As David Johnson Enters Rideau Hall...

The Crown’s role in our government needs to be understood
October 1, 2010

With the Queen's visit in the summer and a new Governor-General taking office this fall, the much-misunderstood Canadian institution of the monarchy is once again receiving public attention. Republicans and monarchists are back at their old debate, the former denouncing the Crown as a wasteful remnant of a colonial past, the latter applauding it as the epitome of dignity and tradition.

     As a daughter of the late constitutional expert Senator Eugene Forsey, my own take on the Crown in Canada is rather different.

     My father's lifelong attachment to the monarchy did, I admit, puzzle and even mildly irritate me for years. With his radical views on so many things, why would he cling so tenaciously to some quaint relic of a feudal age? Why would he, as a progressive Canadian nationalist, remain so obstinately loyal to a British institution, especially one which seemed to symbolize not only arbitrary political authority, but social and economic hierarchy as well?

     As usual, though, when I delved further into this apparent contradiction in his thinking, it began to dissolve before my eyes. It wasn't that Dad liked everything about the monarchy. Even back in the 1930s, he publicly agreed with his friend Frank Underhill's condemnation of the "irrational mystical attitude" that some people had towards the Crown. I'm sure he would have been more than glad to see major reductions in royal wealth and the complete elimination of the hanky-panky now so often associated with the Royal Family. But he knew that none of those things was essential to the monarchy itself, and he was never one to throw out the baby with the bathwater.

     For him, the essence of the monarchy was its impartial representation of the common interests of the citizenry as a whole, as opposed to those of any particular government. He explained the importance of the Crown as a permanent and impartial entity in our democratic system, transcending the temporary and the partisan. In that context, the trappings which make the monarchy such an easy target – feudal custom, aristocracy, wealth, and trans-Atlantic geography – are all irrelevant. 

     "Responsible government means not only responsibility to Parliament or to the electorate," Dad wrote, "but also responsibility for the interests of the nation as a whole." Those interests, he stated, are represented by the Crown, "the symbolic embodiment of the people – not a particular group or interest or party, but the people, the whole people."

     It was the constitutional crisis of 1926, when my father was still a university student, that really got him hooked on the intricacies of the Crown's constitutional role. Mackenzie King's fragile Liberal minority government was facing defeat in the House of Commons on an Opposition motion of censure. But before the critical vote could take place, Prime Minister King took the unprecedented step of asking the Governor-General, Lord Byng, to dissolve Parliament and call a fresh election.

     Dad described King's request for a dissolution as "utterly unprecedented and subversive of Parliamentary government.

"Parliament showed signs of deciding against [King]," he wrote, "so he tried to prevent it from deciding at all. It was tantamount to allowing a prisoner to discharge the jury by which he was being tried... If the Governor-General had granted the request, he would have become an accomplice in a flagrant act of contempt for Parliament."

     Lord Byng refused the requested dissolution for exactly those reasons, insisting that the existing elected House must be allowed to decide if it could function with an alternative government. King resigned, and Conservative Opposition Leader Arthur Meighen became Prime Minister.

     In the heated controversy that followed, King claimed the Governor-General had no right to refuse to dissolve Parliament. King maintained that the Crown was, in effect, merely a rubber stamp which must grant whatever request the government might make. Meighen, on the other hand, denounced King's demand for dissolution as a shameless attempt to hang onto power and avoid imminent defeat by the people's elected representatives. My father was adamant that Meighen was correct, and that Byng's refusal was not only "completely constitutional, [but] indeed essential to the preservation of parliamentary government.”

     If this sounds rather familiar, so it should. In December 2008, Stephen Harper managed to persuade Governor-General Michaelle Jean to prorogue the recently elected Parliament before it could pronounce judgment on his government in a confidence motion. It had been 82 years since Canadians had been subjected to such flagrantly subversive behaviour by a Prime Minister, and this time, shamefully, it succeeded. If my father were still alive, his denunciations would have been ringing from the rooftops.

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The inherent complexity and subtlety of this type of constitutional situation can make it hard for the general public to fully grasp the implications. That confusion gives an unscrupulous government plenty of opportunity to oversimplify and misrepresent, making much of the alleged conflict between popular democracy – supposedly embodied in the Prime Minister – and the constitutional mechanisms at the heart of responsible government, notably the "reserve powers" of the Crown, which gets portrayed as illegitimate.

     What then gets ignored is the fact that the role of the unelected head of state is constitutional, not political. The Queen and her representatives do not make political decisions; they simply ensure that the elected members in the House of Commons and the legislatures are allowed to make those decisions.

     As I have pointed out previously in these pages, the rarely used "reserve powers" of the Crown constitute an essential safeguard against the risk that a government in power could try to defy the will of the people's elected representatives in Parliament. And there is good reason why those reserve powers are so seldom used: except for Mackenzie King and Stephen Harper, no Canadian Prime Minister has ever had the gall to attempt such a flagrant subversion of our democracy.

     In the King-Byng affair, Mackenzie King's crude and cynical appeal to the politically unsophisticated succeeded in hoodwinking enough electors to put him back in office soon afterwards. He was still touting himself as the democratic hero of 1926 when my father published his Ph.D. thesis, The Royal Power of Dissolution of Parliament in the British Commonwealth in 1943.

     Dad's book was a scholarly and devastating denunciation of King's machinations 17 years earlier, and it turned Prime Minister King's protestations of injured innocence upside down. In the book, and in lively exchanges in the newspapers, Dad cited constitutional chapter and verse to argue that, if a government could have Parliament shut down whenever there was a risk that the Commons might vote against it, then parliamentary democracy itself was dead.

     For the first but certainly not the last time in his career, Eugene Forsey had taken an apparently obscure and technical constitutional issue and exposed it to the public as a matter of crucial importance for democracy. Using the pro-government press itself as a vehicle, he had demystified the King-Byng affair and shown its relevance to the freedoms ordinary people counted on.

     Dad also rejected the notion of the monarchy as a foreign relic of colonial times. For him, the title "Queen of Canada" was an accurate designation for an institution that had evolved throughout our history to be anything but foreign. The Crown, he said, "stands for a Canadianism which, while utterly loyal to Canada, looks beyond Canada. It reminds us that nationalism is not enough." As "Queen of a world-wide Commonwealth," the sovereign represents the rights and interests of people across the globe – an important element for anyone wary of narrow chauvinism.

     First Nations, too, have long understood the crucial importance of the Crown's role as the highest and most permanent representation of our national collectivity. The framework of equality and respect that should govern the relations among our peoples was defined centuries ago in wampum belts and other treaties between Aboriginal leaders and the Crown. It is time that Canadians learned to understand and honour the significance of good-faith agreements made by the Crown in our name.

     In regard to the constitutional aspect of the monarchy, the prorogations of 2008 and 2009 have re-awakened many Canadians to the central role of the Crown in protecting our democracy. As Dad made abundantly clear, only the Crown can stop a rogue Prime Minister from overriding the will of our elected Members of Parliament. Only the Crown can ensure that the House of Commons be allowed to perform its "most essential function" – that of deciding who should govern.

     My father was acutely aware of the sensitivity and complexity of the Crown's responsibility for upholding constitutional principles. He pointed out that, as "the indispensable centre of the whole parliamentary democratic order, the guardian of the Constitution, ultimately the sole protection of the people," the Crown must remain strictly neutral in political terms. That is why he insisted that the Governor-General and Lieutenant-Governors stay permanently aloof from partisan politics. Only by remaining utterly impartial can they hope to fulfill such a delicate and important role.

     This is always a key issue with any new vice-regal appointee. It is heartening that our incoming Governor-General, David Johnston, has so much of the expertise in law and public affairs that my father looked for in such an appointment. Johnston will not be easily led by the blandishments of "experts" with inadequate understanding of our Constitition. The only question is whether he could be led by political considerations.

     Even the most laudable political motives, such as those attributed to Mme Jean when she agreed to the 2008 prorogation, have no place in the Crown's decisions on the use of its reserve powers. The Queen's representative must not be swayed by any kind of political consideration – not by opinion polls, not by public pressure, not by the likelihood or otherwise of particular political consequences. Those things are for the people's elected representatives in Parliament to consider and decide. All the Governor-General can do is ensure that the democratic process is not sabotaged by what my father referred to as the "jacks-in-office."

     The role of Governor-General and Lieutenant-Governor is not a political role at all. It transcends politics. Their job is to ensure that the political process remains intact and is allowed to function. I hope that, in this most important aspect, David Johnston will provide a shining example of the vice-regal office, and that Canadians will accord him the respect his very special role deserves.

     Eugene Forsey's stubborn monarchism, then, was much more than an attachment to tradition, much more than just a question of not fixing what ain't broke. It expressed his wholly rational commitment to preserving both the democratic values and the practical advantages of the Canadian Constitution, in which the monarchy plays a quiet but vital part.


(Writer and activist Helen Forsey is the daughter of the late Senator and constitutional expert Eugene Forsey. This article is adapted from the manuscript of her upcoming book on her father's legacy, to be published next spring by Blue Butterfly Books.)