Battle Royal

by David Johnson

  In light of these considerations, according to Franks, the prime minister’s request for prorogation was reasonable. It would allow for a cooling-off period — a time for less-heated heads to prevail while the Harper government prepared its budget. Following a brief seven-week period of prorogation, Parliament would reconvene in late January and would immediately be presented with a new budget, which would provide the House of Commons with the opportunity to decide whether it had confidence in the Conservative government. If the coalition could survive this brief period of prorogation, it could then vote down the government. If, however, it could not stay united, that would be proof of its inability to ever act as a viable government.[8]

  In his appreciation of the governor general’s action, Franks also notes that she clearly had to assess an ugly political scenario. In the days leading up to his meeting with the governor general, Harper and his Conservative Party had vilified the idea of a Liberal–New Democratic coalition. They called it an “illegitimate” seizure of power, an undemocratic manoeuvre to make a weak and unpopular Stéphane Dion, the biggest loser of the most recent election, the prime minister, with his shaky coalition requiring the support of “separatists” to stay in power.

  Given the prime minister’s combative approach to politics, Franks believes that had Madame Jean vetoed his request for prorogation, he would have refused to resign. Further, he likely would have stated to the media camped outside Rideau Hall that an unelected governor general appointed by the previous Liberal government had rejected his legitimate request for a short parliamentary time out, and he would have faced the House of Commons on the following Monday. At that point, when his government was defeated, he would have returned to Rideau Hall asking for dissolution of Parliament and a new general election to enable the people of Canada to decide who should form their government. When the governor general would have refused this request, fully consistent with the precedents of 1926 and 1985, Harper would have resigned, and Dion would have been called upon to form a government. The Conservatives would have continued to pillory this new government as weak, illegitimate, unconstitutional, a direct threat to the unity of the country, and an insult to Canadian democracy. And the governor general would be directly implicated in allowing this travesty of political justice to occur.

  Peter Russell, one of Madame Jean’s advisers on the day in question, supports Franks’s assessment of the challenges facing Madame Jean. Russell has stated that the governor general was concerned about the likelihood of the Conservatives launching media attacks against the constitutional legitimacy of a Liberal–NDP coalition government, with her office also finding itself in the crosshairs had she refused Prime Minister Harper’s request. “Can you imagine,” Russell has said, “anyone sitting there thinking ‘If I say ‘no’ to this man we’ll just have a nice time and swear in Mr. Dion and life will go on?” To Russell, a vice-regal rebuff of the prime minister would have resulted in a massive negative advertising campaign launched by the Conservative Party of Canada, claiming that the new Dion–Layton government had come to power as a result of an “illegitimate transfer of power” supported by separatists and improperly sanctioned by the governor general.[9]

  Peter Hogg, who was also in the antechamber with Madame Jean as she considered her options, has been unwavering in her defence. The governor general, he stresses, was called upon to exercise discretionary judgment, and she did so with great “soundness” of wisdom. Hogg suggests that the governor general was being asked to assess the political dynamics the country was facing, including the viability of the proposed Liberal–NDP coalition. Although Madame Jean “could hardly predict the disintegration of the coalition that occurred less than two months later … it was reasonable,” Hogg writes, “for her to conclude that the coalition was likely to be an unstable alternative government.”[10] Hogg also responded to his fellow advisers’ claims by downplaying Russell’s interpretation of the partisan concerns facing Madame Jean. “That issue of the Tory propaganda machine,” claims Hogg, “did not figure in anything that I am aware of. I do not know exactly what moved her but I don’t think that was one of the factors.”[11]

  In defending the governor general’s ultimate decision to grant prorogation, Russell praised her ability to make a difficult political decision. “I think her reasons were that parliamentary democracy is going to be protected sufficiently to avoid a dangerous and dreadful crisis by giving an affirmative answer to the Prime Minister.” Russell was quick to assert that Madame Jean in no way succumbed to the pressure she was facing from a prime minister known for his bullying tactics. “She didn’t cave,” said Russell. “She made a tough, brave decision. There was no easy decision that day.”[12]

  The merits of Madame Jean’s decision that day have not gone unchallenged. Her leading critic is political scientist and constitutional expert Andrew Heard, and his assessment is thought-provoking and disturbing. Heard’s starting point is that on December 1, 2008, the day the combined opposition parties announced their agreement to bring down the Conservative government, the ability of Prime Minister Harper to command the confidence of the House of Commons was severely called into question. A confidence vote was scheduled for December 8, and on that day the Harper government would be defeated and the new coalition government was prepared to assume national leadership. Given these facts, Heard argues that Harper’s request for prorogation was itself unconstitutional and that Madame Jean was wrong to grant prorogation.

  From Heard’s perspective, the governor general only “has a duty to act on any constitutionally-valid advice, not any and all advice a prime minister might offer.”[13] Although the prime minister’s party had not yet lost a vote of confidence in the current House of Commons, the formal agreement of the opposition parties was a clear indication of that intent. As such, Stephen Harper had lost the right to offer commanding advice to the governor general. To make matters worse, when the prime minister met with Madame Jean on December 4, he was asking for a prorogation that would directly forestall the ability of the House of Commons to vote non-confidence in his government. If the role of Crown representatives in such periods of parliamentary crises is to enable democratically elected representatives to resolve their differences through parliament­ary means, the constitutionally best course of action would have been for the governor general to deny Prime Minister Harper’s request for prorog­ation and to inform him that he had a vote with destiny on the eighth of December.

  At this point, two main options would have presented themselves. Either Harper would have tendered his resignation immediately, leading to the governor general calling upon Stéphane Dion to become prime minister. Or Harper would have fought his demise all the way. The Conservatives would have objected to their defeat on the non-confidence motion and called the governor general’s actions a reckless betrayal of trust resulting in the government of Canada being turned over to a Liberal–Socialist coalition of losers. (There was also the possibility, as suggested by Kory Teneycke, Prime Minister Harper’s director of communications, that had Madame Jean refused his advice, the prime minister would have contacted Buckingham Palace and asked the Queen to dismiss the governor general and appoint a new one, hand-picked by the prime minister.)[14]

  Either of these options leads to the conclusion that the governor general would have had to make a clear political assessment respecting the validity of the proposed Liberal–New Democratic coalition and its relationship to the Bloc Québécois. As with Franks and Russell, Heard accepts that in such circumstances the representative of the Crown is required to carefully investigate whether there is an alternative and viable government and prime minister capable of gaining and maintaining the confidence of the legislature for a significant period of time. If so, and if the most recent election has occurred within the past six to eight months, then the governor is fully within her or his rights to call upon the leader of the opposition to form a government. In these circumstances, the governor is no
t called upon to directly pass judgment on the ideological and policy quality of the new government but solely on its ability to work with another party or parties.

  In this regard, Heard offers a provocative challenge to the governor general’s supporters. The key vice-regal consideration was whether there was a viable government-in-waiting capable of commanding the confidence of a majority of the members of the House of Commons should the Conservative government resign or be defeated. The assessment here has to be made as of December 4, 2008, the day of the prime minister’s audience with the governor general. Heard cautions us not to allow ex post facto understandings of events that happened after Madame Jean’s decision obscure the political reality the governor general faced on that day. Heard argues that Madame Jean was clearly presented with ample evidence that Stéphane Dion had the agreement of the New Democrats to form a workable coalition government with a set legislative agenda, and that this government would have the formal support of the Bloc Québécois on all matters of confidence for a period of eighteen months.

  Heard also makes the intriguing proposition that had Madame Jean refused the prime minister’s request for prorogation, it is highly improbable that the consequent coalition government would have collapsed within weeks. Rather, the accession to power would have given the new government the status and legitimacy that comes from having authority. It would have been this Liberal–NDP government bringing in the 2009 stimulus budget to address the global recession, and it would have been this government setting the policy agenda, passing its social, economic, justice, and environmental legislation in Parliament, and making appointments to the public service and the courts. And, if the Liberals wished to change leaders in 2009 from Dion to Ignatieff (remember that Dion had promised to step down as Liberal leader just after the October 2008 election), then Michael Ignatieff would have assumed not only the leadership of the Liberal Party but also the title, prestige, and power of the prime ministership.[15]

  The final point in Heard’s criticism of Madame Jean’s decision is that of the precedent it sets for future first ministers. In this case, a prime minister with a dubious claim on the confidence of the House of Commons asked for and received prorogation immediately prior to a confidence vote that he was bound to lose. The parliamentary suspension bought the prime minister time, not only to prepare a budget but also to demonize the proposed alternative coalition government by using media attack ads. The Conservative strategy worked; it will be carefully studied by any future first minister in a minority government situation confronting a similar parliamentary challenge to his or her hold on power. The precedent set here affirms that a first minister facing imminent defeat in the legislature can ask for and receive vice-regal support for the temporary suspension of that legislature, shutting down the one body that can effectively determine the fate of any government between elections, and thereby prevent the democratically elected representatives of the people from deciding whether the current government actually has the right to govern. “Without any substantial challenge to this precedent,” writes Heard, “future prime ministers can claim that they are entitled to suspend parliament at any time, for any reason. By this single action, the governor general has risked gutting Parliament’s ability to exercise its most important duty in a timely fashion.”[16]

  Madame Jean’s prorogation decision in December 2008 was momentous. Not only was it decisive in resolving the immediate parliamentary crisis facing the country, but it also represented an exercise of the Crown’s reserve powers that will be taught in law schools and political science courses in this country and throughout the Commonwealth realms for decades to come. I suggest the governor general’s exercise of political discretion was seriously flawed. She accepted the questionable advice of a prime minister who had effectively lost the confidence of the House of Commons and who was seeking prorogation for the ultimate reason of avoiding a vote of non-confidence that he knew he would lose. And she failed to allow the existing House of Commons to establish a coalition government that a majority of its members wished to see come into being. Rather than avoiding interference in the process of democratic governance, Madame Jean’s actions did just that. More likely than not, as Russell suggests, she was fearful of the partisan attacks she would face if she said “no” to Stephen Harper. In contrast to Russell’s interpretation of her actions, I maintain the governor general conceded to a political bully, intimidated by the avalanche of tendentious and unfounded invective that would be hurled her way.

  From this perspective, we witness a representative of the Crown being called upon to exercise the reserve powers and make an explicit political decision of historic consequences. Then we observe her rendering an unwise decision of questionable merit, setting a terrible precedent for the future. Nevertheless, the decision was hers to make, and it was discretionary. While the prime minister may be accused of offering unconstitutional advice to the governor general, and even leading her and her advisers to fear the partisan media attacks that would be coming their way if they refused him, Madame Jean was free to accept or reject this advice. She was also free to assess the political situation confronting her as she deemed fit; she was free to analyze the strengths and weaknesses of both the existing government and its prime minister in comparison to those of the proposed coalition and its leadership, to gauge the weight and influence of any past precedent to the current circumstances, and to assess the public reaction to her eventual decision. This freedom of action is the nature of a discretionary political decision, and once made by a representative of the Crown, the decision is lawful and constitutional. But it may still be considered unwise and impolitic.

  Case #5: British Columbia’s New Government, 2017

  The political scene in British Columbia is always interesting, and the provincial election in the spring of 2017 was no exception. After a hotly contested campaign pitting the incumbent Liberal Party led by Premier Christy Clark against the New Democrats championed by John Horgan, and the Greens under the leadership of Andrew Weaver, British Columbians went to the polls on May 9. Election night was a nail-biter. After long hours of counting, British Columbians awoke to the news that they were facing a hung legislature — the Liberals had won forty-three seats, the NDP forty-one, and the Greens three. With the legislature comprising a total of eighty-seven seats, a party needed to win forty-four seats to have a majority. After recounts confirmed the election night results Premier Clark announced that she would convene the new legislature in June, with its first order of business being the Liberal government’s throne speech.

  Prior to the legislature meeting, however, John Horgan and Andrew Weaver announced on May 29 that the New Democrats and Greens had entered into an agreement whereby the Greens would support an NDP minority government on all confidence motions in return for New Democratic legislative support for progressive policies respecting the environment, social welfare, and election campaign finance reform[17] — shades of the Liberal–NDP Accord in Ontario in 1985. The die was cast.

  The legislature convened on June 22 for the Speech from the Throne, and on the evening of June 29 the New Democrats and the Greens combined to declare non-confidence in the throne speech by a single vote. At this point Premier Clark recessed the legislature and went to visit Lieutenant Governor Judith Guichon at her official residence. The media was camped outside eagerly awaiting news. Would Christy Clark resign? Or would the lieutenant governor dissolve the legislature and call for new elections on the grounds that an NDP–Green working arrangement with a combined one-seat majority was simply too precarious to sustain a viable government?

  The meeting between Premier Clark and Madame Guichon lasted for almost ninety minutes and Christy Clark has since confirmed to the media that she did advise the lieutenant governor to call new elections. “I did ask for the dissolution of the house,” she stated, stressing that she had warned the vice-regent about the likely inability of Mr. Horgan to form a viable and stable minority with the Gr
eens based upon such a razor-thin legislative majority. Given that an NDP government would also have to appoint a speaker from their ranks, meaning that the combined NDP-Greens and the Liberals would be deadlocked on all legislative committees, and that every motion of confidence in the legislature would be decided by a single vote, there was real reason to wonder how sustainable an NDP government would be. “I told her that,” said Premier Clark, “and I talked to her about that and when it became clear that I needed to ask for dissolution, which she made very clear, that I had only two choices [to ask for dissolution or to resign], I did ask for dissolution.”[18]

  At this point Madame Guichon declined to accept this advice. This action was taken presumably on the grounds that Premier Clark had lost the confidence of the British Columbian legislature and hence her commanding authority to offer binding advice; that this legislature should be given the opportunity to decide its own fate; and that Mr. Horgan and the NDP should be afforded the chance to see if they could form a viable government. So, Premier Clark resigned, the lieutenant governor called upon John Horgan to pay her a visit within minutes of the former premier leaving the official residence, and on the evening of June 29, 2017, Madame Guichon appointed Mr. Horgan as the thirty-sixth premier of British Columbia. Once again we see the very real powers held by vice-regents in circumstances with minority governments and questions of confidence, and where the decision must be made to call new elections or to give parliamentary bodies the chance to show they can fulfill their public duties.

  Going It Alone: Refusing Advice and Dismissing Governments

  We now enter a realm where, fortunately, the discussion of Crown power is much more hypothetical than real. We enter a realm where former prerogative powers remain but are seldom, if ever, exercised, because the functioning of responsible government and modern liberal democratic parliamentary politics offer no reason for these powers to be used. We now look at the Crown, in the words of Eugene Forsey, as “the guardian of the Constitution.”[19]