Battle Royal

by David Johnson

  But this is not to say that prime ministers and their governors general have never had occasions to discuss matters of state in such a manner that the prime minister could speak confidentially to the vice-regent, and he or she could offer advice, encouragement, or warnings in return. Prime ministers as diverse as Wilfrid Laurier, Robert Borden, William Lyon Mackenzie King, Louis St. Laurent, Lester Pearson, and Pierre Trudeau, at one time or another, all spoke highly of the opportunities they had to confidentially discuss difficult matters of public policy with their governors general. “The Canadian Governor General,” Laurier said, “long ago ceased to determine policy, but he is by no means, or need not be, the mere figure-head the public imagine. He has the privilege of advising his advisers, and if he is a man of sense and experience, his advice is often taken.”[20]

  In a similar vein, Pierre Trudeau spoke of the warm relationship he had with Governor General Roland Michener: “I recall with personal gratitude the many Wednesday nights since 1968 when you have offered me your encouragement and counsel on the nation’s business. I can testify that you are a man who knows, better than most.”[21] Such meetings with the vice-regent are, of course, strictly private and personal, with the prime minister assured that nothing said in these meetings will ever become public. In a breach of protocol, likely done with the prime minister’s consent, Adrienne Clarkson has publicized a significant exchange between Prime Minister Chrétien and herself. When she was governor general, Chrétien notified her in advance of his decision not to commit Canadian troops to the American-led invasion of Iraq in 2003. As she expresses in her autobiography: “[H]e told me before he was to announce it in the House and I encouraged him. The Governor General is commander-in-chief of the Armed Forces — one of the most precious of the vice-regal duties — and he knew it was important that I know his decision before he rose in the House to announce it.”[22]

  Soft Power Meets Hard Realities: Tensions with the Provincial Crowns

  The relationship between Canadian prime ministers and their governors general does not come close in its profundity to that of the Queen and her British prime ministers. However, the bond is even weaker for provincial lieutenant governors. As early as 1934, Governor General Vere Ponsonby, Earl Bessborough, expressed his thoughts on the matter to George V:

  In several provinces there is public talk of doing away with the Lieutenant Governors as an economy. Personally I see little use in having nine Lieutenant Governors as well as a Governor General. They have no personal contact with Your Majesty whatsoever. Though most respectable and patriotic men, they have no training, no background, and are too well-known locally to be able to impress themselves on the population as being really personal representatives of the Crown.[23]

  Nothing came of Earl Bessborough’s complaint about his provincial vice-regal counterparts. To eliminate the positions of the lieutenant governors would have meant amending the British North America Act, 1867. However, his going right to the king reveals some of the deep problems facing lieutenant governors. Just as many governors general suffered from the perception, held by prime ministers and their confidants, that they were either too British or too closely tied to the former government, lieutenant governors have always struggled with the fact that they are formally appointed to their provincial office by order of the governor in council, subject to the advice of the prime minister. This reality has never been lost on provincial premiers. Nor has the understanding that many provincial vice-regal appointees historically were men with pronounced political affiliations to the federal government that appointed them. All too often, prime ministers have treated the opportunity to appoint a lieutenant governor as a time to indulge in partisan patronage, rewarding former loyal politicians — senators, members of Parliament, members of the provincial legislature — with plum sinecures, regardless of their ability to impartially represent the provincial head of state.

  Factor in the additional reality that Canadians have long demonstrated a tendency to counterbalance the party in power federally with other parties provincially. In this practice lies an excellent recipe for frosty relations between a lieutenant governor and his or her premier. Much of the history of Canadian federal-provincial relations is of the party in power in Ottawa facing concerted opposition from most of the country’s premiers, with many of these premiers representing parties and ideological viewpoints contrary to that of the current federal government. As premiers came to see battling Ottawa as a vital part of their role, it is not surprising that many of these leaders came to treat their lieutenant governors as merely ceremonial figures, required to read the speech from the throne, give royal assent to provincial legislation, and engage in charitable work, but generally not to be consulted respecting the development of public policy. “The decline in the influence of the Lieutenant Governor … need not have been so rapid and so complete,” political scientist John Saywell argued in 1957, “if one elementary maxim had been learned and scrupulously followed: the monarch may be politically biased but must be politically neutral.… To confide in the Lieutenant-Governor was too often like giving secrets to the enemy.… [H]e was never beyond suspicion.… [W]hile normal constitutional development reduced the Lieutenant-Governor’s power, political partiality destroyed his influence.”[24]

  Just as in London and Ottawa, when provincial first ministers do meet with the Queen’s representative, the details are strictly confidential. As Christopher McCreery, private secretary to the lieutenant governor of Nova Scotia, has outlined, these meetings are “all in camera, rarely with a formal agenda prepared, no minutes of meetings, and no staff present.” The purpose of these sessions is to allow the two principals to freely discuss matters of public importance. The premier is placed in the position to gain any wisdom or insight he or she may wish from the vice-regent. “We are not privy to the actual details of the discussions,” writes McCreery, “nor would it be advisable for such things to be made public until years after. But it would be difficult to justify taking an hour or two out of the very active schedule of the premier and the Lieutenant Governor if the discussions were limited to the weather and the next NHL draft.”[25]

  McCreery is likely overplaying the significance of these meetings. If most premiers really found the meetings invaluable, we would see more of them across all provinces. Only in British Columbia, Nova Scotia, and Prince Edward Island are such meetings a regular occurrence. We have perhaps seen a little, but telling, glimpse of such discussions coming from former Newfoundland and Labrador lieutenant governor John Crosbie. In speaking with journalist John Fraser, the only complaint Crosbie voiced about his job was with respect to the “studied inability” (Fraser’s words) of his premier, Conservative Danny Williams, to understand that the lieutenant governor has the right “to be consulted, to warn, and to encourage.” “Danny,” said Crosbie, “only likes the encourage part.”[26]

  The Enduring Crown Prerogative

  Since the sovereign’s chief role is to act as head of state, most of the Queen’s duties and those of her vice-regents are ceremonial, educational, promotional, charitable — and always non-partisan. The Crown-as-monarch is called upon to represent all that is good about the country or province and to encourage people to be both better citizens and better persons. If and when the sovereign or a vice-regent is called upon to exercise one of the existing Crown prerogatives, he or she will usually do so subject to the guiding advice of a first minister, in keeping with the traditions of responsible government. But this is not always the case.

  The logic of parliamentary government necessitates that some components of the Crown prerogative must be personally retained by the sovereign and her vice-regal representatives. These elements are the reserve powers of the Crown: powers subject to the sole discretion of the Crown-as-monarch that can be exercised without the advice of a first minister. The implementation of these powers is extremely rare and hugely controversial. During these times of extraordinary circumstances in Canada,
the governor general or lieutenant governors may be called upon to break parliamentary deadlocks, prorogue or dissolve parliaments, dismiss a first minister and appoint another one in his or her place, or order the holding of new elections. In making these exceptional and historic decisions, the vice-regents are expected to exercise these powers in such a fashion as to ensure the continued functioning of responsible government and parliamentary rule. And yet, they use individual discretion and judgment; they are not obligated to obey the advice/orders of any first minister. In short, in these cases and during these times, the representatives of the Crown can exercise real political power in dramatic fashion. It is to these dramas about “hard power” that we turn to next.

  Chapter 5

  do the right thing: hard power and tough choices

  “[N]ine times out of ten a Governor General should take his Prime Minister’s advice…. But if the advice offered is considered by the Governor General to be wrong and unfair, and not for the welfare of the people, it behoves him to act in what he considers the best interests of the country.”

  — Julian Byng, governor general of Canada, in a letter to George V, June 29, 1926.

  “After considering the opinions of the constitutional experts whom I consulted regularly, I decided that, if the government lasted six months I would allow dissolution. 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.”

  — Adrienne Clarkson, governor general of Canada, discussing her options at the beginning of the Paul Martin minority government in 2004.

  The global financial crisis of 2008 struck a heavy blow. The world economy buckled in a way it hadn’t since the Great Depression of the 1930s. Its impact on Canada was substantial, and on December 4, 2008, Prime Minister Stephen Harper visited Rideau Hall to meet with Governor General Michaëlle Jean to ask for help. In the wake of the deepening crisis, he felt he needed more time to prepare a budget. He would ask Madame Jean to suspend the parliamentary session — to prorogue Parliament — until the end of January. But the governor general had more to think about than just a recession.

  Much closer to home was a raging constitutional crisis. Although Prime Minister Harper was seeking time to develop a budget, his more immediate anxiety was avoiding a confidence vote on his government scheduled for December 8. His government faced a number of problems in the fall of 2008. One was that in the federal election held in October, his party had only won a minority government. True, his Conservatives had won the most seats in the House of Commons, but the Liberals, New Democrats, and the Bloc Québécois had the power to bring him down. And in early December they wanted to do just that.

  On December 1, the leaders of the three main opposition parties issued a public statement announcing they had lost confidence in the Harper government and they would defeat it on December 8. The Liberals and New Democrats also stated that they had agreed to form a coalition government, led by Liberal leader Stéphane Dion, with New Democratic Party (NDP) leader Jack Layton serving as deputy prime minister. Finally, the Bloc Québécois promised to support this new government in all confidence votes for a period of eighteen months. The governor general was thus presented with a viable government-in-waiting once the Harper administration was defeated.

  Stephen Harper, however, was not one to take seemingly inevitable defeat as inevitable. He denounced the planned coalition government as unconstitutional, representing an “undemocratic seizure of power” by the parties that had just lost the October election. And worse, he said, the Liberals and New Democrats would “enter into a power-sharing coali­tion with a separatist party,” something “they promised voters would never happen.”[1] Rallying opposition to the idea of a coalition was one thing; evading the vote of confidence was quite another. The prime minister knew that if that vote went ahead as planned, his government would be defeated and, in all likelihood, his political career would be over — hence his meeting with the governor general on December 4 and his request for prorogation.

  That Harper had to “request” prorogation is significant. The actual legal power to order prorogation rests solely with the governor general, being one of the reserve powers of the Crown prerogative, exercisable at the individual discretion of the governor general and without the need for the vice-regent to necessarily follow the “advice” of the prime minister. Michaëlle Jean was presented with a rare opportunity to exercise real political power. If she accepted the prime minister’s advice, Parliament would be suspended immediately, the pending vote of non-confidence would never transpire, the Liberal–NDP coalition government would not arise, and the Harper government would continue in office. If she rejected the prime minister’s advice, the existing session of Parliament could continue, leading to the vote of non-confidence on December 8. This vote would result in the defeat of the Conservative government. Stephen Harper would have to resign, or possibly be dismissed as prime minister, and the governor general would call upon the leader of the opposition, Stéphane Dion, to form a new government.

  Madame Jean had much to think about during her meeting with the prime minister. Whatever she decided would make history. We know from media reports that the governor general and the prime minister spoke together for over two hours. We also know that at one point Governor General Jean left the prime minister and went to a separate room to confer with her constitutional advisers. One can only imagine the thoughts that were running through the mind of Stephen Harper during this hiatus. A man known for his “command and control” personality was, at that point, no longer in control of his political destiny.

  When the governor general returned, however, she informed her prime minister that she would grant his request for prorogation on the proviso that Parliament reconvene on January 26, 2009, and that a budget be promptly introduced and quickly followed by a vote of confidence. All of this happened in due course. The new budget was passed with the support of the Liberal Party, then led by Michael Ignatieff (Dion had resigned in December), the crisis came to an end, and the Harper government continued in office, winning re-election with a majority in 2011.

  This constitutional drama unmasks a political battle of wills between parties and leaders. It also offers a vivid illustration of the continuing and very real hard powers — the reserve powers — held by the Crown in Canada.

  The Prerogative of the Crown and Responsible Government

  Responsible government entails four key principles. First, the country or province must have a government that can advise the Crown-as-monarch on the exercise of her or his duties; this government must be responsible to the House of Commons or legislative assembly from which it arises. Second, this government must be led by a prime minister or premier who can serve as head of government, acting in the role of Crown-as-executive in contrast to the sovereign and her vice-regents acting as Crown-as-monarch. The Crown-as-monarch must, as a general rule, not be placed in a position where she or he is called upon to independently make political and governmental decisions; most decisions should be made by democratically elected governments. Third, this first minister must be the leader of the party commanding majority support from among the elected members of a parliament or legislative assembly. Only by possessing and maintaining such confidence within a parliamentary assembly does a first minister earn the right to be appointed as prime minister or premier. Fourth and finally, once this person is appointed as the first minister, the representative of the Crown — whether the sovereign or a governor general or a lieutenant governor — and all other public officials serving within the executive branch of government are constitutionally obligated to follow the “advice” of this first minister.

  Given the logic of responsible government, the exercise of the powers of the Crown-as-monarch rarely elicits question or controversy. Most parliamentary elections tend to result in majority governments, meaning that
the party winning the election has done so by winning an outright majority of the seats in the newly elected legislative body. When a single party has come to control a majority of the members in the parliamentary assembly, the consequent duty of the vice-regal representative vis-à-vis a first minister is crystal clear.

  The Reserve Powers and Minority Governments

  Any constitutional clarity respecting executive powers can turn murky as soon as the simplicity of majority government gives way to the complexity of minority government. A minority government, or, as the British would say, a “hung parliament,” arises when no single party wins a majority of the seats in the legislature following an election. But the Crown needs a government, and under the principles of responsible government, this government and its first minister need to command the confidence of the majority of the members of the legislature. In these circumstances, minority governments take shape, with two or more parties agreeing to work together to sustain a government in the parliamentary assembly.

  In most instances in Canada, both at the federal and provincial levels, the existence of a minority government situation has not tended to result in constitutional crisis requiring the intervention of the governor. Usually when elections result in hung parliaments, the parties determine which of them can sustain a first minister and his or her government within the legislature. Of the eleven minority governments in Canadian federal history, most were based on informal alliances between the governing Liberals and a left of centre third party (the Progressives from 1921–26 or the New Democrats from 1963–68, 1972–74, and 2004–2006). On other occasions, usually when a Conservative Party formed the government, as with the minority governments led by John Diefenbaker (1957–58, 1962–63), Joe Clark (1979–80), or Stephen Harper (2006–11), prime ministers gained legislative support and won confidence votes on an ad hoc basis.