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Who gives the Governor General advice?

After all, there certainly isn’t a playbook for times of trouble—like now


 

Who gives the Governor-General advice?

In the summer of 1999, Adrienne Clarkson and her husband John Ralston Saul spent a long—and presumably rather dull—week prowling the stacks of the Metro Toronto Reference Library, looking for the type of books that few people read, and even fewer write. The former television personality had accepted Jean Chrétien’s offer to become Canada’s next Governor General. And even though the appointment wouldn’t be made public until early fall, Clarkson, a keener of long-standing, wanted to get a better idea of her new job’s duties, powers and responsibilities. It was tough sledding. “Luckily, we already owned former Governor General Vincent Massey’s autobiography, and a collection of his speeches, and The Biography of Georges Vanier, by Robert Speaight,” she writes in her 2006 memoir Heart Matters. “But there was absolutely no literature on what a Governor General actually did once installed in Rideau Hall that wasn’t connected simply to the opening and closing of Parliament, the reading of the Speech from the Throne, receiving state visitors and ceremonies like the Order of Canada.”

Pity then, poor Michaëlle Jean, the current holder of the office. The Constitutional dilemmas she faces are all too real: Should she acquiesce to a Prime Minister’s request to prorogue Parliament just so he can stave off a vote of non-confidence? Can she give an opposition coalition (headed by a lame-duck Liberal leader who absorbed an electoral drubbing only weeks ago) a shot at power? The kind of tomes that might guide her through such a political crisis have hardly proliferated over the past decade. As Clarkson notes, this is the kind of stuff that the framers of the BNA Act and the Constitution were a little vague on. Namely, “reserve” (or rather default) powers that allow the Governor General to act on his or her own initiative to keep the government stable and functioning. They have rarely been used, and never in this exact situation. “It’s typically Canadian that this exercise of the reserve power is vague, uncertain, and to some degree debatable,” writes Clarkson, putting a positive spin on what currently looks to the rest of the country—and the wider world—like chaos. “What could be more Anglo-Saxon? The power all lies in the unspoken, the unexercised.”

Jean is not without resources. Her supporting bureaucracy, the Office of the Secretary of the Governor General, has some in-house expertise on Constitutional matters. There are briefing books, and the files of G.G.’s stretching back to 1867. (For example, when it looked like Paul Martin’s newly-sworn-in minority might fall in 2004, Clarkson did some research and pre-determined that she would give the opposition a crack at governing.) And Jean can seek counsel from the Privy Council Office, the Department of Justice, or even her “deputy,” the Chief Justice of the Supreme Court. Outside academics and lawyers are also on speed-dial. “In this particular case, I can confirm that the Governor General has sought outside advice,” says her spokesperson, Lucie Caron.

Ted McWhinney, a Constitutional expert and former Liberal Member of Parliament, says he has weighed-in for Governor Generals and their provincial counterparts on several occasions in the past. “The rules are that you don’t ask for a fee, and that your opinions are confidential.” But he maintains the vast majority of what Jean will be hearing is of dubious utility. “There’s virtually no writing of any value—based on empirical studies from here or abroad,” he says. “Most of the stuff she’s getting is just top of people’s heads.” Even the past experiences of other Commonwealth countries will be of little practical assistance. The closest parallel might be an Australian crisis in 1975, when a serious parliamentary deadlock prompted Governor General John Kerr to dismiss Labour Prime Minister Gough Whitlam, and invite the leader of the opposition, Malcolm Fraser to form a government. The move sparked protests in the streets, and Kerr was eventually hounded from public life. “Constitutional law is 50 per cent rules, and 50 per cent high politics,” says McWhinney. “A successful G.G. knows how to maintain that balance. Reading public opinion is crucial.”

One person whom is unlikely to receive a call from Jean is Elizabeth II. Although Canadians still tend to view the Governor General as the Queen’s representative in Canada, the office has been fully independent since 1947. “Even many politicians don’t seem to know that the final authority of the state was transferred from the monarch to the Governor General,” Clarkson wrote in her memoirs. “This means that it is the Governor General who is the guarantor of responsible government and our parliamentary democracy.” It is an arrangement that the Queen seems comfortable with, notes Clarkson. In all their conversations, political or constitutional matters were never raised.


 

Who gives the Governor General advice?

  1. I love how the junior writers at Macleans are stepping up to the plate.

    I suppose one of the most important people M. Jean will seek advice from is Adrienne Clarkson who faced the most recent and most similar situation to parallel what M. Jean faces now.

  2. ““Constitutional law is 50 per cent rules, and 50 per cent high politics,” says McWhinney. “A successful G.G. knows how to maintain that balance. Reading public opinion is crucial.”

    That’s interesting. There has been some vehement commentators here, and elsewhere, about how listening to the people is absolutely not allowed. Don Newman was giving the rally organizers a hard time yesterday about holding rallies, what did they think they were doing!

    It doesn’t surprise me that public opinion matters since elections/governments have to be seen as being legitimate or else our country will quickly go to hell in a handcart.

    “There’s virtually no writing of any value—based on empirical studies from here or abroad … Most of the stuff she’s getting is just top of people’s heads.”

    This gives me pause a bit. Here I had images of GG gathering a bunch of constitutional law people for a gathering to thrash out what to do and it turns out my opinions are just as valid as Forsey’s.

  3. This McWhinney character is way out of line, jwl. That’s like saying that running a murder trial is 50% rules, 50% whim. Just because judges are human, and you and I are both human, it doesn’t follow that you or I should preside over a murder trial.

  4. This political appointee is so far out of her league it would be laughable if it wasn’t so serious. Which CBC employee is next in line for the job?

  5. You are kidding, right jeet. Aren’t inexperienced females sent back to Alaska?

  6. Give it a rest Jeet — it isn’t her fault that the country’s politicians are behaving like imbeciles. Do yourself a favor, read the constitution and try to understand why it is we have a Governor General and how necessary it is to have someone impartial to deal with a situation like this.

    But I am sure idiots on both sides — if you are any indication — will blame her for any decision she makes… she can do no right in this situation… but I trust her and her army of constitutional advisors she has at her behest more than I trust you and other “armchair constitutional experts” who know less about this country than most new Canadians, but who consider themselves wise seers based on the fact that they ingest two Tim Horton’s a day.

  7. Whatever Governor General Jean’s decision is, it’s guaranteed to be both a precedent and controversial.
    God help Canada.

  8. Hopefully constitutional experts and not public opinion!!!

  9. And that’s on Harper.

    However this shakes out, the government must immediately pass legislation affirming the supremacy of the House of Commons on matters of advising the GG with regard to its functioning. Changing the agenda and whether the House is even convened while not maintaining the confidence of the House is at the heart of this crisis.

  10. This government has been defeated since Monday, and intends to govern for two full months while not clearly having the confidence of the House. This is a travesty, regardless of which side of the issue you are on.

  11. I tend to agree that she is in a “Damned if you do and Damned if you don’t” position.

    My own opinion aside, I truly feel sorry for her at this moment. Every eye will be on her tomorrow… or today I suppose. Everyone with expectations and hopes that will turn nasty if they aren’t met.

    One wonders if the PM and more importantly, his Party are asking themselves if this was all worth the the girlish giggle they get out of the outrage of the Opposition. I hope they are re-thinking the person they chose to lead them.

    Back to my own opinion (lol)… I do hope that the GG refuses prorogation. It’s about time Mr. Harper “walked the plank” and had to account for his actions in Parliament.
    Whether the Coalition gets her nod… I also hope so, but I WOULD have been very satisfied if the Conservatives had taken seriously the mandate to WORK WITH the other Parties in the current Minority.

    That being said, IF the GG gives the nod to the Coalition, it should be limited to six months to pass it’s stimulus measures and show the Canadian people that it CAN be done, with an election once more in June or July to return to the electorate and a new, hopefully more learned Government.
    AMEN

  12. “This McWhinney character is way out of line, jwl. That’s like saying that running a murder trial is 50% rules, 50% whim. Just because judges are human, and you and I are both human, it doesn’t follow that you or I should preside over a murder trial.”

    The thing is that in our system the rules aren’t written down clearly. There are precedents and conventions, but they evolve, by nature. Conventions, for instance, can become obsolete in the parliamentary tradition. Orders in council have been attacked on this basis. The advantage of our system of government is precisely its flexibility, relative to the rule-bound American system*.

    *Yes, this crisis is bad for business, but the Americans faced with gridlock would have no choice but to endure it for 2 years before they could vote, and even then it might not make a difference.

  13. McWhinney is correct in saying constitutional law is 50% rules and 50% high politics. Bloggers advocate reading the constitution. So let’s look at some of the “rules” and see how they have played out in fact.

    Section 92 begins, “In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,–{I will stress the word “exclusively” which means to the absolute exclusion of all other levels of government, so laws that affect any of the “classes of subjects” enumerated in Section 92 are utterly off limits to the federal government}

    2. Direct taxation within the Province–this means income tax, but the federal government has been taxing income since 1917

    7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities… The 1980 Canada Health Act is a federal intrusion into the exclusive Provincial jurisdiction of health care. Every federal spending bill requires passage of a law. To fund the health and social transfer from Ottawa to the Provinces for health and education requires that Ottawa make spending “laws” in areas assigned exclusively to Provinces. Section 93 assigns exclusive authority over education to Provinces, with the condition that Provinces allow Catholic schools as a “separate” school system.

    13. Property and Civil Rights in the Province–federal environmental legislation clearly violates this “rule” by legislating how Canadians can and cannot use their property.

    It is usually argued that Ottawa’s jurisdictional squatting in areas of exclusive Provincial jurisdiction serves some public interest and should therefore be permitted. This is in clear violation of anybody’s constitutional authority, as Chief Justice Kerwin states in the following example:

    In the 1950 Lord Nelson Hotel case Canada’s Supreme Court ruled in a situation where Nova Scotia wanted Ottawa to assume a Provincial tax power. Chief Justice Kerwin, writing for the unanimous decision, said,

    “The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to a different division…To permit such an agreement would be inserting into the Act a power that is certainly not stated and one that should not be inferred.”

    That is as clear an expression of the “rules” as we could hope for. Yet Ottawa has no trouble making laws in areas it has no constitutional authority to involve itself with. This is because “high politics” routinely trumps the “rules”.

    I would go McWhinney one better. Canada is not governed by the rule of law at all, not 50%, not 20%. Power politics trumps constitutional law in every modern case where the two come into conflict. Madame Jean’s decision will be decided by the same power politics because that is the new “rules” our country is governed by.

  14. Amazing how the left wing apologists can stick up for anybody as long as it their political ilk. This woman was simply a political appointee, something like the sixth from the ‘peoples’ network and you think it is great. Well, buddy benders, there are others who do not agree with you. Chances are, the ones who don’t agree with you are the same ones footing the bill. By the way, when doz she get to take off again on her next five star vacation?

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