Introduction

Members of Parliament on the Opposition benches need to stop asking the Governor General of Canada and the Queen of Canada to overthrow Responsible Government. This should go without saying, but, alas, it does not. Responsible Government has so effectively reconciled the medieval principle that the Queen can do no wrong with the modern principle of democratic self-government that sometimes even Members of Parliament themselves in opposition call on the Governor General to assume the mantle of a wise and just philosopher-king when they can only but protest the ministry’s policies. We’re all happy with Responsible Government — except when things don’t go our way.

Over the last five years, we’ve seen several examples of this phenomenon, notably from Liberal MP Bob Rae in 2011 (as he was at the time), the lone Green MP Elizabeth May in 2012, and now from Conservative MP Michelle Rempel in 2016.

Three Bad Precedents

In 2011, Bob Rae, then the interim leader of the Liberal Party, sent a letter to Governor General Johnston and asked that he delay giving Royal Assent to a bill that the House of Commons and Senate had passed correctly.

As Leader of the Liberal Party, I would ask most respectfully that full consideration be given to awaiting final disposition of this matter before the courts before legislation receives Royal Assent.

As leader of the Liberal Party, Bob Rae had no standing to advise the Governor General on any constitutional matter. Interestingly enough, Rae had also presumed in one of his questions in the House of Commons that Cabinet has the authority to “ask the Governor General to give royal assent to the law”. In fact, the Governor General does not grant Royal Assent to bills on the advice of Cabinet, but rather, as the preambles to most bills say, “by and with the advice and consent of the House of Commons and Senate.” The Parliament of Canada consists of the Queen, Senate, and Commons. In other words, the Governor General gives Royal Assent in his capacity as representing the Queen of Canada as legislator, not the Queen as executor.

Not to be outdone, Elizabeth May, Leader of the Green Party and its lone MP, one-uped Bob Rae and wrote a letter to the Queen of Canada dated 30 August 2012 and appealed to Her Majesty to undermine Responsible Government. Specifically, May asked the Queen to act in place of the Governor General and substitute the advice in her letter for the advice of the Canadian Prime Minister and Cabinet in order to call a royal inquiry on the conduct of the 41st general federal election, which would “restore Canada to a free and fair democracy.” After all, nothing could restore democracy more quickly than undermining Responsible Government itself. The Palace wrote back on 18 March 2013 and provided May with a succinct response on how Responsible Government works:

“Perhaps I should explain, however, that this is not a matter in which the Queen would intervene. As a constitutional Sovereign, Her Majesty acts through her personal representative, the Governor-General, on the advice of her Canadian ministers, and it is to them that your appeal should be directed.”

If you understand the subtleties upper class British English, then you have no doubt also spotted the hilarious condescension that Elizabeth May received and so richly deserved. “Perhaps I should explain,” “which you feel is currently being infringed,” “Nevertheless, “Her Majesty was interested to know your views.”

Michelle Rempel, Conservative MP and aspiring future leader of the Conservative Party, has continued in the deplorable tradition of Bob Rae and Elizabeth May by not only spreading misinformation about the established constitutional positions of the Governor General and Prime Minister in our system of Responsible Government works, but also by calling on her Twitter followers to bombard His Excellency with irrelevant and non-constitutional opinions on why he should overthrow Responsible Government and refuse to implement the Prime Minister’s constitutional advice.

.@GGDavidJohnston is the federal viceregal representative of our head of state. @JustinTrudeau technically can't order him anywhere. https://t.co/dmxUtidcz4 — Michelle Rempel, MP (@MichelleRempel) November 28, 2016

Rempel says, “Governor General Johnston is the federal viceregal representative of our head of state. Justin Trudeau technically can’t order him anywhere.” Rempel says, “Governor General Johnston is the federal viceregal representative of our head of state. Justin Trudeau technically can’t order him anywhere.” She further suggests that her follows contact Rideau Hall and ask that the Governor General not represent Canada at Castro’s funeral. Technically, Trudeau can in fact order Johnston to represent Canada at the funeral of the late Cuban dictator Fidel Castro. Rempel is wrong on this matter of fact — and, frankly, as a current Privy Councillor and former cabinet minister, she should know better. The normative question as to whether Prime Minister Trudeau ought to advise Governor General Johnson to represent Canada at the funeral is separate from the fact that, constitutionally, he is well within his rights to do so. And since the Governor General acts on ministerial advice, Trudeau must still take responsibility for Johnston’s attendance just as much as if he himself had decided to go, which was almost certainly his original intention before the controversy around his deplorable and obsequious white-washing of Castro’s dictatorship erupted. Canadians and MPs may write letters to His Excellency expressing their personal opinions, but under no circumstances could the Governor General act in accordance with public opinion against the advice of his ministers.

To be fair, Bob Rae and Elizabeth May seemed far more committed in their appeals to the Governor General and Queen, respectively, to overthrow Responsible Government, since they wrote formal letters to them, than does Michelle Rempel, whose tweets seem half-hearted. While, as a matter of policy, I share Rempel’s disdain for Prime Minister Trudeau’s obsequious and mendacious white-washing of Fidel Castro’s dictatorship, our response cannot involve undermining our own system of government.

Conclusion: What Responsible Government Means

At its core, Responsible Government is a trinity (three in one) of responsibilities: ministerial responsibility to the Crown, individual ministerial responsibility before the Commons, and collective ministerial responsibility & solidarity before the Commons.[1] In this manner, Responsible Government therefore preserves and fully incorporates the medieval principle of Royal Infallibility and reconciles it with liberal democracy and self-government: the Queen can still do no wrong because it is the ministry which takes responsibility for all acts of the Crown, for good or ill. Responsible Government means that “Ministers of the Crown take responsibility of all acts of the Crown”[2] and that the Governor General acts on and in accordance with ministerial advice, save for exceptional circumstances.[3] These acts include accepting responsibility for one’s own appointment as Prime Minister, the dismissal of one’s predecessor, and for dissolving parliament. Logically, therefore, we cannot drive a wedge between the Queen or Governor General on the one hand and the Prime Minister and Cabinet on the other; under no circumstances could the Queen or Governor General act independent of ministerial advice on matters of state, and only under exceptional circumstances could the Queen or Governor General act contrary to ministerial advice.

The Queen or Governor General can only refuse to promulgate ministerial advice in exceptional circumstances because the consequence of exercising such discretionary authority is equally and proportionately exceptional: the Governor General thereby dismisses the Prime Minister and ministry which tendered the original constitutional advice and must appoint in their place a new Prime Minister and ministry which can then take responsibility for the Governor General’s decision to refuse advice and force the dismissal of their predecessors.[4] Ultimately, the Constitution Act, 1867 does in fact partially codify these basic principles of Responsible Government, contrary to scholarly belief.[5] Section 10 states that the Governor General acts “on behalf of an in the name of the Queen,” section 12 states that the Governor General acts alone (thus, conventionally, on the Prime Minister’s advice) or on the advice of the Privy Council (thus, conventionally, on the Cabinet’s advice), and section 13 further clarifies that the Governor-in-Council refers to “the Governor General acting by and with the advice of the Queen’s Privy Council for Canada” (and thus, conventionally, on the advice of Cabinet). Furthermore, sections 53 and 54 state that money bills must be introduced by the people’s elected representatives in the House of Commons and that the Ministry must take responsibility for, and therefore give sanction to, all money bills.

One must distinguish discretionary policy matters from necessary constitutional norms. Obviously, based on my post yesterday, I disagree with the Prime Minister’s policy on and general attitude toward Cuba, but that does not warrant calling into question the system of government itself. It is the Prime Minister who takes responsibility for the constitutional advice that he tenders to the Governor General, and it is therefore Prime Minister Trudeau who must respond to all criticism for having advised Governor General Johnston to attend and represent the Dominion of Canada at the funeral of the late dictator Fidel Castro. We must never let MPs or Cabinet Ministers themselves forget who takes responsibility before the Commons and the people for all decisions of government.

Responsible Government becomes untenable and impossible if the Governor General can simply refuse to act on the Prime Minister’s advice without reason or consequence.

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[1] Robert Macgregor Dawson, “The Constitutional Question,” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.

[2] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102.

[3] R. Macgregor Dawson, The Government of Canada. 5th ed. (1970), revised by Norman Ward (Toronto: University of Toronto Press, 1947): 175.

[4] Sir John George Bourinot, Parliamentary Procedure and Practice. 1st ed. (Montreal: Dawson Brothers Publishing, 1884): 58.

[5] Janet Ajzenstat, The Once and Future Canadian Democracy: An Essay in Political Thought (McGill-Queen’s University Press, 2003), 64, 66-67.