power simply because tion found only 30 percent of Canadians sup- it got the most seats; no new prime minister ported a formal agreement among parties, should be appointed to power when there is while the vast majority preferred a minority no practical likelihood that he or she could government to negotiate with diff erent par- command a majority in the newly elected ties on an issue by issue basis.14 Th is distrust House of Commons. of a formal agreement to support a minority government is somewhat curious, since an IV. THE ROLE OF THE agreement should permit greater stability and GOVERNOR GENERAL Th e governor general usually has only a 13 Paul Warwick, Government Survival in limited role to play in the formation of a gov- Parliamentary Democracies (New York: ernment after an election. If the ruling party Cambridge University Press, 1994) at 6. wins a majority, there is no change for the 14 Ekos, “Canadian Attitudes to Coalition,” governor general to make. If another party online:
Points of View / Points de vue No. 7 11 Th e Governor General’s Decision to Prorogue Parliament Heard prime minister will resign and the governor reality this advice is really a series of instruc- general simply appoints the leader of the new tions that the governor general is bound to act majority party. If no party wins a majority, upon. On rare occasions, however, the gover- then the governor general essentially takes nor general may have to exercise the reserve her cue from the current prime minister. powers, or personal prerogatives, of the offi ce. Th ere is nothing for her to do if the prime In exercising these reserve powers, the gover- minister wishes to meet Parliament. Only nor general is empowered to make her own if the current prime minister resigns would decisions and exercise the powers according the governor general have to consider whom to her own discretion, rather than acting on to appoint as a replacement. In most situa- the advice of cabinet ministers. Th e governor tions the choice is quite clear: the leader of general has the power to dismiss the prime the largest opposition party. Nevertheless, minister and appoint a new one. She also may we have to be mindful of the unforeseen in order the dissolution of Parliament and fresh politics. It is possible that the ruling party elections to be held. In addition, the governor might be reduced to third or even last place, general may refuse to act on the advice of the as happened to the Progressive Conserva- prime minister and cabinet, particularly if the tive Party in 1993, or two opposition parties prime minister calls for an election to be held might have the same number of seats, with within a few months of a previous one. each claiming the right to form the govern- ment. In such scenarios, the governor general Th ese reserve powers are the practical may have to consult with all the party leaders reason why the role of head of state (Queen or to fi nd out which party would have the best governor general) is separated from the head chance of winning a parliamentary majority. of government (prime minister) in all parlia- One would hope that the party leaders could mentary systems. Th e offi ce of governor gen- engage in these negotiations themselves and eral (and lieutenant governor at the provin- present the governor general with a propos- cial level) exists in order to ensure the proper al for a government backed by a majority of functioning of parliamentary government. In members of Parliament. It is vital to reiterate some ways, the head of state acts like a referee here, however, that whether it is the incum- to ensure the political actors play according to bent prime minister or a newly appointed one, the rules, so that the business of government the government still has to meet Parliament can continue. and win its confi dence before it has a right to At the most basic level, the governor gen- continue governing. Th e ultimate hurdle for eral’s job is to ensure that there is a prime min- a government, and the ultimate source of its ister and cabinet to run the aff airs of state, as legitimacy in a parliamentary democracy, lies well as a functioning Parliament to pass laws in it winning the confi dence of the House of and hold the government responsible for its Commons. actions. For some scholars, this is the extent Th e governor general has a potentially of the governor general’s powers. Henri Brun, much more diffi cult role to play once a gov- for example, believes that the governor general ernment meets Parliament and runs into should only act to defend the country against trouble. It is in this circumstance that the a veritable coup d’état when a prime minister 2008 crisis erupted. Normally, the governor refuses to resign after clearly being defeated general simply provides formal ratifi cation in an election where another party wins a for the decisions made by the prime minis- majority, or in a clear vote of confi dence in ter and cabinet. Technically, the government only “advises” the governor general, but in
Points of View / Points de vue No. 7 12 Th e Governor General’s Decision to Prorogue Parliament Heard
Parliament.15 Patrick Monahan believes that serve powers may be legitimately exercised, the courts can and should deal with uncon- particularly if the prime minister advises stitutional actions, while the normal politi- some unconstitutional course of action that cal processes, including the government’s ac- cannot be prevented or remedied by court ac- countability to Parliament or to the people at tion. In this view, the reserve powers should election time, are adequate to deal with other not be categorically limited, since they may alleged abuses of power.16 It is important to be needed to deal with quite unforeseen de- note, however, that the law of the constitution velopments; fl exibility is the best protection is virtually silent on the basic functioning of against future, unknown crises. Th ere is con- parliamentary democracy, and is thus beyond troversy about what the limits are on the gov- the powers of the courts to regulate; the only ernor general’s personal prerogative powers, formal provisions of the constitution relevant and this controversy is exacerbated by the fact to parliamentary democracy relate to the right that the principle of responsible government to vote, the necessity to hold a session of Par- and the governor general’s reserve powers are liament once a year, and an election every fi ve largely matters of constitutional convention, years.17 “Unconstitutional” action comprises and so are not written down as part of the law much more than what is against the law of of the constitution. Even so, these principles the constitution. Actions that violate funda- are fairly clear, and they can off er direction mental constitutional conventions are every for the proper course of action when they are bit as unconstitutional as those actions that considered and applied to the circumstances violate constitutional laws. Th us, it would be at hand. legal for the prime minister to advise suc- cessive elections until the opposition parties V. ASSESSING THE DECISION become bankrupt and incapable of contest- TO PROROGUE PARLIAMENT ing an election in any meaningful way. Th e With the benefi t of this discussion about prime minister could demand that the gov- the nature of elections, the principle of re- ernor general suspend Parliament every time sponsible government, the formation of gov- it appeared that the opposition might defeat ernments, and the role of the governor gener- one of its measures. Th ere is little in law to al, we can now turn our attention to the 2008 prevent the prime minister from phoning up constitutional crisis. Th e Governor General judges and instructing them on how to de- reached a very diffi cult and historic decision cide cases before them. Th e governor general in agreeing to the Prime Minister’s request to is the last bulwark against abuse of power by prorogue Parliament on December 4, 2008. the government, particularly for those actions A diffi cult decision implies that there were that are not subject to judicial review. good reasons to decide either way, and there Many scholars envision a broader range are several reasons to defend the decision to of possible circumstances in which the re- prorogue. Th ere is little guidance to be had from 15 Henri Brun, “Michaëlle Jean n’a pas le choix,” historic precedent, as no prime minister in online : La Presse
vote. Prorogation is normally granted after 16 Patrick Monahan, Constitutional Law, 3d ed. many months of parliamentary business have (Toronto: Irwin Law, 2002) at 76-9. elapsed. Th ere are only two other instances of 17 Th ese stipulations are found in sections 3 to 5 Parliament’s suspension only a few weeks into of the Canadian Charter of Rights and Freedoms.
Points of View / Points de vue No. 7 13 Th e Governor General’s Decision to Prorogue Parliament Heard a session following a general election. In 1988, insight into what obligations are involved. Parliament was prorogued after only eleven sitting days, but the prorogation period actu- Several constitutional principles are rele- ally covered seventy-eight days, since it over- vant to the decision to prorogue parliament in lapped with the Christmas break. Prorogation 2008. Confl icting considerations come from came after only fourteen calendar days and the application of these principles; neverthe- twelve sitting days in the fi rst session after the less, when all are weighed together some clear 1930 federal election. In both 1988 and 1930, conclusions are evident. however, the government had a solid major- First and foremost, the Governor General ity in the House of Commons, and there was has a duty to intervene in the political process no question that prorogation would permit as little as possible. She is an appointed offi - the government to avoid defeat. Th is was not cial, and so the Governor General must allow quite the case when Prime Minister Sir John ample room to let the elected politicians try A. Macdonald asked for prorogation during and resolve a crisis among themselves. Th ey the controversy that had erupted over the pa- alone are directly accountable to the elector- cifi c (customs) scandal in 1873; but again, in ate and should be given considerable latitude. 1873 there was no specifi c confi dence vote In this light, the Governor General should being avoided. Th e closest we come to a simi- avoid substituting her judgment for those lar scenario is the famous King-Byng episode of the politicians. One could say then that in 1926, when Prime Minister Mackenzie the decision to prorogue was really Stephen King asked Governor General Lord Byng of Harper’s, not Michaëlle Jean’s. However, that Vimy for dissolution just days before a vote may be an over simplifi cation. As the public was due on a confi dence motion relating to a commentary of most constitutional authori- scandal. At the time, it seemed almost certain ties and political actors at the time revealed, that Mackenzie King’s minority government there was a general acceptance that the Gov- would be defeated by the combined opposi- ernor General had a personal decision to tion parties. Lord Byng refused dissolution make, and she would be acting within her on the grounds that the government should constitutional powers to refuse or grant pro- not have tried to avoid censure in the House, rogation. Being a personal decision, the Gov- and also because he believed that an alterna- ernor General’s choice was destined to be a tive government could be formed by Arthur substantial intervention in the political pro- Meighan’s Conservative Party. Mackenzie cess regardless of whether or not she granted King resigned and Meighan led a short-lived prorogation. In fact, her decision to grant government before being defeated on a con- Harper’s request prevented the elected mem- fi dence motion, and again in the subsequent bers of Parliament from resolving the issue in general election. A heated debate has raged in a timely fashion. Th e Governor General was the decades since over the propriety of Gov- clearly informed by the opposition parties ernor General Byng’s decision. Th e diffi culty of their intent to vote no confi dence in the in trying to apply this 1926 precedent is that government on December 8, and to form an the circumstances of government formation, alternative government. Indeed, the morning and the particulars of the defeat of the Mei- of her meeting with the Prime Minister, the ghan government, are unique to the time and Governor General received petitions signed cannot be easily compared with the contem- by the caucus members of all three opposition porary situation. In the absence of a clear parties clearly stating that they intended to precedent on which to base a decision, consti- vote no confi dence in the current government tutional principles play a key role in providing and instead support a Liberal-NDP coalition
Points of View / Points de vue No. 7 14 Th e Governor General’s Decision to Prorogue Parliament Heard cabinet. Th us, she chose to acquiesce to the is fundamentally antidemocratic and a mark decision of a prime minister leading a mi- of authoritarian governments that abuse their nority party that would otherwise have faced powers to stay in offi ce. Indeed, Canadian certain defeat. Alternatively, the Governor constitutional practice has so valued the ne- General could have facilitated the stated in- cessity of a prime minister facing Parliament tentions of the majority of MPs whose parties and settling questions of confi dence that the had been supported by a majority of voters in rules had required a prime minister to settle an election held only seven weeks before. Th e the matter within as short a time as possible. question then arises whether the Governor Th e necessity to resolve a test of confi dence General had a higher obligation to follow the quickly has generally been ascribed to the advice of the Prime Minister rather than the example of Lester Pearson, who moved and opposition majority. won a confi dence motion the week following the defeat of a tax bill in 1968, at a time when Th e governor general is indeed normally many from his party were absent from Ot- bound to act on any constitutional advice of- tawa. When Paul Martin’s government faced fered by a prime minister who commands the a serious challenge in May 2005, with the confi dence of a majority in the House of Com- passage of a motion that all the opposition mons. Th is convention protects the principles parties agreed was a vote of confi dence, there of responsible government and parliamentary was very strong pressure on Martin to resolve democracy. Since the Conservative govern- the issue defi nitively within a very short pe- ment won the confi dence votes held on the riod of time. In the end, he agreed to hold speech from the throne just one week prior, a defi nitive confi dence vote ten days later, Harper could apparently address the Gover- which he won by one vote after Belinda Stro- nor General with authority. In normal times, nach crossed the fl oor and joined the Liberal there would be no question that the Governor Party. Th e lesson from the precedents, then, General should have granted early proroga- is that matters of confi dence must be resolved tion, just as her predecessors had done three as quickly as possible. times in the past. However, these were not normal times, and the circumstances raise se- Th e necessity to determine Parliament’s rious doubts about both the constitutionality confi dence in a government is all the more im- of the advice off ered by the Prime Minister, portant in the early weeks following an election and his authority to off er that advice. in which no party won a majority of the seats in the House of Commons. Only the elected Th e Prime Minister’s request to prorogue members of the House can determine which Parliament to avoid defeat on a vote of con- party has the right to govern in a minority fi dence is of questionable constitutionality. situation. Th e incumbent prime minister has a Scholars around the Commonwealth have right to meet Parliament after an election, but decried such a tactic. A similar event had that is all. Th e prime minister must win and not happened in modern, stable parliamen- maintain the confi dence of Parliament in or- tary democracies because prime ministers der to continue governing, but the Governor have understood that it is their duty to face General has prevented a newly elected Par- Parliament; a prime minister rejecting this liament from expressing its judgment on the duty in Canada is unprecedented in modern Prime Minister and cabinet. Indeed, when it times. It has happened in moments of tur- was shut down the House of Commons was moil in unstable political systems, as it did fully engaged in its proper role of determin- in Sri Lanka in 2001. Th e ability to simply ing which group really held its confi dence to shut down Parliament to avoid losing offi ce govern after the October election.
Points of View / Points de vue No. 7 15 Th e Governor General’s Decision to Prorogue Parliament Heard
Th e fact that the government had won Th e particular confi dence vote annulled its vote of confi dence on the speech from the by prorogation was all the more crucial since throne the week before did not establish its the government had previously delayed it by unquestionable right to govern, especially one week. Th e government had already ben- since the government’s motion on the address efi ted from an acceptable grace period with in reply was successfully amended with very a one-week delay in the confi dence vote, but important caveats relating to the authority of it then had a duty to resolve the issue. In the the opposition parties to speak for a major- context of the timing of the crisis — the very ity of Canadians. Th e government delivered opening weeks of a new minority Parliament its economic statement on the very same day — any vote of confi dence becomes crucial that the speech from the throne was ap- as the House decides which party has their proved. Th is economic address was the fi rst confi dence. Furthermore, the opposition par- major piece of government business to be pro- ties used this delay to agree to a new govern- posed in the new Parliament, and it was im- ment that would be supported by a majority mediately rejected by all three party leaders of members of Parliament. A signed agree- in the House. Th eir instant rejection of the ment ensured that all of the opposition par- measure and the subsequent agreements they ties with a majority of members in the House signed demonstrably undermined the author- would support a coalition government for at ity of the government.18 least eighteen months. A documented, alter- native government reinforced the Governor General’s duty to ensure that that MPs could 18 Perhaps the fundamental mistake the vote on the scheduled confi dence motion. opposition parties made came with the fi nal Th is impending confi dence vote, the week- vote on the address in reply to the speech from the throne. It is a real curiosity that the long delay, and the existence of an alternative opposition leaders announced their intention government greatly undermined the Prime to vote against the government’s economic Minister’s authority to advise prorogation. statement on the afternoon of November 27, and then minutes later allowed the government It is important to note that the Prime to win a crucial test of confi dence with the Minister is not the Governor General’s ex- address in reply. In hindsight, much of this clusive advisor. He is her prime minister, and crisis would have been averted if the opposition the only one who can present binding ad- had simply acted on their intent to vote vice. However, the Governor General can, against the economic statement by defeating the address in reply, which would have been and should, consult other advisors. She has an unquestionable loss of confi dence and the the benefi t of her own personal secretary, the government would have had to resign. Since clerk of the privy council, and any other con- the change of offi ce would not have been stitutional authority she might privately en- instantaneous in any event, they would have gage; indeed media reports revealed that the still had the coming weekend to work out former Dean of Osgoode Hall Law School, the details of the coalition they eventually agreed upon. Alternatively, the opposition Peter Hogg, was present in Rideau Hall to could have boycotted the vote on the address advise the Governor General during her con- in reply if they felt the need to buy time versation with the Prime Minister on the before actually defeating the government. If morning of December 4.19 When there is a government members had been the only ones voting in favour of the throne speech, the Prime Minister would have been deprived of 19 Michael Valpy, “GG Made Harper Work for the legitimacy he later drew from advising the Prorogue,” online: Globe and Mail
Points of View / Points de vue No. 7 16 Th e Governor General’s Decision to Prorogue Parliament Heard question of Parliament’s intent to support the role of the Bloc were fanned directly by the government, or the slightest possibility that government’s public relations campaign, and an alternative government might be consid- it appears that this message resonated with ered, the Governor General also has a duty to a number of Canadians. A Leger Poll con- acquaint herself with the views of the opposi- ducted on December 2 and 3 found that 49 tion leaders. percent of Canadians were “very concerned” about the role of the Bloc, and a further 19 Th e existence of an alternative govern- percent were “somewhat concerned.”20 How- ment is crucial to the governor general’s abil- ever, these concerns are essentially political ity to refuse the prime minister’s advice, or to in the broad sense, rather than constitutional, insist that the prime minister do any specifi c and appear to be largely overblown. Bloc MPs thing (such as agree to an election). A fun- have been winning elections to Parliament for damental constitutional convention requires over fi fteen years, served constructively as the that a prime minister must accept political Offi cial Opposition from 1993-97, and were responsibility for the governor general’s exer- part of negotiations with the Conservative cise of any of her prerogative powers, includ- Party over support for a possible alternative ing the reserve powers. Although there are government in 2004 and 2005. Furthermore, certain circumstances in which the governor the Bloc’s willingness to support the proposed general may use her discretion, there must coalition government for at least eighteen still be a prime minister accountable to the months seems to clearly commit the party to House of Commons in place after that deci- stabilizing Canada’s system of government sion is made to accept political responsibility. rather than empowering it to undermine na- If the current prime minister will not agree, tional unity. It would also have been highly then the governor general must appoint an- inappropriate for Governor General Jean to other who will. have discounted an alternative government by Since there is some expectation that a asserting that one party caucus could never prime minister will resign if the governor participate as any other in the aff airs of state; general refuses his or her advice, the gover- that would have been an insupportable inter- nor general cannot refuse advice without be- vention into partisan aff airs. ing certain in advance that another individual Th ose supporting the Governor General’s will accept appointment as prime minister decision to prorogue Parliament have rightly afterwards. By agreeing to become the new pointed out that she must also consider the prime minister, that individual must neces- likelihood that an alternative government sarily defend the governor general’s decision would be able to function for any meaningful to the public at large. In this case, the op- time if it were to take offi ce. Th ey point out position parties had clearly told the Governor that Stéphane Dion was a lame duck leader General that they were prepared to support a going into this aff air, pressured by his own new prime minister; she had the signatures party to resign after the election, and that his of a majority of MPs as proof of this com- personal authority was further undermined mitment. by a disastrous performance in the televised One other relevant consideration regard- address the night before Harper met with ing the formation of the alternative coalition Jean. Furthermore, there was evidence that government is whether it was constitutionally appropriate to rely on a signed agreement with 20 Leger Marketing, “National Opinion Poll,” the Bloc Québécois. Public fears about the online:
Points of View / Points de vue No. 7 17 Th e Governor General’s Decision to Prorogue Parliament Heard the anti-Bloc campaign was making inroads matters for which there is no recourse to the into public consciousness, and that some courts. Th e basic functioning of responsible NDP and Liberal backbenchers were increas- government and the operations of Parliament ingly uncomfortable with the backlash they are not subject to judicial review; the gover- would face from their voters in the next elec- nor general alone stands as a bulwark against tion, were the coalition to be asked to form certain constitutional abuses. a government. While there is merit in these considerations after the fact, one has to con- Finally, the governor general also has a sider the balance of evidence available at the duty to not to undermine the very offi ce she time about the current Conservative govern- occupies. Th ere were clear indications that ment’s prospects for survival, as opposed to the Conservative Party would have unleashed those of the coalition. At the time, the only a harsh campaign criticizing the Governor thing that was certain was that the govern- General if she had refused prorogation and ment only had the support of 143 of a pos- subsequently appointed the coalition to pow- sible 308 votes in the House of Commons. In er. It is likely that she would have been at- contrast, the potential coalition government tacked with the same two-pronged message was supported by a signed agreement among used against the opposition parties. First, as all three opposition leaders, and a majority an appointed offi cial who had rejected the ad- of MPs had signed petitions that stated their vice of the duly elected prime minister, she lack of confi dence in the current government, would have been accused of undermining de- as well as their support for the coalition. In mocracy. Second, as a Liberal appointee who this light, the incumbent government’s pros- had staged a palace coup and installed the pects should have appeared to be nil in com- Liberal Party in power, she would have been parison to those of the coalition. condemned for ignoring that party’s disas- trous showing in the election, not to mention Other doctrines guiding the work of gov- the extent to which its leader had become ernors general arise from their duty to ensure discredited. In short, she would have been that the basic principles of parliamentary de- blamed for forcing from offi ce a prime min- mocracy are allowed to function. Th e fi rst and ister whose party had “won” the recent elec- most important principle of parliamentary tion. Th e Governor General could have been democracy is that the government of the day further vilifi ed for being married to a Québec must win and maintain the confi dence of the nationalist, underlining the message that the House of Commons. Th us, a governor gen- new government was providing opportuni- eral has a central duty to ensure that there is ties for separatists to break apart the country. a government in offi ce which commands the Public rallies and a media blitz would have confi dence of the House of Commons. Th is likely spread considerable anger aimed at the duty is particularly important in the early Governor General. Nevertheless, the Gov- months following a general election that re- ernor General has a higher duty to defend turns a House of Commons divided among the principles of parliamentary democracy minority parties. By suspending Parliament, and to prevent fundamental abuses of power the Governor General prevented it from ful- where possible. It is a given that there will fi lling its duty. be profound controversy generated whenever any governor general is forced to stand up to In our parliamentary system, the gover- a prime minister determined to wield power nor general also exists to provide a last bastion at the expense of basic constitutional prin- against abuses of power by the government. ciples such as responsible government. Al- Such protection is all the more important for though no governor general should generate
Points of View / Points de vue No. 7 18 Th e Governor General’s Decision to Prorogue Parliament Heard unnecessary controversy, each should refuse in relatively short order. Precedents suggest to consider her own position when our demo- that between a week and ten days is an cratic institutions and principles are at stake. appropriate length of time. In 2008, the Th e alternative is to risk caving in to abusive government had already exhausted this governments simply to avoid controversy and window, and there was no certainty about public protest. Th e responsibility for defend- when a confi dence vote would be held on ing the governor general’s actions to the pub- the resumption of Parliament. lic lies squarely on the shoulders of any new • Th e governor general can only refuse advice government that might be appointed. if she can appoint an alternative govern- VI. JUSTIFYING A DUTY TO ment. Opposition leaders had written to REFUSE PROROGATION the Governor General several days ahead of her meeting with the Prime Minister. Th e combination of these factors produce She was clearly informed that the major- a powerful argument that the Governor Gen- ity of MPs intended to vote no confi dence eral had a duty to refuse the Prime Minister’s in the current government, and of their advice to prorogue Parliament. Th is conclu- commitment to support an alternative sion is underlined by the following summary government for a minimum of eighteen of principles and their application to the deci- months. Based on the petitions signed by sion to prorogue: a majority of MPs, the prospects for that alternative government seemed far higher • Th e governor general has a broad duty to than for the current government. let the normal political actors and processes resolve political problems. Without the • Th e head of state in a parliamentary democ- prorogation of Parliament, elected poli- racy exists to protect it from serious abuse by a ticians would have resolved the issue on government in situation where there is no ju- December 8. Th e political resolution of dicial remedy. In principle, it is quite clear- the problem has now been delayed for a ly an abuse of power for a government to couple of months. Although the govern- suspend Parliament for two months when ment promised to deliver the budget on faced with imminent defeat. Th e abuse January 27, there is no deadline for hold- was all the more striking in this case be- ing the actual votes on either the budget cause Parliament was prorogued just three or the new speech from the throne. weeks into the fi rst session, after an elec- tion had returned only minority parties. • Th e governor general has a duty to act on any constitutional advice off ered by a prime min- • Th e governor general should put the fate of ister who enjoys the confi dence of the House democratic principles and institutions above of Commons. But the advice to prorogue any worries about possible controversy gen- Parliament is arguably unconstitutional. erated by those she is preventing from abus- Th e Prime Minister’s authority to advise ing their powers. Abusive governments the Governor General was undermined will not acquiesce quietly to being forced by the existence of a signed agreement for from offi ce, and a governor general must an alternative government supported by be prepared for ensuing protests. Th e new the majority of MPs, only two weeks into prime minister and supporters would have a newly elected Parliament. a duty to defend the Governor General’s actions to the public. • Serious doubts about Parliament’s confi dence in the government must normally be settled A fundamental litmus test for any impor-
Points of View / Points de vue No. 7 19 Th e Governor General’s Decision to Prorogue Parliament Heard tant decision by a governor general is the kind rogation and the invitation of the coalition to of precedent it sets for the future. By grant- form a government have also been widely al- ing prorogation, the Governor General not luded to as a justifi cation for the Governor only allowed the current Prime Minister to General’s decision. However, public opinion escape almost certain defeat in a confi dence is not as clear as some assume, and many have motion, but she also set the stage for every based their judgment of her decision to pro- future prime minister to follow suit. rogue Parliament on basic misperceptions of how parliamentary government works, par- With this precedent, any prime minister ticularly in a minority situation. An Ipsos poll can demand that the governor general sus- conducted just prior to the Governor Gener- pend Parliament whenever he or she believes a al’s decision found that 68 percent of Canadi- successful vote of no confi dence is imminent. ans supported the suspension of Parliament.21 And since the constitution only requires that However, two polls conducted once the de- Parliament meet once within a twelve-month cision to prorogue Parliament was known period, the “time out” bought by proroga- reveal a much narrower split in public opin- tion can be a signifi cantly long period indeed. ion. An Ekos poll conducted on December Even once Parliament reassembles, there is no 4, the day of the decision, found 45 percent guarantee that the government will actually in favour of prorogation and 43 percent op- face another vote of confi dence at a particu- posed.22 An Angus Reid Poll conducted over lar time, since the scheduling of most votes the next four days found 51 percent in favour is the prerogative of the government. Th is and 41 against prorogation.23 Two important precedent is a damaging and dangerous con- points need to be made about these poll re- sequence of the Governor General’s decision. sults. First, the suspension of Parliament was If this precedent stands, no future House of not the clear choice of a strong majority of Commons can dare stand up to a prime min- Canadians, once prorogation had occurred. ister without putting the House in danger of Second, the level of support recorded for pro- being suspended until the prime minister be- rogation is largely due to the support of Con- lieves it has been tamed. servative voters. In the Ekos poll, 80 percent Other considerations, such as the ben- of Conservative supporters agreed with the efi ts of a prolonged cooling off period, the Governor General’s decision, compared to lack of an electoral mandate for a coalition, or less than 25 percent of those supporting the the role of the Bloc Québécois are absolutely three main opposition parties. Such a clear none of the Governor General’s concern when making a decision on constitutional grounds. Th ey are purely political matters that must be 21 Ipsos, “Majority (68%) Of Canadians From Every Part Of Country Supports Governor left to members of Parliament to sort out in General’s Decision To Prorogue Parliament,” their own time and in their own way. Indeed, online:
Points of View / Points de vue No. 7 20 Th e Governor General’s Decision to Prorogue Parliament Heard partisan split suggests that popular support for prorogation hardly represents a national consensus. On balance, it appears that the Gover- nor General failed to defend Canadian par- liamentary democracy and opened the door to repeated abuses of power by future prime ministers. Our newly elected MPs were about to pronounce authoritatively on which par- ties would have their confi dence to govern, but they were prevented from doing so by the Prime Minister’s request to prorogue Parlia- ment. We elect Parliaments not governments in Canada, and Parliament must be free to determine who governs after an election. Th e threat of a vote of no confi dence in the gov- ernment is the only real lever the individual elected members of Parliament have against the weight of cabinet. A dangerous precedent was set with the prorogation of Parliament to avoid a confi dence vote, and it risks depriving Parliament of its only major defence against subjugation to the whims of the prime minis- ter and cabinet. Future prime ministers now know they can shut down Parliament when- ever they are threatened with defeat.
Points of View / Points de vue No. 7 21