A Critical Juncture for Excommunication Culture

Last month I wrote a piece for The Line on the difference between ‘cancel culture’ and ‘excommunication culture’.

Part of my motivation for writing the article was to highlight that the excesses of excommunication culture couldn’t last. Unwarranted debasements of one’s peers can only go on for so long. At some point, people get fed up and stop playing along with the purity arms race that drives excommunication culture.

I’d argue that we’re reaching that critical juncture with the excesses of excommunication culture, the inflection point where the average person says enough is enough. We’re headed toward a more stable environment where greater care will be taken to differentiate between those who deserve to be punished and excluded, and those who’ve made a forgiveable mistake or who were simply the victim of a hyped up narrative of wrongdoing.

Why do I think we’re at this critical juncture?

First, there’s the wider culture. Check out the new Netflix show, The Chair. It’s in part about a prof who gets excommunicated for making a bad joke in class. Those who drive the excommunication effort in the show, undergraduate students and administrators focused on institutional reputation, don’t come across very well. The undergrads are portrayed as one-dimensional, incapable of understanding nuance and context, and of one mind. I’ve never come across a student body that looks like that and I suspect that a growing number of students are getting tired of being seen as a bunch of ideological lemmings. Administrators, on the other hand, do tend to be squarely focused on reputation. But they’re also incredibly sensitive to changes in public perceptions and mood. As universities increasingly become objects of derision and mockery for allowing excessive excommunications, administrators will shift to defending the importance of free expression and a liberal education. The Chair suggests we’re headed there in the way it portrays the sheer cravenness of the dean.

Second, there’s the growing professional class pushback. Today’s Anne Applebaum column in The Atlantic can be read as a cry that all is already lost, that excommunication culture is taking over and that it can’t be stopped. I’d argue that the column shows the opposite. Once columns like this start getting published more and more, which they have and will, it means the pivot has already happened. When mainstream outlets and the professional class start panicking about something (especially something they fuelled), it’s on the way out already.

Am I saying that there won’t be anymore unjustified excommunications? Nope. The pivot only means the slope is now headed downward, not that the trend will cease altogether. Indeed, those who rely on excessive excommunication to get their way or jockey for ingroup status will probably get more zealous as they see their power and influence diminishing. Twitter mobs will still gather and make demands, but institutions will eventually figure out that they aren’t a proxy for what most people think.

Importantly, though, those who have done actual harm will still be punished and shunned, and legitimately so; for all their excesses, progressive excommunications were initially motivated by a need for much needed change, as Applebaum notes. The aim will now be to restore proportionality and due process to the righting of wrongs. As those who actually care about progress and social justice already know, moreover, movements that instill fear and alienation among those they’re trying to persuade ultimately undermine themselves. While the past few years of amped up excommunications surely made many feel that they were taking down those who deserved it, the adrenaline rush is ending and the time to build lasting coalitions has returned.

Dissolution and the ‘Spirit’ of Responsible Government

What’s at the core of the debate about the Governor General’s discretion over the dissolution of Parliament?

Commentators such as Andrew Coyne and Thomas Mulcair think that the Governor General could refuse the Prime Minister’s request to dissolve Parliament at this stage. I disagree for the reasons I outline here and here.

How are we arriving at these differing conclusions? It ultimately comes down to one issue, which is the same matter that was at the crux of the 2008 prorogation controversy: what happens if the Governor General refuses to act on the Prime Minister’s advice or recommendation?

According to one school of thought, the Governor General can simply refuse the Prime Minister’s advice or request with no consequence or ramifications. So, were Trudeau to request that Simon dissolve Parliament, she could just say “no” and the Prime Minister would sit there dumbfounded and annoyed.

There are international precedents for this view, as laid out in Twomey’s book on reserve powers. It also has intuitive appeal. If the Governor General has discretion over dissolution, that should mean that they have the power to refuse a request, full stop. In this view, the Governor General is like a gatekeeper. The Prime Minister’s requests are only granted if the Governor General is satisfied that they’re above board.

For the other school of thought, to which I subscribe, there’s a consequence tied to the refusal of a Prime Minister’s advice or recommendation. Specifically, if the Governor General refuses a Prime Minister’s advice or request, the Prime Minister should either resign or be dismissed. Why’s that? Put simply, it’s because of the foundational convention of what we call ‘responsible government’.

When people think about responsible government, they tend to associate it with the Prime Minister and Cabinet having to maintain the confidence of the House of Commons. And that is indeed one of the core conventions of responsible government. But it’s not the foundational convention. A lot happened before we got there, constitutionally.

The foundational convention of responsible government is that the Crown acts on the advice of ministers. This convention emerged to deal with a sticky problem: how do you deal with the Crown acting incorrectly or illegally if the Crown can do no wrong. The answer was that, if the Crown screwed up, it was because the Crown has acted on bad advice from its servants, notably ministers. As time went on, this convention morphed into the idea that ministers were ultimately responsible for everything the Crown did, particularly in constitutional matters. Indeed, this was critical to the development of our constitutional monarchy and parliamentary democracy. The Crown remained the formal governing power, but its authorities were exercised by responsible ministers who were accountable to Parliament, and later held the confidence of the elected house.

These conventions remain in place today. The Crown as the executive power acts in all sorts of ways all day, every day. Although we can argue that ministers no longer consider themselves responsible for everything that happens in government, they’re still the ones who answerable before Parliament for what the executive does.

The Prime Minister has a special responsibility in this arrangement. Since they advise the Crown directly, they are responsible and accountable for the exercise of nearly all the Queen and Governor General’s constitutional functions and powers. If the Prime Minister advises the Queen to appoint a lacklustre Governor General, then the Prime Minister has to answer for the situation and find a remedy. If the Prime Minister decides to prorogue Parliament for crass partisan reasons, they’re the ones who are held to account for it. Asking the Queen or the Governor General to answer for these decisions wouldn’t make much sense, since the whole point is that they aren’t the ones making the call.

Does this mean that the Crown always has to accept the Prime Minister’s advice or requests? No. As with all conventions there are exceptions and flexibility. One of these exceptions is a prime ministerial request to dissolve Parliament shortly after an election. However, to keep this exception from being completely at odds with other conventions, notably the Crown acting on ministerial advice and the confidence convention, the Governor General should only refuse this request if she is prepared to name another prime minister.

What’s the logic here? If the prime minister is trying to end a parliament because they can’t hold confidence, then it only makes sense to refuse that request if another leader is able to secure confidence. Otherwise, the Governor General would be propping up a zombie government that the House of Commons is unwilling to accept. (Incidentally, this is not unlike what we saw in the United Kingdom in 2019, owing to their Fixed-Term Parliaments Act, which removed the Queen’s power to dissolve Parliament.)

What if the Prime Minister still has confidence? In that case, the need to name another Prime Minister is as important, if not more so. Simply put, if the Governor General is prepared to reject the request of a Prime Minister who holds the confidence of the democratically elected Commons, she should only be doing so knowing that she can name another Prime Minister who can also hold confidence. Otherwise, the Governor General would be acting contrary to the one indicator that the Crown has of the government’s democratic legitimacy: confidence. And if there’s any doubt about that democratic legitimacy, or of an alternative prime minister to demonstrate it, then the Governor General’s best course of action is to accept the dissolution and let voters decide.

In fact, if the Governor General refuses to act on a dissolution request of a Prime Minister who holds confidence, but the Governor General is unwilling or unable to name a replacement, then the Prime Minister would be within their right to ask the Queen for a new Governor General.

One counterargument is this: the Governor General would be preserving democracy by preventing a Prime Minister from dissolving Parliament, absent a vote of no confidence. The problem here is that this argument privileges the parliament over the democracy in parliamentary democracy. It’s hard to see how keeping a parliament going is more democratic than allowing another election, especially if enough time has passed since the last dissolution, which is exactly what the custom around the refusal of a request to dissolve gets at (6-12 months since the last election, tops.) And it’s equally hard to see how allowing the appointed representative of the Queen to prevent a Prime Minister from dissolving Parliament when there’s no viable alternative government waiting serves the democratic principle.

What about the fixed date election law? Shouldn’t the Governor General enforce the spirit of that law? Well, first off, the statute has to be read in light of the constitution; indeed, good luck making sense of most of our core laws, including the Constitution Act 1867, without reference to constitutional convention. With that in mind, why should this statute, which explicitly recognizes the Governor General’s power to dissolve Parliament (always upon the Prime Minister’s request, by the way), be used to disregard so many other constitutional rules listed here above?

The spirit of the law, moreover, is a difficult thing to divine. The courts have already told us that the fixed date election law doesn’t prevent an early dissolution. We have a number of precedents, federally and provincially, which show that early dissolutions are not contingent on votes of no confidence. We can point to what the justice minister said about the bill when it was making its way through Parliament, but we can also point to his Prime Minister asking and getting the Governor General to dissolve Parliament without a vote of no confidence soon thereafter. I, for one, am also a bit hesitant of taking what ministers say at face value when they explain their decisions and motivations before Parliament, but maybe that’s just me.

Finally, what other legislative spirits should the Governor General be enforcing? Should the Queen’s representative be dismissing governments who fail to live up to climate change treaties? Should the Prime Minister be summoned to Rideau Hall for failing to allow enough Canadians to join the middle class? What’s are the cut-offs and criteria here?  

In sum, if Parliament is dissolved in the coming weeks or months, one person is responsible and accountable for the decision, the Prime Minister. If Canadians are unhappy with this move, they can punish his party at the polls. If we do head for an election, the Governor General will have done no wrong.

Dissolution is the Prime Minister’s Call Right Now

As per usual, we’re debating whether the Governor General can refuse the Prime Minister’s request to dissolve Parliament.

Also as per usual, we need to clarify a few fundamentals:

Yes, the Governor General retains the discretion to refuse a Prime Minister’s request to dissolve in certain limited circumstances.

No, those circumstances are not present at the moment.

What are the circumstances?

A dissolution can be refused if an election has recently taken place, say within the past 9-12 months, and there’s another viable government among the parties in the House of Commons.

There may also be some very exceptional circumstances where the Governor General would discourage a dissolution if it is being requested for nakedly partisan reasons, with no obvious connection to the right of voters to express themselves.

For instance, imagine a Prime Minister’s party was elected with only a plurality of seats, not a majority, but no other party or coalition can form a viable alternative government. Would the Prime Minister be able to go back to Governor General and ask for dissolution within a couple of months of the election, in hopes of securing a majority? Technically, the Governor General wouldn’t have much room to manoeuvre. The Governor General could pressure the Prime Minister to rethink the request. If the Prime Minister insists, though, the best course of action is to let voters decide the Prime Minister’s fate. Political sanctions are almost always the preferred way to deal with a Prime Minister who is abusing their authority. The Governor General is a constitutional fire extinguisher, not a referee.

Most political leaders know these rules. If they’re saying otherwise, they’re posturing, nothing more.

If you want to know more about how this all works, here’s an article of mine you can download.

And while we’re on the subject, a few more fundamentals:

We are not in a caretaker period because there might be an election soon. The caretaker period only starts once the request to dissolve Parliament has been accepted by the Governor General.

The current government remains in place during the election period. The caretaker period doesn’t prevent them from governing. In fact, given the pandemic, the government has every right, and indeed the responsibility, to take actions with respect to the pandemic.

Canada’s fixed-date election legislation preserves the Governor General’s power to dissolve Parliament on the Prime Minister’s request. Whatever you think about the spirit of the law, the letter of law is quite clear here.

The Commissioner vs the Constitution

The Commissioner of Official Languages, Raymond Théberge, is launching an investigation into the appointment of Mary Simon as Canada’s new Governor General.

After receiving over 400 complaints about Simon’s lack of fluency in French (see my views on the matter here), Théberge will be investigating the Privy Council Office (PCO). On the surface, it’s not hard to see why he is focusing on PCO. It’s the only federal institution he might hope to claim jurisdiction over in this matter. If he honestly believes PCO decided on Simon’s appointment or that they violated any Act of Parliament, though, he needs to bone up on the Canadian constitution.

The Governor General is appointed by the Queen under her prerogative authority. The exercise of this power is the most important function the Queen plays in the Canadian constitution today. It’s unlikely that the courts would consider exercises of this power justiciable, and it’s almost certainly protected by the unanimous constitutional amending procedure under paragraph 41(a) of the Constitution Act, 1982.

Théberge evidently realized that he couldn’t investigate the Queen under the Official Languages Act. The Queen doesn’t constitute a federal institution under that law and there’s no Act of Parliament that touches on the appointment of the Governor General by the Queen. The Governor General’s Act doesn’t deal with the Queen’s power to appoint the Governor General and the Letters Patent 1947 that define the Governor General’s functions and powers are not an Act of Parliament.

The Office of the Governor General headed by the Secretary to the Governor General is a federal institution under the Official Languages Act, but nobody is claiming that it doesn’t run in both official languages. Nor is there any suggestion that Rideau Hall won’t work in both official languages once Simon takes up her office. So, that’s another dead end for an investigation.  

Let’s look at the bilingualism requirement itself. Did the Prime Minister break any laws by recommending Simon to the Queen? Nope. The rules that surround the appointment of the Governor General are constitutional conventions, not laws. We keep certain core constitutional rules as conventions to ensure that that courts (and overreaching officers of Parliament, it seems) don’t try to enforce them. The consequences of skirting convention are political, not legal. As importantly, even if convention demands that the Governor General be bilingual, conventions are meant to be flexible. They’re also meant to evolve, which runs counter to attempts to cast them in stone.

With nowhere else to turn, Théberge has decided to focus on the one federal body where an investigation might have traction: the Prime Minister’s department, aka PCO. What’s PCO’s role here? PCO coordinates the appointments process and assists the Prime Minister in his official communications with the Queen, including in matters related to the Governor General. As part of this particular vice-regal appointment, PCO also supported the committee of notables that advised the Prime Minister on potential candidates for the office. As far I can surmise, it seems like Théberge is going to check if PCO officials and the advisory committee paid enough attention to bilingualism when looking at potential candidates. Or maybe that they failed in some way by offering up the name of someone who isn’t bilingual? Who knows.

The problem, though, is that PCO and the committee were offering non-binding advice. That’s it. The Prime Minister was free to ignore them and demand only bilingual candidates if he wanted. He didn’t. He decided that convention could be bent a bit, or perhaps allowed to evolve, to allow him to recommend Simon to the Queen. And the Queen, in keeping with constitutional convention, duly appointed who her Prime Minister recommended.

In essence, then, Théberge will be investigating bureaucrats and an advisory committee for providing non-binding advice, on a non-justiciable decision that was the Prime Minister’s to make, under a constitutionally-protected power that the Queen exercises.

Ok, then.

NSICOP 2.0

It’s time to start thinking about making the National Security and Intelligence Committee of Parliamentarians a National Security and Intelligence Committee of Parliament

With the official opposition boycotting the Committee and its vulnerability to the realities of a minority parliament now evident, we need to think about a reboot. 

My friends and colleagues are wont to blame the current kerfuffle on politicians. From this perspective, the Committee has been undermined by politics and the inability of parliamentarians to behave responsibly. The boycott is also seen as a blow to parliamentary oversight of national security affairs. 

As I argued yesterday, the underlying problem with NSICOP is its structure (an executive body), not the agents (parliamentarians). As an executive body, NSICOP was going to run into trouble when the opposition parties controlled the Commons. Portraying NSICOP as a de facto parliamentary committee wasn’t going to cut it when we faced a stand-off between the legislature and the executive. NSICOP wasn’t going to be an acceptable stand-in for parliamentary scrutiny of national security affairs when the opposition has the power to demand actual parliamentary accountability. Instead of blaming parliamentarians for being parliamentarians, we should ask why we thought it was wise to set up an executive review body and pretend that it was a viable substitute for a proper legislative committee. 

If the underlying issue here is that NSICOP is an executive body, rather than a legislative one, then the solution is arguably to transform it into an actual parliamentary committee. 

What problems would making NSICOP a parliamentary committee solve?

First, it would mean that when a house of Parliament demands national security documents from the executive, there would be a parliamentary committee to review them. This would avoid the legitimate concern that the Commons’ privileges and powers are being diluted by referring these matters to an executive body. 

Second, if NSICOP were a parliamentary committee, the opposition couldn’t claim the government is skirting parliamentary scrutiny if the matter was referred to the committee. It would no longer be necessary to pretend that NSICOP is involved in parliamentary oversight because its members are parliamentarians. The opposition could no longer use the Committee’s status as an executive body to decry that Parliament and its powers are being undermined. 

Third, it would empower Parliament. There’s something pretty sad about the fact that we thought creating an executive body was a victory for parliamentary accountability. Indeed, it says a lot about the sorry state of the legislative power in Canada that we thought the way to strengthen parliamentary accountability was to create an agency within the executive. I mean, come on, people.

I expect the response to these structural points will be that parliamentarians can’t be trusted with national security issues or security clearances. The Conservative’s boycott of NSICOP will be presented as evidence that parliamentarians can’t be serious about these issues and that a parliamentary committee will be even more politicized. 

Although I get that sentiment, let’s look at what’s actually happened here. The problem isn’t that the members of NSICOP were irresponsible or that they misused their clearances or mandate for political ends. Whatever else we can say about the current confrontation, it doesn’t suggest that parliamentarians can’t be trusted with classified information. 

Seeing the opposition’s demand for documents as unserious or irresponsible, moreover, reflects an executive perspective. The executive thinks that only an executive body should see documents from the executive. The executive maintains that parliamentarians serving in an executive capacity is a good compromise when the legislature seeks to hold the government to account. That may seem like a non-partisan and serious way of looking at it if you adopt the government’s point of view. If you come at it from a parliamentary perspective, though, you see a partisan executive trying to get around the legislature’s constitutional functions and powers. Defending those functions and powers may seem unserious and purely partisan from the executive’s point of view, but its a very serious matter if you look at it from a parliamentary vantage point. 

Lastly, it’s worth addressing the question that’s floating around this entire discussion: how would we prevent members of a parliamentary national security committee from sharing classified information under the cover of parliamentary privilege? This isn’t the intractable problem it’s made out to be: take a look at how the Australians and the British manage this risk with their parliamentary national security committees. But aren’t Canadian parliamentarians different? Aren’t they particularly irresponsible?

Well, perhaps the way to make them act more responsibly is to make them more responsible. 

NSICOP and the reality of a minority parliament

So, it seems that the National Security and Intelligence Committee of Parliamentarians (NSICOP) has hit a bit of a snag. This is regrettable and should have been avoided. But it was also predictable and reminds us that ours is a system of political accountability (see chapter 3 here), even in matters of national security and defence.

What is NSICOP? It’s an executive review body whose members must be parliamentarians.

Despite having ‘committee’ and ‘parliamentarians’ in its name, NSICOP is not a parliamentary committee. Rather it is a committee of parliamentarians who serve in an executive capacity. Don’t think that matters or that it’s a pedantic point? Alas, it does matter, as we’re seeing these days.

Because NSICOP is not a parliamentary committee, it does not review national security affairs as a subset of a house of Parliament. It does so as a part of the executive. During a majority parliament, we might not care or notice this distinction. The governing party will control Commons committees and they won’t be inclined to demand any documents or undertake any troublesome investigations, as a result. In that context, having NSICOP around is quite useful. The Committee undertakes reviews and publishes reports that are eventually tabled in Parliament, and as a committee of parliamentarians, it involves senators and members of Parliament in monitoring national security issues.

The problem arises when we have a minority parliament and opposition parties control Commons committees. In these situations, the opposition will be able to use the powers of Parliament to call the witnesses they’d like and to demand documents from the executive, including those that touch on national security. While the executive will naturally prefer that these questions be referred to NSICOP, the opposition will have no incentive to play along. Once a matter is referred to NSICOP, it can take months, if not years, for the committee to complete its review and produce a report. By the time this process is over, the issue at hand will be dead, politically. Why should the opposition accept that when it can keep the issue alive during a minority parliament, a situation where an election is always around the corner and parties are vying to make whatever headway they can against each other?

National security experts will likely answer that national security issues should be above partisan politics. A similar argument has been made about how the opposition is using sexual misconduct in the military to attack the government: these questions are too important to be mired in the muck of partisan politics.

As much as I sympathize with this view, it’s too idealistic and runs contrary to the system of government we’ve developed in this country. Government accountability in Canada is a political affair. To keep sufficient pressure on the government to account for itself and rectify whatever wrongs are happening, we rely on opposition attacks that attract and sustain media attention. However ugly and petty it gets, this is the mechanism we have in place to get answers and action from the government.  

A core weakness NSICOP has had since it was first proposed is that it runs counter to this political reality, notably during minority parliaments. The true test of the Committee’s viability was always going to be when the opposition would control Commons committees and make full use of the privileges of Parliament. When the opposition has these at its disposal, why should it settle for NSICOP when holding the government to account for national security matters? Unfortunately, the only answers provided to that question don’t reflect the political, and yes partisan, nature of accountability in Canada.

See my follow-up post here.

Wayward Governors General and the need for a Canadian Regency Act

Canada doesn’t have a regency act. Recent talk of the Queen’s power to dismiss Canadian Governors General highlights why this is may be a problem. Specifically, Canada’s current approach to a regency rests on the idea that the Governor General would exercise all of the Sovereign’s powers, including the prerogative to appoint their own successor. Were we faced with a Governor General who needed to be dismissed when the Sovereign was incapacitated or too young to assume the throne, we’d have to ask the vice-regal representative to fire themselves by naming their own replacement. That’s not a recipe for success.

The United Kingdom has a regency law, the Regency Act 1937, along with two amendments to that statute made in 1943 and 1953. Neither of these acts were extended to into Canadian law by the British Parliament. Accordingly, if we accept that the Queen of the United Kingdom and the Queen of Canada are separate and distinct offices (which not everybody in Canada does, but the English courts do), these British regency laws would not apply to the Sovereign in a Canadian capacity or the monarch acting for Canada on the advice of Canadian ministers. 

Why were the British regency acts not incorporated into Canadian law? The detailed explanation is provided by Twomey here. The short version is that these acts were passed by the British Parliament after the Statute of Westminster 1931. Section 4 of the Statute of Westminster 1931 provides that « No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof ». Since the Canadian government did not request and consent that the British regency acts be extended to Canada, they aren’t part of Canadian law. 

The Canadian government didn’t see this as a problem in 1937 for the same reason we don’t think about it today: Canada has a Governor General who can exercise the Sovereign’s powers. In 1947, moreover, new Letters Patent were issued that explicitly allow for the exercise of all the Sovereign’s powers and prerogatives by the Governor General. All powers except for maybe one, that is: the power to appoint and dismiss the Governor General. 

Today most authorities would probably agree that the Letters Patent allow the Governor General to appoint their own successor, though this could be considered bad constitutional form and an affront to the Queen unless she was consulted beforehand or was incapacitated. According to the prevailing view, the Queen continues to appoint the Governor General ‘by agreement’ and this prerogative should only be exercised by the Governor General if the Sovereign ‘agrees’ to give it up, or necessity demands that it be exercised by the vice-regal representative. 

As importantly, it’s not hard to see why the Canadian government wouldn’t have seen this, and still doesn’t see this, as a big issue. In the event that the Sovereign was incapacitated, the Governor General could simply stay in office until the monarch recovered, died, or a successor came of age. Unlike provincial Lieutenant-Governors, furthermore, the Chief Justice of the Supreme Court can exercise the Governor General’s powers under the Letters Patent 1947 if the Governor General dies in office. And if the Chief Justice also died, then the next Chief Justice could do the same. This is all laid out in the federal government internal 1968 procedure and practice manual. So, our system has built-in resiliency here, unlike the provinces who must wait for the federal Cabinet to appoint a new Lieutenant-Governor if their vice-regal representatives dies, preventing them from having orders-in-council signed and royal assent granted.  

There’s one problem here, though. With the power to appoint the Governor General comes the authority to dismiss the Governor General. They’re twined prerogatives. Our regency workaround is fine when it comes to waiting for a new Governor General to be appointed or making due for a while. But what if we need to get rid of a Governor General while the Sovereign can’t exercise their powers? Basically, we need to ask the Governor General to resign by appointing their own successor. 

Now, according to constitutional convention, if the Prime Minister advised the Governor General to appoint their own successor, they would have to do it, unless the Prime Minister was advising it because the vice-regal representative was blocking them for acting unconstitutionally. (Think of a Canadian version of the Saturday Night Massacre.) 

Yet, if the Prime Minister is trying to forcibly get rid of the Governor General, it’s probably because the vice-regal has refused to voluntarily resign. In that context, said Governor General might also refuse to effectively dismiss themselves. In the absence of an existing regency act, the Prime Minister would have two options. First, they could rush a regency bill, or a constitutionally-dubious bill dismissing the Governor General, through Parliament. Alternatively, they could refer the matter to the Supreme Court in hopes that the justices would pull a Miller II, circumventing constitutional convention to solve the problem. Given that the Governor General also has the power to dismiss the Prime Minister, though, this sounds like a game of constitutional chicken we’d want to avoid, even if it all worked out in the end. Seriously, who needs the stress and aggravation?

Since we are likely facing decades of geriatric monarchs, and given that talk of dismissing a Governor General doesn’t seem that outlandish these days, perhaps we could get ahead of the curve. Indeed, addressing this lacuna would also address another ‘what if’ scenario: appointing additional senators under section 26 of the Constitution Act 1867, as happened in 1990 to pass the GST. Section 26 requires the involvement of both the Governor General and the Queen. A plain reading of the section suggests that the Governor General shouldn’t be able to act for the Queen. Simply assuming that the Letters Patent 1947 allows the Governor General to act for the Queen under section 26 seems risky, to say the least. 

A regency act could be passed by Parliament as a regular statute or a section 44 constitutional amendment, if need be. It could be as basic as New Zealand’s regency provision, which says that the British regent is also the regent for the Crown of New Zealand. It would take a couple of lines. Let’s get on it.  

Disciplining and Dismissing Governors General

What can be done with a Governor General who has been accused of acting inappropriately, but not unconstitutionally? As with most things Crown, it’s complicated. To understand why, we need to look how the Governor General relates to the Queen and the Prime Minister.

The Governor General is the Queen’s representative and is appointed (and if necessary dismissed) by the Sovereign on the advice of the Prime Minister. In almost all cases, the Queen is unlikely to raise objections about the person selected. The Queen and Buckingham Palace will assume that the Canada’s Prime Minister has selected a Canadian of proper standing and honour, and that the Prime Minister’s Office and Privy Council Office have performed due diligence regarding the individual’s suitability for the role and what it entails.

This being the Crown, there are of course exceptions. The Queen might refuse to appoint a new vice-regal representative if the Prime Minister is trying to replace the Governor General for dubious reasons. For example, the Sovereign would have the discretion to keep her vice-regal representative in place if the Prime Minister had lost the confidence of the House and the Governor General was refusing to dissolve Parliament in lieu of allowing someone else to form government. Likewise, the Queen would have the right to refuse if the Governor General was preparing to dismiss a Prime Minister who is engaging in criminality or who is acting unconstitutionally. In these instances, the Queen would be preventing the Prime Minister from interfering with the Crown’s place and powers in the Canadian constitution.

Aside from these extreme cases, though, the Queen would normally dismiss and replace the Governor General on the Prime Minister’s advice. The Queen retains this power to ensure that we have a mechanism to deal with Governors General who are unfit for office or who have misused their powers.

But does this mean that advising the Queen to dismiss a Governor General is the obvious solution when faced with a Governor General who is accused of wrongdoings? Not exactly.

Unless the Governor General has gone rogue or is acting in a flagrantly unconstitutional or criminal manner, the preferred course of action is for the Prime Minister and/or the Clerk of the Privy Council to work with the Governor General and Rideau Hall to remedy whatever the problem has arisen. If the issue can’t be readily resolved, or if it keeps recurring, the Prime Minister might request that the Governor General resign voluntarily. A conversation behind closed doors that allows everyone to save face, and to preserve the dignity of their respective offices, is the way to go.  

This would surely be Buckingham Palace’s preference as well: far better to keep the Queen out of it, if at all possible (though the Queen’s Private Secretary might also recommend that the Governor General resign, for the sake of the Crown’s wider reputation.)

So just to be clear: Advising the Queen to dismiss the Governor General should be the last option, when all others have been exhausted or time is of the essence.

Of course, having the Prime Minister visibly leaning on the Governor General to do better or resign would be awkward and expose constitutional fault lines we tend to ignore.

Formally, as the Queen’s representative, the Governor General holds the second highest office of the Canadian state. The Governor General is entrusted with reserve powers that are meant to ensure that vital aspects of the Canadian constitution, notably those surrounding the life of Parliaments and ministries, are respected. As discussed, this means that the Governor General may have to refuse a Prime Minister’s request to dissolve Parliament, and the Governor General may be required to dismiss a Prime Minister who is violating the constitution or who is otherwise unfit to be first minister. When we think of who has the power to dismiss who, we usually think of it in terms of the Governor General’s authority over the Prime Minister. And, frankly, when our system is operating normally, that’s the way it should be. 

When it’s the Governor General’s conduct that’s at issue, however, the responsibility to act belongs with the Prime Minister. When Canada was a colony, this duty to act would have rested with the British government, since the Governor General was effectively their agent. Today, the Prime Minister’s responsibility stems from the fact that, under the conventions of responsible government, Prime Ministers advise the Queen on the appointment and dismissal of Governors General, and Prime Ministers are responsible for, and accountable for, all acts and affairs of the Canadian Crown, i.e. the Queen when she is acting in her Canadian capacity and the Governor General.

The Governor General, moreover, can’t be dragged in front of a parliamentary committee to account for their actions, nor would it be appropriate to even invite them. Governors General are supposed to be above the partisan fray and exposing them to opposition questions and critiques, or governing party deflections, would be contrary to constitutional propriety and the dignity of the office.

When the Prime Minister has to answer for the Governor General’s behaviour, though, it should be seen as a warning sign. If the issue goes away in short order, then the situation might be righted. But if the problem becomes a controversy or scandal, things will quickly become untenable. The Governor General’s authority over the Prime Minister will unravel if the first minister is having to reprimand the vice-regal representative. Conversely, the power and legitimacy of the Governor General will take a significant hit if the vice-regal representative is seen to be acting with impunity. Indeed, the standing of the office and institution could take significant damage if a Governor General appeared dismissive or unaccountable. A Prime Minister who couldn’t or wouldn’t do anything would also be abdicating their constitutional responsibilities.  

If questions about a Governor General’s suitability for office mount and persist, the matter should be dealt with discreetly, but decisively. If that doesn’t work, it may be necessary to address the issue more openly, to expose the goings on to public scrutiny and pressure. And if that still doesn’t solve the problem, then the Prime Minister should intimate that they’ll call the Queen, and ultimately call her and request a dismissal of the Governor General if there’s no other option.  

On Withholding Royal Assent

No, the Lieutenant Governor won’t withhold royal assent from a bill. Even if you write them a letter or publish an op-ed. Even if you ask them nicely. Even if you cite Bagehot.

Guess what? Neither will the Governor General. Nor will the Queen. It’s not happening. Put the pen down. Step away from the keyboard. You’re embarrassing yourself.

While we’re on the topic, asking the Governor General to find a minister to advise her to exercise the royal prerogative of mercy isn’t appropriate either.

You want someone to exercise the prerogative of mercy? Write to the Prime Minister, the one who is constitutionally responsible for advising the Governor General and accountable to Parliament for all affairs of government, grants of mercy included.

Perhaps a few clarifications are in order.

The Queen and vice-regal representatives exercise their formal authorities on ministerial advice, and in the case of royal assent, arguably on the advice of the legislative house(s).

There are a few cases where the Queen or a vice-regal representative can exercise a degree of discretion when exercising their formal powers.

In the case of the Queen, she might refuse the Prime Minister’s advice to dismiss the Governor General in very extreme cases.  

The Governor General and Lieutenant Governors can refuse a first minister’s request to dissolve the legislature if there’s been an election recently and there’s another ministry that might be able to secure confidence. The Governor General and Lieutenant Governors also have the power to dismiss a first minister involved in criminality or blatantly unconstitutional behaviour. And they could be called upon to exercise some discretion when appointing a new first minister in certain specific circumstances.

A number of Canadian scholars insist that the vice-regals have the discretion to reject a first minister’s advice to prorogue the legislature. This may be more likely in light of the Miller II case in the United Kingdom, but the careful reader will note that the Lady Hale and Lord Reed didn’t say that the Queen had that discretion. The courts, not the Crown, were rightly asked to make the call about the constitutionality of the prorogation.

Ah, but the Constitution Act 1867 allows a Lieutenant Governor to reserve a bill. Lieutenant Governors have used this power before. The Lieutenant Governor of Alberta highlights the history of this power on their website. It’s on the website! What more proof do we need that a Lieutenant Governor has this authority?

The Lieutenant Governor’s formal reservation power reflects the Governor General’s authority to do the same for federal legislation, as per section 57 of the Constitution Act 1867. When you read this section, you may notice that reserved bills are given assent by the Queen-in-Council. What’s the Queen-in-Council? The British Cabinet. Anybody think the Governor General of Canada can still reserve a bill for the British Cabinet’s consideration in 2020? I dunno, seems unlikely.

Section 90 gives the Lieutenant Governor the power to reserve a bill for the Governor General’s consideration. Originally, this was meant to give the federal Cabinet the chance to withhold (or grant) assent to provincial legislation. A few Lieutenant Governors decided to use this power based on their own judgement. This hasn’t happened since 1961, though. You might be able to track down a few contrarian academics who still think the power can be used. Most would argue it’s gone the way of the dodo.

As with the federal provision, reservation at the provincial level is a spent power owing to disuse and constitutional convention. What principle would this constitutional convention be connected with? The contemporary nature of the Canadian federation, for one. Parliamentary democracy would be another. The constitutional norm of the Crown’s neutrality and non-partisanship would be a third. And the separation of powers would properly figure in there, too; again, it’s the courts’ job to rule on the constitutionality of legislation, not the Crown’s.

Leaving reservation aside, what about the Governor General or a Lieutenant Governor withholding assent on the advice of Cabinet or based on their own discretion? Opening the door to a refusal of assent on the advice of ministers would amount to giving the executive a veto over legislation. We might want to think that through, particularly in a minority context, such as the one we currently have in Parliament. The executive already dominates the legislative process. Would it serve Canadian democracy to give the executive power a raw veto over bills? Nope.  

That leaves us with the personal discretion of a Lieutenant Governor. On what ground would a Lieutenant Governor withhold assent to a bill that has been passed by the duly elected members of the legislature? What would give this appointed official the legitimate authority to act contrary to their collective will? Maybe if the members of the legislature realized there was an egregious error in the bill and that was communicated to the Crown. Maybe if a bill was so dangerous and so threatening to rights and liberties that this was the only course of action. But even then, this reasoning rests on the idea that the bill would present such a clear and present danger that the courts wouldn’t have time to intervene. That’s a high bar. Bills that we disagree with or that we have serious misgivings about don’t reach it.  

Letters to the Queen, Governor General, and Lieutenant Governors asking them to exercise powers without advice or contrary to advice seem to be increasingly common. It’s mostly performative. The writers know it’s not going to happen, but it helps draw attention to their cause. But it also feeds ignorance about our constitution and undermines our democratic principles. That doesn’t help anybody.

Stop writing these letters. Please.

Politics, the pandemic, and the professional class

Here’s a piece I wrote as part of the Policy for Pandemics series:

 

COVID-19 is highlighting the importance of evidence and expertise in policymaking and democratic government. The pandemic has brought experts to the centre of decision-making and government communications in Canada. Public trust in these experts is high and has helped flatten the curve. Canadian governments of all stripes have embraced public health officials, and few have questioned the wisdom of following their prescriptions. Those few politicians who have critiqued these experts, or engaged in crass partisanship in these exceptional times, have been roundly disparaged.

For all the death and economic devastation, the pandemic has made room for an elusive ideal of democracy, one where ideas, not factions, compete to shape government policy and evidence adjudicates between them. Expertise and data rule, unburdened by the shallowness of the communications strategies, wedge issues, fearmongering, muckraking, and partisan theatrics, including those in Parliament.

This ideal holds particular sway among members of the professional class: academics, lawyers, economists, doctors, pundits, and civil servants of a centrist, small-l liberal persuasion. This is perhaps not surprising, since they’re heavily represented among those who have policy-relevant expertise. Yet this is more than self-promotion; the ideal rests on the possibility of achieving objectively defined public goods, and of finding an equilibrium between competing interests and demands. Often tagged as ‘elitist’ by the populist right, and ‘neoliberal’ by the critical left, the pandemic has temporarily silenced most skeptics of this rationalistic vision of democratic government.

An important characteristic of this way of thinking, however, is that it’s a shade more technocratic than democratic. The emphasis is less on government by the people than by the knowledgeable. Indeed, we find within this worldview an echo of the ancients’ worries about the demos and demagogues. This, in turn, leads to a strong emphasis on the liberal in liberal democracy, and a counterbalancing of democratic excesses by technocratic expertise. Hence, there is an emphasis on the wisdom of the judiciary over the whims of elected representatives, on the professional public service not only advising and implementing but speaking truth to power, and on the importance of merit over loyalty in public appointments.

In normal times, of course, precedence is still given to popular democracy and the baser forms of politics that animate it. The consent of the people is primordial, even if it has to be secured through electoral campaigns that are light on policy and heavy on rhetoric, meatheaded partisan attacks, and gotcha media coverage. Similarly, the essentiality of Parliament isn’t in normal times called into question, though the vacuity of question period and many committee hearings are always lamented. And despite the centrality of expertise and evidence for adherents of this ideal, the principle that politicians have a right to be wrong is grudgingly accepted.

COVID-19, however, has exhausted the patience certain members of the professional class have with politicking, partisanship, and the parliamentary settings that allow them to flourish. Although the governing party only has a plurality of seats, and ministerial accountability relies on a partisan government-opposition dynamic, a fair number of voices insist that this is not the time for Parliament to sit or for political parties to play their usual role. To suggest otherwise is to be tone deaf, unserious, or irresponsible. Until the pandemic is over, we are told, base politics needs to be put on hold, lest it distract us from the crisis at hand and the expert advice we need to get through it.

There is a lot going for this view, but it should make us a bit uncomfortable, especially those of us who belong to the professional class and subscribe to the rationalistic vision of government many of its members champion. The speed with which popular politics and Parliament can be silenced should give us pause. Partisan politics and representative institutions remain the bedrock of Canadian democracy. Although it’s tempting to think that the ideal of democracy as exchange of expertise and evidence is a sufficient substitute, this betrays a certain vanity and hubris of the sort that has felled technocrats in the past. Unless there is an absolutely compelling reason to exclude them, popular politics and representative democracy must be given their due. (PL)