The Governor-General is the guardian of our Constitution, not the government’s puppet or public relations figurehead

Thanks to a 40-minute segment on CBC Radio’s Cross-Country Check-up in mid-April, I became unhappily aware of the fresh batch of nonsense now circulating about the position of Canada’s Governor-General.

The trigger for the discussion was a rumour that Mme Michaëlle Jean’s term will likely not be extended when it ends later this year. This has led to a blossoming of speculation about who should be appointed in her place. Several names were mentioned early in the program as potential nominees, but there was nothing about any qualifications those individuals might have for being Governor-General. The same lack was evident when Mme Jean’s “performance” in the job was discussed.

As the talk ranged from her “flair and style” to her famous dinner of seal meat, I kept wondering if there would be any consideration of the real issues surrounding the controversial and much misunderstood office of Governor-General. By and large, there was none. Instead, the program served as a muddy window onto the dismal landscape of public ignorance about the role of the Crown in our system of responsible government.

That role was something my father, the late trade unionist and political watchdog Senator Eugene Forsey, was an expert on. His writings on the “reserve powers” of the Crown included his 1943 doctoral thesis on the Royal Power of Dissolution of Parliament (reprinted twice since), a whole section of his 1974 collection of constitutional essays, “Freedom and Order,” and innumerable articles, speeches, and media interviews. So, as I listened to the fantasies and misconceptions being spouted on the radio that Sunday afternoon, I could hear Dad turning over in his grave.

From among the boxes filled with his writings that still surround me as I finalize the manuscript for my book on his legacy, I quickly retrieved some of his pungent and informative remarks on this subject, e-mailed them to the CBC, and then phoned in. The time allotted to the topic ran out before they got to me, but meanwhile I ended up with a whole new wad of unwelcome evidence of how little Canadians know — or perhaps even care — about the way our democracy is designed to work.

Before reviewing some of the foolishness aired on that program, let’s recap why this whole question is so important. As the representative of the Crown in Canada, the Governor-General stands above politics. Our Constitution puts the vice-regal office completely beyond the reach of the partisan machinations and power-mongering which have so disgusted Canadians in recent years and led many to swear off politics and politicians altogether. Unlike a prime minister or a president, the Governor-General must be impeccably impartial, for the Crown represents the common interests of the citizenry as a whole, not the partisan interests of any government or party.

This is the basis of the oath of loyalty to the Queen that has long been required of anyone becoming a Canadian citizen, accepting elected office, or taking a military or civil service job. The oath reflects the fact that citizens and public servants owe their allegiance, not to the particular government that happens to be in power, but to the common good of the whole nation.

The constitutional responsibilities of the Governor-General are very real, extending well beyond the symbolic to embrace a unique role in Canada’s democratic process. Her mandate is to safeguard the process itself, ensuring that the protections built into our Constitution are activated whenever they are needed. “The only good government is self-government,” my father wrote. “[It is] our business …to govern ourselves. [It’s] the Queen’s business to see that our power to govern ourselves is preserved, and that her servants, our servants, do not become our masters.”

How do the Queen’s representatives in Canada fulfill this vital function? The classic Forsey booklet, How Canadians Govern Themselves, explains: “The Governor-General and the Lieutenant Governors have the right to be consulted by their ministers, and the right to encourage or warn them. They almost invariably must act on their ministers’ advice, though there may be very rare occasions when they must, or may, act without advice or even against the advice of the ministers in office.”

It is on those “very rare occasions” that the Governor-General must actively play her essential safeguarding role. When situations arise where constitutional principles themselves are at stake, it is her duty to uphold the constitution by exercising the “reserve power” of the Crown. For the sake of democracy itself, she must ensure that the people’s elected House of Commons is allowed to perform what my father called “its most essential function… to decide who shall form the government.”

A year-and-a-half ago, Conservative Prime Minister Stephen Harper asked the Governor-General to prorogue Parliament when a motion of non-confidence was pending against his government. A general election just weeks before had returned a House of Commons where no party had a majority. Now Harper’s minority government was embroiled in a mess of its own making, and an opposition coalition stood ready to form a new cabinet and govern with the support of a majority of MPs. All that was needed was for the Governor-General to allow that democratic process to proceed.

Four decades earlier, Eugene Forsey had hypothesized just such a situation. “If a Prime Minister tries to turn parliamentary responsible government into unparliamentary irresponsible government, only the Crown can stop him; only the Crown can keep government responsible to Parliament and Parliament to the people; only the Crown can prevent the Prime Minister, prime servant, from degenerating into a prime despot, the whole process into an elaborate farce, swindling the public at the public expense, with the public helpless to protect itself.”

This is an uncannily accurate description of Prime Minister Harper’s December 2008 request for a premature prorogation of Parliament to thwart the democratic will of the House that Canadians had just finished electing.

What did Governor General Michaëlle Jean do with that outrageous proposal? Guided by the mixed advice of various “constitutional experts,” and apparently lacking her own adequate understanding of the fundamental principles of our Constitution, she agreed to the prorogation. In doing so she failed to uphold the essence of our democracy: the requirement that the government be responsible at all times to the elected representatives of the people.

It is important to note that this particular failure on the part of this particular Governor-General does not in any way constitute a binding precedent. The constitutional principles that were ignored in this case cannot be erased simply by the misguided decision of an individual holder of the office. Those principles remain in place, as solid and as essential as ever, regardless of the varied opinions of academics and advisors. It is those principles which must inform the decisions of every representative of the Crown; those principles which must always take precedence if our democracy is to revive and grow back to health.

It follows that all Governors-General and Lieutenant Governors, present and future, must have their own thorough understanding of and commitment to our Constitution and the principles that form its foundation. Then, if circumstances arise that require the exercise of their reserve powers, they will do as they must to defend responsible government. Otherwise, regardless of how conscientious and well-meaning they may be, the Crown’s representatives will be unable to properly weigh and measure the advice they receive from their ministers or from the “experts” they consult. This will leave them at the mercy of their most persuasive advisors, and could make us all sitting ducks for the machinations of Machiavellian politicians.

This throws a rather different light on the serious question of a successor to Mme Jean. Clearly, selecting a Governor-General cannot be reduced to the kind of popularity contest or “WWF-style staged competition” that some of the internet chit-chat and media speculation might suggest.

In Cross-Country Check-up‘s cursory glance at the subject in its April program, the scattered references to the Governor-General’s role in our governmental system were bland and uncritical. One guest “expert,” a political scientist no less, asserted that the real test of Mme Jean’s performance will be “what Canadians think.” The program’s host and most of the callers obligingly followed up by demonstrating that, for the most part, they did not think at all.

Several callers commented on Mme Jean’s “hospitality” and her “ability to reach out to Canadians.” Others proposed skiers or actors as potential nominees to replace her. There was a spurt of predictable nonsense about getting rid of “our link to Britain,” and a wildly concocted claim that the Fathers of Confederation had “intended” the Governor-General to be “an active political representative” — elected, and with the power to veto legislation. Host Rex Murphy abstained from correcting these republican fairy tales, and instead stayed firmly focused on the superficial.

The most sobering moment for me was a call from someone who had been polled by telephone about the next Governor-General. The caller wasn’t sure about the survey’s sponsor, but he thought it was the present government. The pollster had asked him to rank six names: General Rick Hillier, General John de Chastelaine, “Man in Motion” Rick Hansen, Inuit leader Mary Simon, Reform Party founder Preston Manning, and “The Great One” – Wayne Gretzky.

With all due respect to these people as distinguished individuals, I have heard nothing to suggest that any of them would possess the fully informed and utterly non-partisan civic understanding and capabilities needed to represent the Crown as demanded by our Constitution. To think of the public being polled on this kind of superficial and misleading basis is alarming enough. The insult to democracy is even more outrageous if it is actually the government or some political party testing the waters in this way.

Some thirty-odd years back, when a certain magazine article dismissed recent Governors-General as “nondescript” and poured scorn on the whole concept of constitutional monarchy, my father penned a white-hot response. “[The author’s] idea of what constitutes a man of distinction comes out plainly. What we should have as Governor-General, says he, is ‘a national hero like Bobby Hull or Jean Beliveau.’ This suggestion is so ludicrous that one is tempted to believe that [the author] intended the whole article as a comic turn, that he was just trying to be funny. If so, [it] is ‘une mauvaise comédie mal jouée.’ If he was not trying to be funny, then his suggestions of ‘national heroes’ show that he is [utterly] ignorant of the position and functions of a Head of State or the representative of a Head of State.”

In any consideration of potential appointments to the position of Governor-General, Eugene Forsey’s admonitions must be kept foremost in our minds. For, as he said, “The Crown is the embodiment of the interests of the whole people, the guardian of the Constitution, ultimately the sole protection of the people if MPs or ministers forget their duty and try to become masters, not servants.”

——

(Writer and activist Helen Forsey is the daughter of the late Senator and constitutional expert Eugene Forsey. Her book on her father’s legacy will be published next spring by Blue Butterfly Books.)