The request the G-G can't refuse
If Stephen Harper comes calling, and wants an election, Michaelle Jean will have to dissolve Parliament
PATRICK MONAHAN
From Saturday's Globe and Mail
August 29, 2008 at 11:45 PM EDT
Prime Minister Stephen Harper's apparent plan to call a general election this coming week, in defiance of the government's own legislation fixing October, 2009, as the date of the next federal election, has triggered a good deal of controversy this past week.
A number of commentators have argued that calling an election without waiting for the House of Commons to reconvene on Sept. 15 would violate established constitutional conventions or norms. Some have even claimed that the election call would be illegal, in light of the government's fixed-election date legislation, and suggested that the Governor-General, Michaelle Jean, should carefully consider whether she should accept the Prime Minister's request.
In fact, while the Prime Minister's election gambit may violate political commitments, it is perfectly consistent with constitutional norms and practices, and would not violate the fixed-date election legislation.
The first point to recognize is that, under Westminster-style parliamentary systems such as our own, a prime minister has virtually absolute discretion to determine the date of a general election. While the formal legal power to trigger an election rests in the hands of the governor-general, there is a firm constitutional requirement that she will exercise her powers only on the advice of the prime minister.
Thus when the prime minister asks the governor-general to dissolve Parliament and fix the date of the election, the governor-general is expected to automatically grant the request without making an independent assessment of its merits.
It has been suggested that there may be exceptional circumstances in which a governor-general might be justified in exercising a "reserve power" and refusing to grant a prime minister's request for a dissolution.
For example, in her 2006 memoir Heart Matters, Adrienne Clarkson, the former governor-general, revealed that in 2005 she would have refused a request for a dissolution from Paul Martin, if he had made the request within six months of the previous election. Ms. Clarkson claimed that "to put the Canadian people through an election before six months would have been irresponsible, and in that case I would have decided in favour of the good of the Canadian people and denied dissolution."
Ms. Clarkson reported that she had formulated this six-month principle on the basis of the opinions of "constitutional experts whom I consulted regularly." Yet the constitutional basis for the principle seems unsound, since it is surely for the elected prime minister, and not the unelected governor-general, to decide what is in the best interests of the Canadian people.
Ms. Clarkson's constitutional advice suggesting that a government must wait six months before seeking a dissolution was likely based on the celebrated "King-Byng" incident of 1926, the only time in Canadian history where a governor-general refused the request of a prime minister to dissolve Parliament. Mackenzie King's minority government had been in office for a little more than six months when, facing likely defeat on a vote of confidence, he asked Governor-General Byng to dissolve Parliament and fix an election date. Byng refused and, instead, called upon the leader of the Opposition, Arthur Meighen, to form a government.
Constitutional scholars have long debated whether Lord Byng acted properly in refusing the prime minister's request. But a number of quite distinctive circumstances prevailed in June, 1926, none of which is present today.
First, the prime minister was seeking a second election within a span of about six months, having previously sought and been granted a dissolution that led to the election of November, 1925. Second, it was virtually certain that King was about to be defeated on a confidence vote, which suggested that he no longer enjoyed the confidence of the House of Commons. On this basis, the governor-general might have regarded it as appropriate to refuse the prime minister's advice, since the governor-general is only required to follow advice from a first minister who has the support of the House.
Third, and perhaps most importantly, the Conservatives under Arthur Meighen had in fact won significantly more seats than King's Liberals in the 1925 election and were just eight seats short of a majority, but King had continued to govern with the support of the Progressives. Thus Meighen could plausibly claim that he should be given the opportunity to form a government before another election. (In fact, Meighen's government was defeated within days of taking office, triggering the election of September, 1926, which returned King to office.)
The circumstances today are quite different on all counts from those in 1926. First, Stephen Harper would be seeking his first dissolution, and it has been almost a full three years since the previous election. In fact, Mr. Harper's minority government has been in office nearly twice as long as the average minority government in Canada. Moreover, despite Opposition Leader Stephane Dion's strong hints that he intends to defeat the government this fall, there can be no doubt but that the Prime Minister still enjoys the confidence of the House, having survived numerous confidence votes during the spring session of Parliament. Thus there is no basis for the Governor-General refusing to follow his advice. Finally, unlike in 1926, there is no suggestion that the Leader of the Opposition is in a position to form a stable minority government and thus no practical alternative to an election should the Prime Minister request one.
In short, even if the governor-general has a "reserve power" that would entitle her in exceptional circumstances to refuse a prime minister's request for an election, no such special circumstances exist today. Thus there can be no doubt but that under established constitutional conventions, the Governor-General should grant Prime Minister Harper's request.
What of the fact that government committed itself to fixed-date elections, through amendments to the Canada Elections Act enacted just last year, with the next election scheduled by law to occur Oct. 19, 2009?
The legislation did include a "saving provision," stating that the requirement to hold an election in October, 2009, did not affect the power of the governor-general to dissolve the House earlier.
But Justice Minister Rob Nicholson, who testified before the Senate Committee examining the bill on Dec. 6, 2006, explained that this "saving provision" was inserted in order to deal with a situation where the government had lost the confidence of the House, making an early election necessary. Mr. Nicholson went so far as to suggest that if the prime minister were to seek a dissolution before the date fixed for the next election, the governor-general would be entitled to satisfy herself that the prime minister had, in fact, lost the confidence of the House before granting the request.
While this would seem to have been the underlying purpose of the provision preserving the discretion of the Governor-General to dissolve Parliament before October, 2009, the terms of the legislation make no mention of this specific purpose. Instead, the legislation states simply that the fixed election date requirement does not affect the "powers of the Governor-General, including the power to dissolve Parliament at the Governor-General's discretion."
In fact, had the legislation attempted to impose legal limits on the power of the governor-general to dissolve Parliament, it would have been unconstitutional. The amending formula enacted in 1982 requires that changes to the powers of the governor-general can only be made through a constitutional amendment supported by the federal Houses of Parliament and the legislatures of all the provinces.
Nor does the legislation impose any limits on the discretion of the prime minister to advise the governor-general to dissolve Parliament. Any such limitation would have been unconstitutional in any event, as an attempt to indirectly limit the powers of the governor-general, without a constitutional amendment.
In short, the Governor-General (and thus, indirectly, the Prime Minister) retains full legal authority to dissolve Parliament and trigger an election at any time, regardless of whether the government has lost the confidence of the House of Commons. If the Prime Minister does seek an election this week, it may well be inconsistent with the political objectives underlying the fixed-election-date legislation, but not the actual requirements of the law as enacted.
Accordingly, whether Canada is to have an election this fall is a political, not a legal question. Moreover, given the suggestions by Stephane Dion and other prominent members of the Liberal Party over the summer that Canadians have "more and more appetite for an election" and that the Opposition may well defeat the government this fall anyway, it seems unlikely that the calling of the election will prove to be a significant issue in the campaign.
One is reminded of the circumstances that led to the election of March, 1958, when the Opposition leader, Lester Pearson, demanded that the minority government of John Diefenbaker resign. Mr. Diefenbaker responded by immediately calling for a general election. Mr. Pearson's resignation demand made it impossible for him to criticize the timing of the election, although it took place less than a year after the election of June, 1957.
Similarly, with the Leader of the Opposition having suggested in late July that Canadians' appetite for an election is growing, the federal campaign of 2008 will likely turn on issues other than the timing of the election itself.
Patrick Monahan is dean of the Osgoode Hall Law School of York University.