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Reflections on Prorogation as Michaelle Jean leaves office

Michaelle Jean’s time as Governor General has certainly been exciting.  Her Excellency has withered the storm with grace and has been a role-model for all Canadians both in her ability to excel in the challenges of the role of Governor General but also through her cultural and charitable work most notably her assistance in relief after the devastation in her Native Haiti.  Her Excellency is leaving office on Friday, October 1, 2010.

The constitutional crisis that faced Her Excellency nearly two years ago is very difficult to forget.  As the opposition parties attempted to form a coalition government and bring down Stephen Harper, Her Excellency was faced with a difficult decision as the Prime Minister attempted to thwart these efforts by proroguing parliament (the term prorogue, which I was certainly familiar with, entered the vocabulary of many Canadians for the first time during these events).  Ultimately, Jean decided to follow the advice of the Prime Minister and prorogue Parliament.

As Her Excellency prepares to leave office some have wondered if she would provide further insight into her decision and the two-hour meeting she had with the Prime Minister at Rideau Hall.  Thus far, few details have been provided.  Jean did explain today how she felt it necessary to take her time during this meeting to demonstrate the importance of the decision but also to use it as an educational opportunity for Canadians to better understand our constitutional democracy.  This makes a lot of sense to me as the “crisis” brought what is typically textbook learning to life.

During these events I wrote a small piece reflecting on what was going on.  I am reprinting this piece below in its entirety and without further editing:

Our Constitution at Work (Adam Goodman, Thursday December 4, 2008)

It’s no secret that I support the Liberal Party. Might as well get that out there to avoid being accused of partisanship. I do support the coalition, but I’m cognizant that it may not be that successful a move for the opposition parties as a whole, but the Liberal Party in particular. What I want to do is provide some analysis of what we observed today at Rideau Hall is as non-partisan a way as possible. As an amateur constitutional scholar the whole situation, while not necessarily good for Canada, was interesting to watch both for entertainment and as an academic exercise.

One well known convention of our constitution is that a government cannot govern unless they have the confidence of the House of Commons. The term itself is somewhat blurry. Is it not the role of the Opposition to question government? Is this opposition not in and of itself ‘non-confidence’? For the purposes of determining the authority of a government to govern, the word ‘confidence’ means that the House of Commons is permitting the passage of legislation that the government views as crucial to their mandate. This would include the throne speech, spending motions, and certain major bills introduced by a Minister of the government.

If one of these bills is defeated then the government loses all authority to govern. It then becomes the responsibility of the Prime Minister to inform the Governor General as such. At this point writs will be issued for an election or a new party may be given the opportunity to gain the confidence of the House.

The question that Her Excellency faced today was whether the only way for the House to show its lack of confidence in the government is through the mechanism I described above – the defeat of a motion of confidence. Clearly it was determined that, short of the Prime Minister coming to this conclusion on his own, it would be difficult to make such a determination. This was not much of an issue – I highly doubt any Governor General would make this determination on their own. Her Excellency also needed to determine whether it was appropriate to prorogue Parliament, a move which would serve to end the weeks-old session of Parliament, stop all legislation, and start again with a new throne speech in January. It’s a similar idea to dissolution except there is no election, MPs stay in office, the government retains full executive authority (although there was talk this time around of limiting this authority in a manner similar to dissolution), the Speaker stays in office, etc. It’s typical for a Parliament to have 2-3 sessions before an election is called. Here we will be starting the second session within four months of the previous election.

In my mind, Her Excellency was correct in proroguing the House of Commons. While she is the head of state, it is common practice that she takes her advice from the Prime Minister. It should not be her role to question the government on their reasons for prorogation.

The question then becomes whether the Prime Minister was justified in making this request. In my mind, he was not. Quite simply, a government needs to have the confidence of the House of Commons to govern. That is our system. The arguments made by the Conservative Party relating to the right of the coalition to form a government without having campaigned on such a plan, making a deal with the Bloc Quebecois, etc., while valid arguments, are matters to be considered by the electorate at a later date. Fact is that Canadians chose their Members of Parliament, and it is the responsibility of the members to determine who their government is going to be. By convention, if a government loses confidence soon after an election then the Governor General may inquire as to whether another government can be formed without issuing the writs. Again, this is our system. If you don’t like the way this works then by all means advocate for constitutional change.

The Prime Minister was welcome to take steps to regain the confidence of the House of Commons and avoid a motion of non-confidence. He also could have faced the Commons in this vote. Instead he took advantage of procedural rules to delay the Opposition in expressing the will of the House of Commons, and in doing so place the Governor General in an extremely unfair position. This went well beyond his rights as Prime Minister. He essentially decided to shut down the very body that grants him his legitimacy.