The Coming Constitutional Crisis
This week I couldn’t help but have a feeling of deja vu. Here we are again, during the holiday season, with a Prime Minister ducking his fellow parliamentarians and a united opposition demanding that Canada’s Governor General remove him from office. It all feels very December 2008.
While Canadians will likely tune out the antics in Ottawa during the holidays, I fully expect the opposition parties to return to the warpath full-time in January. The revolt against the PM, which for now is comprised of a resignation letter from his Finance Minister and letters from the leaders of the Conservatives and the NDP, will grow into a much louder chorus of calls for him to step down in early 2025.
Those calls will build on the ones that have already been made, primarily by the Leader of the Official Opposition, Pierre Poilievre, who has argued that the PM can be removed from office by the awesome power of Parliamentary stationery.
NDP Leader Jagmeet Singh’s letter promises to vote down the government at the next confidence vote but does not join Poilievre in suggesting that head counts by party leaders outside of Parliament are sufficient proof that the PM no longer holds the confidence of a majority of the people’s elected representatives.
To understand what it would take for Prime Minister Trudeau to leave office, we have to understand the structure of our constitutional monarchy, the role of the Governor General within Canada, and why we can’t simply rely on solutions from other constitutional monarchies to navigate this situation.
Our Constitutional Monarchy
Canada is a constitutional monarchy which means we have both a monarch (currently King Charles III) and a parliament comprised of representatives (known as Members of Parliament) directly elected by the public to the House of Commons (lower chamber) and a Senate chosen by appointment (upper chamber). The elected representatives choose a leader from within their ranks to serve as our Prime Minister.
Usually, the PM is the leader of the party with the most seats in the House of Commons, but can also be a leader chosen by a group of parliamentarians who together hold a majority of the seats in that body. The key thing here is that the PM must gain and maintain the support of a majority of elected MPs in order to earn a mandate to govern from the country’s citizens.
In our system, the King serves as the Head of State, while the Prime Minister serves as the Head of Government. Since our Head of State is the monarch of multiple nations and lives abroad, he also has a representative within Canada called the Governor General who carries out the King’s duties as the Head of State. Importantly, the Governor General is not the head of State herself— she merely carries out the duties of the King in his absence (even our Governors-General sometimes get this wrong!).
The History of Canada’s Constitution
The modern legal concept of Canada was formed under the passage of the British North America Act, 1867. It founded the Dominion of Canada out of Indigenous territories and those occupied by French and English settlers in what was then known as Canada (Quebec and Ontario), Nova Scotia, and New Brunswick. This Act formed our parliamentary system and acted as our Constitution. It did not, however, establish Canadian sovereignty over our land, people, and government from the United Kingdom or its monarch.
In the aftermath of World War I, Canada and other “Dominions” of the United Kingdom sought more independence in domestic and foreign decision-making. An Imperial Conference was held in 1926 and attended by the prime ministers of Commonwealth Nations (countries that were former colonies of the United Kingdom and still had the King as their Head of State). This conference issued the Balfour Declaration of 1926, which stated that these nations would now be considered equal in “domestic and external affairs” and united only in their “common allegiance to the Crown”.
As a result, The Statute of Westminster, 1931 was passed in the UK Parliament to end the authority of the United Kingdom over other Commonwealth Nations and legally recognize them as independent states. Canada would go on to introduce the Canadian Bill of Rights in 1960 that would create rights-based protections for individuals not already recognized in the Constitution.
Finally, in 1982, the Constitution was “repatriated” so that Canada’s federal and provincial legislatures had the power to make changes to our own constitution rather than seeking ratification from the Parliament of the United Kingdom. The patriated constitution, now called The Constitution Act, 1982, laid out the governing rules of our country, the rules for amending the Constitution, and also created a new Charter of Rights and Freedoms.
Two failed attempts to amend our current constitution took place in 1987 and 1992. Known as the Meech Lake and Charlottetown Accords, these failures to amend the Constitution did demonstrate the new patriated amending process that replaced constitutional requests made to the Parliament of the United Kingdom.
Letters Patent and the Duties of the Governor General
While the role of the Governor General is laid out in our modern Constitution, the duties of the Governor General are largely found in a document called “Letters Patent Constituting the Office of the Governor General of Canada (UK), 1947”, otherwise regularly known as the Letters Patent.
The Letters Patent was used as far back as the 1600s in “New France” and later adopted by the British monarchy in British North America. It outlined the “prerogatives” or decision-making powers of the monarch in colonial lands managed in the monarch’s absence by a Governor. This is where the concept of United States Governors and Governors-General comes from.
Initially, a Letters Patent was created by the monarch and given to the Governor General as a set of instructions for each term in office. After 1878, the Letters Patent became more general and only periodically updated by the monarch as political circumstances in Canada changed.
The duties were updated and expanded in 1947 by King George VI (Queen Elizabeth II’s father) to allow for the Governor General to carry out more of the King’s prerogatives, such as granting Royal Assent to legislation passed by the Canadian Parliament. This finally allowed Canada to pass its own laws without waiting for the King to make them official.
Many of the remaining prerogatives not granted in 1947 were added in subsequent decades, however, royal prerogatives such as the appointment of Governors-General and the design of Canadian coinage remain with the King to this day.
The Constitutional Duties of the Governor General
The patriation of the Constitution has led many experts to now see the role of our Head of State, the King, as to “reign rather than rule”. This means ensuring the country’s democratic machinery works without incident. The administrative duties of the Governor General include:
- Swearing in the Prime minister, Cabinet ministers and the Chief Justice of Canada
- Summoning, proroguing and dissolving Parliament
- Delivering the Speech from the Throne
- Granting Royal Assent to legislation passed in Parliament
- On the advice of the PM, appointing members of the Privy Council, Lieutenant Governors and certain judges
- Signing orders-in-council
Beyond these administrative tasks, the Governor General’s role is also to “advise, encourage and warn” the Head of Government, the Prime Minister of Canada.
The Constitutional Crisis of 2008
It turns out, even with over 150 years of constitutional tinkering and detailed scholarship on the role of our Constitution, Parliament, Prime Minister, Governor General, and Monarch, there is still room for interpretation when it comes to how our political system functions.
The only time our system was truly tested since the patriation of the Constitution was in 2008. That fall, Prime Minister Stephen Harper had argued that his short-lived minority government had hit an oppositional wall in the House of Commons and could not produce more for Canadians during that mandate. Instead, he sought a new mandate by asking the Governor General to call an election. She did, but when the results came in on October 14, the Harper Conservatives still fell 12 seats shy of their desired majority.
On December 1, 2008, when the government tabled its fiscal update to respond to the global economic crisis, the opposition parties were underwhelmed. They responded by pulling together a coalition governing agreement that would see the Liberals, NDP, and Bloc form government together. They informed the Governor General that they collectively had the confidence of a majority of MPs in the House of Commons and would be ready to govern should the sitting government fall. With a no-confidence vote scheduled on December 8, and the fact that an election had just been carried out, they argued that the Governor General should ask them to govern rather than hold another election.
Instead, PM Harper visited the Governor General and asked her to prorogue Parliament. If the House wasn’t sitting, his government couldn’t fall on a confidence vote. She reluctantly agreed. By the time MPs returned to Parliament, the opposition coalition had fallen apart and PM Harper did not face election for another two years.
The Prime Minister and the Governor General
You’ll remember a few moments ago I mentioned the administrative duties of the Governor General and her role in advising the Head of Government, the Prime Minister. If you read it carefully, you might have noticed that nowhere in the saying “advise, encourage and warn” is there any mention of making decisions for the Prime Minister.
That’s because serious constitutional scholars believe that the Governor General must go along with the advice of a sitting Prime Minister and that even her ability to exercise the prerogative powers of the King to summon, prorogue, and dissolve Parliament are subject to the Prime Minister’s advice.
Professor David E. Smith, who passed away last year after serving as Canada’s “foremost living scholar of the Canadian Crown”, said as much in his book “The People’s House of Commons: Theories of Democracy in Contention.” Here’s an excerpt on the Crown’s prerogative powers:
Smith’s take, then, is that the Governor General can only carry out acts solely on the advice of the Prime Minister. Not the Leader of the Official Opposition, other opposition leaders, or even her own opinions. During his life, Smith advised several Governors-General on these types of constitutional questions. This is likely the same advice Michaëlle Jean received from constitutional experts when she deliberated over the 2008 crisis as Governor General.
This means the Governor General’s prerogative power to call an election is only actionable if the PM requests it; if the PM has advised her that an election date fixed in legislation has arrived; or if the PM has informed her that he no longer holds the confidence of the House of Commons after failing to win it in a confidence vote.
Only once in our history has the Governor General gone against the specific advice of the Prime Minister. This happened in 1926 during the famous constitutional crisis, the King-Byng Affair. Prime Minister King went into the 1925 election as the sitting Prime Minister. He narrowly lost but asked Governor General Byng to allow him to attempt to win the confidence of the House. King won that confidence for a time with the support of his Liberals and the Progressive Party. However, he eventually lost a vote of confidence and requested Byng call another election.
Byng thought it was too soon to hold another election and instead asked the Conservatives, who had won a plurality of seats in the last election, to form a government under a new Prime Minister, Arthur Meighen. The Conservatives quickly lost the support of the MPs in the House of Commons and Byng was forced to call another election anyway. King had established an election pact with the Progressive Party, and together, the Liberals and Progressives formed the next government with King as Prime Minister.
Today’s Looming Crisis
This brings us back to Pierre Poilievre’s letter to the Governor General demanding she remove the Prime Minister from office and call an election, despite no such request from the Prime Minister; no recorded loss of a confidence vote by the Prime Minister in the House of Commons; and no fixed election date having arrived.
Despite this, opposition calls for the Governor General to act will continue. You might be wondering, with the King-Byng Affair as our only domestic example of a Governor General replacing a Prime Minister, how do the opposition parties expect to win this argument? Based on the talking points I’ve seen so far, I expect them to invoke a crisis from a fellow Commonwealth nation: Australia.
The 1975 Australian Constitutional Crisis
In 1975, Australia faced its own constitutional crisis. Three years earlier, a Labour Party politician by the name of Gough Whitlam became Prime Minister of Australia after beating a coalition government that had been in power for 23 years. Labour had a nine-seat majority in the House of Representatives; however, the Senate was stacked against the party and rejected several pieces of Labour legislation.
Whitlam asked for what’s called a ‘double dissolution’ election where every seat in the Senate and House of Representatives is up for election (unlike Canada, Australia elects both chambers). Labour gained seats in the Senate but ended up shrinking its majority down to five seats in the House. Whitlam used section 57 of the Australian Constitution to hold a joint-sitting of Parliament to pass several bills.
The opposition responded by using its Senate majority to prevent the passage of appropriation bills that had been introduced to finance government expenditures. The opposition refused to end its bill blocking unless the Prime Minister asked the Governor General, John Kerr, to call a new election. Finally, Whitlam did visit Kerr but only to request a half-senate election to break the deadlock in Parliament.
Instead, Kerr dismissed Whitlam as Prime Minister and appointed opposition leader Malcolm Fraser as a “caretaker” Prime Minister on the condition that he request a new election after passing the appropriation bills in order to keep the government functioning. Fraser passed the bills, requested a double dissolution election, and his coalition was elected to a majority government.
Why Australia Sets No Precedent for Canada
The problem with any suggestion that Australia’s constitutional crisis could serve as a precedent in Canada’s current political upheaval is that, while Canada and Australia may share a monarch, we have very different political systems. Australia has a House of Representatives, while we have a House of Commons. Australia elects its Senators while we appoint ours. Australia has mandatory voting, while ours is completely optional.
Our different constitutional histories also separate us further. The Statute of Westminster, 1931 made it clear that Canada and Australia were both independent nations no longer beholden to the rules of the UK. But this also created a point of divergence in constitutional design and authority thereafter for both nations. The patriation of the Canadian constitution in 1982 further separates our system from our friends down under, who last updated their constitution in 1977. Missing from their document? A Charter or Bill of Rights.
For these reasons, comparing the political systems of both countries is like comparing apples to oranges.
Looking Ahead to January
Given these substantial differences, the best precedent for constitutional questions in Canada remains our own history, especially more recent history following patriation in 1982. That leaves us with just the 2008 crisis as a reference for the current situation in Ottawa.
Now like then, precedence, convention, and expert commentary suggest that the Governor General will ultimately follow any request by the current Prime Minister to prorogue Parliament and face the people’s elected representatives when the House of Commons sits again.
Theresa served as Director of Communications to the Deputy Premier of Ontario and has over a decade of experience working in Canadian politics. She had a front-row seat to the constitutional debates of the early 2000s as an undergraduate student living in Ottawa during the minority governments of Prime Ministers Paul Martin and Stephen Harper.
