The constitutional and political aspects of the office of the Governor General.

• Author: McWhinney, Edward
• Position: Essay

On December 4, 2008, Governor General Michaelle Jean met with Prime Minister Stephen Harper at his request. The Governor General had broken off a State visit to three central European countries and returned to Ottawa the previous day to meet with the Prime Minister. The meeting was held in private and, in accord with long-standing practice, without any official minutes of the meeting. The Governor General granted the Prime Minister's request for an immediate Prorogation of Parliament, with the House of Commons, as had been indicated publicly by the Prime Minister, to resume on January 26, 2009. These events raised a number of questions about the role of the Governor General which are explored in this article.

**********

The office of Governor General is part of the historically "received" (British) constitutional heritage in Canada-what today is referred to as a Westminster-model constitution with its dualist executive system (titular head-of-state, and head of government). Its best surviving historical examples, apart from Great Britain itself, are in the "old" Dominions--Canada and Australia. It is replicated also, and continues to operate with a certain imaginative flair and capacity for pragmatic innovation in some former or present members of the Commonwealth, like Ireland and India, where after serious studies of the U.S. and Continental European models, it was chosen freely to adopt it, in preference to those other executive paradigm-models.

The bulk of the law governing the conduct of the Governor General of Canada is not to be found in the original British North America Act of 1867 (renamed in 1982 as the Constitution Act), but in the un-codified institutional practice of Great Britain going back a number of centuries, the so-called Conventions of the Constitution. This may be supplemented today by reference to practice in other, cognate Commonwealth countries that retain the Westminster paradigm model but that have had much more occasion than Great Britain or for that matter Canada in the often trial-and-error testing involved adapting old, even antique constitutional forms and processes to the rather different societal conditions and needs of today's society. It would have been possible, and no doubt sensible, to have attempted over all the years since 1867 and especially after the adoption of the Statute of Westminster in 1931, to codify the Office of Governor General and to try to establish the possibilities and also prudent limits of the discretionary powers of the Governor General, particularly in relation to the granting, or withholding, or later withdrawal of the mandate to form a government--the making and unmaking of governments. Certain continental European countries, with different legal-historical roots than Westminster, but with a not dissimilar dualist executive system, have done that in their new post-World War II constitutional systems, with some evident public success in reducing the risks of accusations of politically partisan decisions being directed against the head-of-state. The failure to act in Canada stems in part from that political inanition that one finds in countries that have no immediate major political, social, or economic crisis of the sort that generates public demand for fundamental constitutional change or even a new constitution. The few examples in Canada of ad hoc constitutional change in recent years, like the Fixed Elections date amendment to the Canada Elections Act, adopted in 2007, (1) have sometimes been misunderstood, as to their intent and purpose, notwithstanding their very clear and explicit statutory draftings. The 2007 amendment does not in fact provide any extra constitutional empowerment to the Governor General, whose Prerogative, discretionary powers, (such as they may be today, but including the power to dissolve Parliament), are expressly "saved" by the legislation.

One suggested way of at least politically if not also legally empowering the Governor General has been to have the office given the extra legitimacy, by having some system of election, direct or indirect, to it. Until the Statute of Westminster in 1931, the Governor General remained an Imperial Official, chosen by the British Government and responsible to it. In 1916, Conservative Prime Minister, Sir Robert Borden, strongly protested Whitehall's choice of the successor to the Duke of Connaught, without any prior consultation with Ottawa. Thereafter, beginning with the next appointment, a process of confidential consultation with Ottawa had emerged. By the 1930s, post-Statute of Westminster, the choice of the Governor General seems effectively to have been made by Ottawa; and since the 1950s, both the process and also the actual choice have become wholly Canadian (save for the formal appointment, after the event, by the Queen). (In 1930, King George V had attempted to veto the Australian choice of the first Australian national as Governor General, but the Labour Prime Minister of Australia of the day had resisted and the King desisted). There has been no turning back from that political reality since that time.

Would local election of the Governor General make a difference? The examples cited from outside Canada reflect, too often, their own special societal facts and the political culture going with that. Ireland has been the most open and democratic, with a nation-wide popular election to choose the head-of-state; but the Irish, perhaps because of the example set by the very early incumbents--De Valera, for example, who held the office for two full mandates, on into his early 90s--have shown exemplary self-restraint in exercise of their part codified/part Conventional powers by the head-of-state. The last two Irish Presidents Mary Robinson and Mary McAleese, have been distinguished jurists in their own right and women, the latter, the present incumbent, having been re-elected unopposed for a second mandate. In India, the President is elected by a more complicated regional, indirect system and has, with the recurring multi-party, no-clear-majority election results of recent decades, often been pro-active in exercising the office's discretionary powers, but this without any apparent sense of self-aggrandisement or subsequent popular complaint.

In Canada, the effective Canadianisation of the office, in symbolic terms at least, with Vincent Massey's selection, and the absence of any real opportunity or occasion, since the King-Byng crisis in 1926, of using or abusing the residual Prerogative powers, has facilitated a change in the personality and character of the appointee chosen by the federal government,--away from military men and jurists as in yesteryear, to someone (male or female) who might today be seen to reflect the new plural-culturalism of Canadian society. Incidentally, the succession in Ireland in the most recent years, of two well-respected and well-liked women, and also the Canadian experience with our second and third woman heads-of-state have been noted elsewhere in the Commonwealth and apparently influenced in Australia the recent choice of the...