Introduction

On December 4th 2008, Canada's Governor General, Michaëlle Jean, granted the Prime Minister's request to prorogue Parliament. This decision was controversial; some argue it was the correct action, while others argue she should have denied the request. Did the Governor General make the correct decision?

In order to evaluate the Governor's decision, it is necessary to appreciate the responsibilities and powers of their office. Formally, the responsibilities of the Governor are to protect the Canadian Constitution, to actively avoid political interposition, and to enable Canadian political activity. These responsibilities are actualized by the Governor's powers. The Governor's powers arise from the written Constitution, and are regulated by unwritten Constitutional conventions.

By authorizing prorogation, the Governor selected the best option for fulfilling her Constitutional duties and respecting Constitutional conventions. Hence, this paper will argue that yes, given the information she had at the time, the Governor General was correct to grant the Prime Minister's request for prorogation, because her decision honoured and reinforced Canadian political activity.

The decision of the Governor General will be examined through the prism of Constitutional conventions and Canadian history, beginning with a description of the office of the Governor General.

Powers and Functions of the Governor General

In order to understand the Governor's powers, we must understand their source: the Canadian Constitution. The Constitution is an association between a federal state and a monarchy, and the legal expression of executive power over the state is the Crown. The Governor General is the resident representative of the Crown in Canada, and as such, the Governor is the acting head of state. The primary duty of the Governor is to defend the Constitution and to enable political activity that is in accordance with it. In order to fulfill this duty the Governor must ensure that a Prime Minister and Cabinet are installed at all times. Specific powers of the Governor include: the ability to summon Parliament; prorogue Parliament; dissolve Parliament; swear in Cabinet Ministers; appoint a Prime Minister; and dismiss a Prime Minister.

The Library of Parliament states that "[u]nder the Canadian Constitution, the Governor General possesses enormous powers; but, by convention, these are exercised only on the advice of the Prime Minister and Cabinet. In a constitutional monarchy, except in rare cases -- usually associated with election results, the dissolution of Parliament and the formation of a government -- the Governor General has no independent discretion, and must follow the advice tendered." Furthermore, "the Governor General must generally follow the advice of the Prime Minister," "until that Prime Minister loses the confidence of the House or is defeated in an election."

The crucial detail here is that the Governor has great powers that are exercised under the advice of the Prime Minister.

Having described the Governor's powers, let us further explore the rules that regulate these powers.

Constitutional Conventions

Constitutional conventions are discussed in scholarly works and in Parliamentary documentation, but there is no single accepted resource that enumerates all conventions past or present. As a result, the powers of the Governor cannot be definitively understood in any single way. This leaves much room for creative interpretation, wholesale misinterpretation, deliberate misrepresentation, and expedient modification. This is not however entirely undesirable. The reason the Constitution employs unwritten conventions as a guide to action is because social standards are dynamic. The unwritten nature of conventions permits conventions to evolve with changing social standards, thus preserving less dynamic political standards, and avoiding regular or excessive modifications to the written portions of the Constitution. "[C]onventions transform the monarchic legal framework into a modern parliamentary democracy [and] arise in order to protect basic principles of the constitution, and it is the need to give life to these principles that creates the obligation to obey conventions."

Conventions are widely agreed upon, however they are not universally agreed upon, and even Constitutional scholars disagree on the appropriate interpretation and prioritization of conventions. Understanding this fact is important when evaluating political decisions.

The crucial detail here is the equivocal character of conventions.

Having explained the nature of conventions, let us now outline the prorogation of 2008 and consider how some of the more prominent conventions weigh upon the Governor's decision.

Well-known Constitutional Conventions and the Prorogation of 2008

Prior to discussing conventions, it is necessary to highlight the key points of the prorogation affair of 2008. The 2008 election yielded a minority Conservative government. On November 27th 2008, the Conservatives released their Economic and Fiscal Statement (ESF) during their speech from the throne. The government won a confidence vote after presenting their statement, however all three opposition parties opposed the ESF because it planned to dispense with quarterly financial subsidies for political parties, and because it lacked an economic stimulus plan. The opposition tabled a confidence motion, and the government announced that Opposition Day was to be December 1st. On November 28th, the government was unable to reach an agreement with the opposition regarding the ESF, and on the 29th the government announced that Opposition Day would be delayed for one week. On November 30th, the Liberals and NDP announced a formal agreement to organize a coalition, with the support of the Bloc Quebecois for eighteen months. On December 1st, the Liberals and the NDP registered their intention to vote no confidence and form a coalition in a letter to the Governor General, Michaëlle Jean. On December 3rd, the Governor returned to Canada from a trip to Europe, and on December 4th she met with Prime Minister Stephen Harper who requested that she prorogue Parliament until January 27th 2009, which she approved.

The first convention to be examined in relation to the events described above is the advice convention. As previously noted, this convention dictates that the powers of the "Governor General ... are exercised only on the advice of the Prime Minister and Cabinet," and "only in rare cases -- usually associated with election results, the dissolution of Parliament and the formation of a government" (emphasis mine) -- might the Governor act independently; in all other cases "the Governor General has no independent discretion, and must follow the advice tendered." This convention is important because the points discussed have become both the subject and buttress of political debate in the wake of prorogation. Addressing these points: 1) the Conservative party was elected into a minority and there was no legal dispute regarding election results; 2) though the full contents of the Prime Minister's request were not published, at no time was dissolution mentioned as a probable option by the Governor General; and 3) regarding the election of 2008, a government would have been formed if the party with the most seats was able to win its first test of confidence, which the Conservatives did. Hence, the advice convention was satisfied by the Governor's decision.

The second convention to be examined is the right to govern convention, which concerns the government's right to remain in office. The Library of Parliament states that "[a]ll constitutional authorities are agreed that a government has the right to remain in office to meet the legislature when an election results in no majority position for any party." The right of the Conservatives to remain in office after coming out of an election with a minority has been questioned, however the job of the Governor "is always to protect Parliamentary democracy and the Parliament that the people have elected [has to have] a chance to see if it can support a government." The text quoted here comes from Parliamentary documentation, and clearly states that a government has the right to attempt transacting business regardless of the fact that they have won a minority of seats rather than a majority. Hence, the right to govern convention was satisfied by the Governor's decision.

Perhaps the most contentious convention is the confidence convention, which states that "[f]rom the time the Governor General appoints a Prime Minister until that Prime Minister loses the confidence of the House or is defeated in an election, the Governor General must generally follow the advice of the Prime Minister." "Constitutional authorities generally agree that a Governor General may dismiss a government if it has been defeated on a clear vote of confidence." Commentators have reasoned that the coalition's intent to vote no confidence weakened the position of the government to such an extent that the government lost its right to remain in office, and that "constitutional principles [have been] imperiled." The inescapable historical fact remains: the first test of confidence during the speech from the throne had been won, and a non-confidence vote had not occurred. Hence, the confidence convention was satisfied by the Governor's decision.

The crucial detail here is that critical Constitutional conventions were respected by the Governor's decision to permit prorogation.

Having examined conventions within the framework of contemporary politics, let us now examine historical considerations that bear on the observance and application of conventions.

Historical Precedents

Though many experiences contributed to the structure of today's conventions, two events are of particular relevance to the prorogation of 2008: John A. Macdonald's prorogation request in 1873, and William Lyon Mackenzie King's prorogation request in 1926. These events will be summarized, and followed by a discussion of their pertinence to the 2008 prorogation.

In 1872, the Conservatives had been elected to government; however in 1873 Prime Minister John A. Macdonald was implicated in a scandal. Macdonald requested that the Governor General prorogue Parliament, because Macdonald was facing certain defeat in a want-of-confidence vote in the upcoming Parliamentary session of August 1873. An alternative government was arranged, headed by Alexander Mackenzie, and with the support of many Conservatives who had abandoned the Tories after the scandal. The Governor accepted the Prime Minister's advice and Parliament was suspended until October. When Parliament resumed, Macdonald resigned rather than face a loss of confidence in Parliament.

In 1925, the incumbent Liberal government won 99 seats and the Conservatives won 116, however the Liberals enjoyed the support of enough seats belonging to other parties that they might maintain control. In 1926, support from other parties waned, and faced with certain defeat, Mackenzie King requested that the Governor General dissolve parliament and call an election. The Governor "refused the dissolution [because] there appeared to be an alternative government capable of governing [and] it was less than a year since the previous election [and] the government was almost certain to lose" a pending censure vote.

In these two cases there had been a recent election, a non-confidence vote was imminent, and alternative government existed; just as in 2008. The difference between the two historical cases is that in 1872 the Governor permitted prorogation, while in 1926 the Governor denied dissolution. The principle uniting these two decisions is the protection of Parliamentary democracy. This principle protects both government and Parliament; the Governor must ensure that a duly elected government is given the best chance when attempting to transact business in Parliament, while at the same time ensuring that government remains responsible to a duly elected Parliament. In 1872 the Governor gave the Prime Minister a chance to assemble a plan in order to better equip him to face Parliament, while in 1926 the Governor gave Parliament a chance to attempt to transact business with government.

The issue at hand is stability. In both cases, the Governor did their best to provide both government and parliament with an opportunity to work together from a stable basis. This is the principle guiding the Governor General, and these historical precedents bear directly on the prorogation of 2008, in particular the prorogation of 1872, though it is notable that Harper was in a stronger position to request prorogation than Macdonald because Harper had not been implicated in a scandal.

In 2008, the Governor's choice to permit prorogation stabilized the political environment, while remaining consistent with the Constitution and Canadian history.

Conclusion

Prorogation was preferable in 2008 because the duly elected government was given an important chance to compose itself, and if the government fell it would have done so only after being given every opportunity to govern. The government remained responsible to Parliament, and may well have been forced to resign once Parliament resumed. The Governor's decision is reinforced by the facts that the coalition disintegrated once Parliament reconvened, and that the government remains in power.

Having surveyed the Governor's powers, Constitutional conventions, and relevant historical precedents, we may now recognize that the granting of prorogation was not a political stay of execution, but was instead a successful attempt to stabilize government. Accordingly, the Governor's decision was the correct one in protecting Parliamentary democracy, in its Canadian form.