I just received an invitation from someone on Facebook to join a group in support of making the Governor General of Canada an elected position. I understand that many left-leaning people are disappointed by Her Excellency’s decision to prorogue Parliament today. However, making the position an elected one is an extremely bad idea. Instead, I would support either the status quo or a delegation of some of the powers of the Governor General to the Chief Justice of Canada.
Role of the Governor General
On paper, Canada is a Monarchy. Our Head of State is the Queen of Canada, currently Queen Elizabeth II. The Queen of Canada also happens to be the Queen of 15 other states including the United Kingdom. With all of that Queening around, she can’t really devote all of her attention to Canada. As a result, she delegates most of her Canada-related business to a person called the Governor General of Canada. In the olden days, the monarch used to just appoint a Governor General and we lowly subjects would just have to live with that. More recently, the convention has been that the monarch appoints a person recommended by the Prime Minister of Canada. So far, everything is just peachy.
Of course, we all know that in reality most public policy is actually set by Parliament and by the cabinet. But technically, the House of Commons, the cabinet, and the Prime Minister are all below the Governor General on the food chain. The Governor General is the person who makes appointments to the Senate and to the Supreme Court (albeit, on the advice of the Prime Minister). The Governor General is also the person who gets to decide who becomes Prime Minister. When we vote in a federal election, we don’t elect anyone directly to the Government of Canada. All we do is elect people to represent our local communities in the House of Commons. Once we do that, it is up to the Governor General to appoint a Prime Minister and ask that Prime Minister to form a government.
Usually, doing so is a pretty straightforward process. The Governor General will ask the leader of the party that won the most seats in the House of Commons to become Prime Minister and form a government that can command the support of the House of Commons. So far, so good.
Unfortunately, sometimes forming a Government isn’t quite so simple. If no single party wins a majority of the seats in the House of Commons, the leader of that party is going to have a very hard time indeed maintaining the confidence of the House. If the Government loses the confidence of the House of Commons, the Governor General will typically dissolve Parliament and call a new election.
For the most part, all of these tasks are rubber-stamp actions by the Governor General. The conventions that dictate what a Governor General ought to do are very strong and seldom challenged. Therefore, the role of Governor General is largely a ceremonial one, with most de facto power in the hands of the Prime Minister, cabinet, and the House of Commons.
An Onion in the Ointment: Concerns Regarding Matters of Constitutional Importance
The drama that has been playing itself out over the last couple weeks is an example of what scholars call “a constitutional crisis”. You see, we just had an election in October. In that election, no single party was able to win a majority of the seats in the House of Commons. The party that won the most seats was the Conservative Party so, by convention, the Governor General asked its leader Stephen Harper to remain as Prime Minister and form a new government.
Unfortunately, the Conservatives tried to pass some public policy changes that upset the three other parties (called the “opposition” parties, because their role in Parliament is to be critical of the Government in order to keep it honest). The opposition parties decided that they had lost confidence in the Government of Canada, and were prepared to defeat the Government in a vote in the House of Commons.
Normally, this would trigger a federal election. However, there were two factors that made the situation unique. First of all, we just had an election in mid-October. If a new election were called in early December, Canadians would have had to vote in two federal elections just months apart. The second unique circumstance is that the three opposition parties struck a deal to co-operate with one another in the House of Commons. The effect of this deal is that the Liberal Party and the New Democratic Party would form what is called a “coalition government’ and the Bloc Québecois agreed to vote in favour of any confidence motions that the coalition proposed. The net result is that the Liberals and NDP were going to ask the Governor General to defy convention and allow them to form a new Government rather than calling a new election. This new coalition government, unlike the Conservative minority government, would be able to maintain the confidence of the House of Commons.
The Prime Minister, who would be ousted from that role if the deal came to fruition, was not very happy about this. He decided that instead of allowing the opposition parties to defeat his government on a confidence motion, he would also ask the Governor General to defy convention. Earlier today, Stephen Harper met with the Governor General and requested that Parliament be prorogued until the end of January. What that meas is that Parliament is essentially suspended from sitting until the new year, giving Prime Minister Harper time to shore up support for his Government and continue governing. The Governor General granted this request, which was the first time Parliament has ever been prorogued simply to avoid a confidence vote.
Both the opposition’s proposal to form a coalition government and the Government’s request to prorogue Parliament put the Governor General in an extremely difficult position. Although her role in the Government is largely ceremonial, the Governor General is suddenly being asked to resolve questions of national political importance that involve complex legal questions about Canada’s wonky Constitution (much of which is unwritten). There is no requirement for the Governor General to have any legal training whatsoever, yet suddenly her decisions will have constitutional importance for the rest of Canada’s history.
Some political partisans were disappointed with the Governor General’s decision to grant the prorogation of Parliament. Of course, if the decision had gone the other way, partisans of a different stripe would have been equally upset. In their disappointment, some left-leaning partisans have called for Constitutional reform, arguing that the role of Governor General should be an elected one in order to give the public some oversight when decisions like these are made.
Why an Elected Governor General is a Bad Idea
The public’s opinion is certainly one of the things that a Governor General might validly take into consideration when making these difficult sorts of decisions. However, I argue that making her position an elected one is a tremendously bad idea.
If the position of Governor General were elected, presumably voters would select their Governor General on some sort of political basis (be it formal party affiliation or merely an inclination toward a certain type of political thinking). Yet it is imperative that the Governor General remain entirely non-partisan and impartial when making decisions of constitutional import. Moreover, a Governor General should not have to worry about re-election implications or other political repercussions of the decisions she makes. These questions require thoughtful and dispassionate consideration. The Governor General should be unimpeachable for her decisions in these matters (as long as they are within the reasonable limits of established customary norms). Introducing politics into the matrix of the Governor General’s consideration can only introduce bias, partiality, and unneeded controversy into the process.
A Better Solution
I believe that there is reason to be concerned about the Governor General making some of these important decisions that invoke complex legal and constitutional considerations. Ideally, we want a decision-maker who is deeply familiar with the Constitution, non-elected, non-partisan, impartial, and unimpeachable for her decisions. I would suggest that there is one person in Canada who is better suited than anyone else to fill that role: the Chief Justice of the Supreme Court of Canada (currently the Right Honourable Madame Justice Beverly McLachlin).
Delegating some power in respect of these challenging questions needn’t happen on a wholesale or even on a formal basis. Indeed, we could simply establish a new convention whereby the Governor General seeks the advice of the Chief Justice when controversial issues such as these arise. In that sense, the Governor General can continue to play her largely ceremonial role in the Government of Canada.
It is not at all unheard of for the Chief Justice to take on some of the roles and powers of the Governor General. In fact, if the Governor General dies, becomes incapacitated, or leaves the country for more than one month, the Chief Justice already assumes the role of Governor General on an interim basis (although she is called the “Administrator of Canada” not “Governor General”). The Rt. Hon. Beverly McLachlin served as Administrator of Canada for a period in 2005 when then Governor General the Rt. Hon. Adrienne Clarkson was in the hospital having a pacemaker installed.
I think the idea of delegating all “constitutional” and “quasi-constitutional” decisions of thee GG to the Chief Justice is brilliant.
Just so that readers are aware: this entry is actually cross-posed from my blog. I raise this only because there are some interesting comments in discussion there which might add to the discussion here:
http://devinjohnston.ca/blog/2008/12/05/against-elected-gg-delegation-power-chief-justice
I’d vote for McLachlin.
She could come up with a factors-based approach to determining whether to prorugue a Parliament. :)
Seriously though, I do support the idea of the C.J.C. taking the role for all the reasons that you stated.
This is a very interesting idea and one that has some appeal. I’ve been suggesting since the decision that, if this wasn’t case where the GG would step in to prevent a PM from abusing his authority, I’m not sure there’s any reason to maintain the position. If convention is so codified, why don’t we put it on paper so we mere mortals and quit cluttering the constitution up with pretending to give the GG authority that she doesn’t have. Codify what we can and give the courts (or the Chief Justice) power to stop the government from overreaching those rules. I’d feel much more confident with a trained judge making those decisions (hopefully with full transparency and a reasoned decision released) than the GG meeting behind closed doors, granting or denying the PM’s request and the Canadian public having to guess what the reasoning was.
An elected GG would result in an even more spineless GG! Disaster.
The danger in having the Supreme Court Justice be the decision maker is that it politicizes the Supreme Court. If the Supreme Court wades into a political issue, it’s going to be attacked politically by the party who it ruled against. For example, when the Supreme Court of the United States ruled in favor of Bush in the Florida vote-count of 2000, it was accused of partisanship, and attacked by many of Bush’s political opponents. Thus, the image of an unbiased, independent Supreme Court is compromised. The losers in the decision will invariably accuse the Justice of bias, and that is not good for the Supreme Court to have to embroil itself in a political war, and defend its reputation. It must be seen to be unbiased, even if makes the right decision, but is seen as biased, then it’s a problem.
Further to that, the Supreme Court Justices are appointed by the Prime Minister. Hence, you could have a situation whereby a long-standing PM could have appointed the Justice who now has to decide whether or not to overturn his government. As much as we hope that the Justice would decide fairly, the impression of bias will have been created.
Bob: You make a valid point.
I would counter by saying that the SCC is already seen by many as politicized, whether or not that is true.
The SCC is often put into a position of having to sort out hot-button political issues: gay rights, minority language rights, secession of quebec(!), abortion, gun control.
No matter how the SCC rules on these kinds of issues puts the court in the position of appearing politicized. People just get over it after a while, especially after reading the decision and understanding how rational and reasoned it is.
The basic premise of Devin’s article is that the C.J.C. is simply much better qualified and better positioned to make tough constitutional decisions than a former CBC personality (as much as I happen to like Her Excellency Michaëlle Jean).
Lawrence, Agreed. Much more qualified. How about the Queen herself appoints a Governor General rather than the PM? Further to that, the Queen could be requested to appoint someone who is an expert in constitutional law. Then you would have a truly independent, qualified Gov Gen. An ex-CBC journalist is not qualified in the least to be deciding on constitutional matters of the nation.