There is a disturbing trend in much of the commentary precipitated by the events of the last two weeks culminating in Governor General Michaël Jean’s decision to prorogue Parliament. Much of the commentary rightly notes that the decision to prorogue, and even to dissolve Parliament, is a prerogative and, therefore, a matter of discretion that rests solely with the Governor General. Most commentators appear to agree that this discretion enables the Governor General to actively intervene in Canadian political life, the only question remaining is in what direction. At that point, political preferences usually enter into the discussion and determine the way in which that discretion should be exercised.
Yet it should be apparent that the Governor General is expected to steer clear of political controversies and so should exercise her discretion in ways that minimize her meddling in Canadian Parliamentary affairs. The Governor General should be guided less by the dictates of political partisanship, then, and more by the principles of democracy and responsible government. The Governor General’s actions should be guided principally by considerations that do the utmost to respect the will of Parliament and, ultimately, the people. It is Parliament which, conveniently for the Governor General, is the barometer of the people’s will as expressed periodically through the electoral process.
Responsible government did not come easily to the Dominion of Canada. It took a hard-fought fight to secure it that included violence and rebellion. Only by the mid-nineteenth century, long after the right had been secured in the British Parliament, could Canadians expect the head of the Government to “shew that he has the confidence in the loyalty of all the influential parties with which he has to deal,” wrote Lord Elgin in 1847. Mr. Harper was on the verge of losing that confidence when he requested prorogation of the House, having proposed a series of financial measures that would not garner the support of a majority of the House. A mere two weeks and a few days after the new Parliamentary session began, Mr. Harper asked Ms. Jean to prorogue the current session in order to avoid losing a vote of confidence in the House. Mr. Harper’s request in this way was unusual and unprecedented and should make us feel uneasy. There is little doubt, however, that Ms. Jean rightly acceded to his request. Control over the continuity of Parliamentary sessions rests with the leader of the governing party. Having formed the government, with the House lending its confidence following the throne speech, Mr. Harper legitimately was entitled to utilize the power of beginning and ending sessions in the House even if this meant delaying, even reversing, the prospects of a confidence vote. Prorogation cannot act as a bar to that eventual vote, however. Playing with the timing of parliamentary sessions is a much less drastic step than to insist on the dissolution of Parliament in order to avoid a confidence vote.
It is this more drastic alternative that the Prime Minister claims he is entitled to hold in reserve: that Ms. Jean will be obliged to accede to his request to dissolve Parliament, should he choose to make it, rather than turn the reins of power over to an opposing party or coalition of parties. Here again, constitutional practice should be guided by the principles of democracy and responsible government. The Governor General’s obligation is to respect the will of Parliament as expressed in the general election of two months ago. If Mr. Harper loses the confidence of the House, the Governor General’s obligation is clear: turn to the opposition party, or any combination of parties sitting in the minority Parliament, to determine whether they have the confidence of the House to govern. This hardly undermines democratic principles, rather, it respects them. After all, the outcome of the general election awarded a majority of seats to parties other than the Conservative Party of Canada.
It follows that the Governor General should not insist on being satisfied that any alternative governing party or coalition is a “stable” one. Not only is stability too vague a criterion, she is in no better a position to predict the length of a minority government than expressions of confidence issuing from Parliamentarians themselves. The paper trail generated by the proposed coalition – including the text of an agreement and several letters to Ms. Jean herself -- in the days leading up to the decision to prorogue clearly were meant to assuage any doubts on her part that the coalition could govern for at least eighteen months. The voices of Parliamentarians in the House, however, should suffice for this purpose as they determine, between elections, who governs. If the alternative proves unstable, then dissolution will result in any event. Nor is there some intervening matter of great public importance that demands the Governor General to ignore Parliament’s will. Some have pointed to the commitment of the Bloc Québecois to support the Liberal-NDP coalition for a period of 18 months as such an intervening event. For the Governor General to do so would be to meddle significantly in the workings of Canadian parliamentary democracy and to discount the legitimacy of the democratic expression of the majority of Quebecers.
As regards these general outlines, I would go so far as to say that even Mackenzie King would have agreed. King made his infamous request to dissolve Parliament in 1926 in advance of a confidence vote in Parliament. King advised Lord Byng that there was no probability that Arthur Meighen, leader of the opposition, would be capable of securing the confidence of the House. In which case, he advised Lord Byng, Parliament should be dissolved. Byng preferred to accept Meighen’s word on this, who mistakenly advised Byng that he could govern. As King reiterated his position later that year: “when Parliament ceased to be in a position to make a satisfactory decision as to which party should govern, it was then for the people to decide.” If Parliament is in a position to make that decision, the Governor General should do nothing else than follow it.