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.