The Governor General has a limited number of discretionary powers that are remnants of the prerogative power of the Crown – reflecting the notion that the monarch (and her representative in Canada) act as the guardian of the constitution and protector of the public interest. Chief among these are the Governor General’s responsibility to ensure that we always have a Prime Minister in office and a government in power and to receive and deal with any requests from a Prime Minister to dissolve Parliament.
Such requests were straightforward until October 1925, when Mackenzie King’s Liberal Government was defeated in a federal election, falling to only 101 seats, compared to 116 for the Conservatives. But King did not resign; instead he persuaded the Governor General, Lord Byng, that he should be allowed to meet the House of Commons and attempt to govern. King’s actions were entirely within his rights. Canadians don’t choose their government; they choose the House of Commons and it decides who governs by supporting one party or another. But when King asked the Governor General to dissolve Parliament after only six months, Byng refused, and then asked the Conservatives to form a government when King resigned from office in anger.
But why are we discussing events of almost a century ago, I hear you cry! Because this same issue has come up on several occasions in much more recent times. In 1972 Pierre Trudeau lost many seats and ended up with only two more than the Conservatives. Trudeau governed for a year and half, lost a vote in the Commons, obtained dissolution, and won a majority. In 1979 Joe Clark formed a minority government which lasted only nine months. His request for dissolution was granted and Trudeau returned to office with another majority. As further minority governments occurred in the ensuing decades, the conventional wisdom was that a government needed to survive for upwards of a year to be assured that a request for dissolution would be granted by the Governor General.
The Mythical Move to a Fixed Term
Uncertainties surrounding dissolution seemed to disappear in 2007, when the Conservative Government of Stephen Harper passed legislation establishing a fixed four year term for the Commons, with an election scheduled for the third Monday of October every four years. The rationale for this change was to prevent Prime Ministers from calling snap elections when it suited their purpose. Because the principle of responsible government continues to apply, however, an election could be held before the end of the four year term if a government lost the confidence of the House of Commons.
Ironically, only one year after the new fixed term was established it was ignored – by the Prime Minister who had created it. In September 2008, Harper asked the Governor General (Michaëlle Jean) to dissolve parliament because “it had become dysfunctional” and he required a new mandate. This is in no way a justifiable grounds for dissolution in my view, but the Governor General granted it. The validity of this decision was upheld by the Federal Court of Canada in a November 27, 2008 ruling. Supporters of this position point to the first clause in the fixed term legislation which states that “nothing in this legislation affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.” With respect, I find this a nonsensical interpretation. If this clause means that a Governor General must call an election whenever a Prime Minister wants one, then the whole notion of a fixed term is meaningless.
Where Does This Leave Us?
Since the dramatic episode of Byng-King, it has gradually come to be accepted that if a government survives for upwards of a year, a Governor General would be expected to accept a request for dissolution. Even after the establishment of a fixed four year term, the court held that the Governor General’s acceptance of Stephen Harper’s request for dissolution after only two years in office was valid. Justin Trudeau has been Prime Minister for almost two years and in my view the Governor General would have no option but to accept a request for dissolution from him. Both convention and the recent Federal Court decision support this view. If an election is called later this year, Jagmeet Singh can (and likely will) campaign on the crass political motives that prompted the Liberals to go to the polls early. But he has no basis for suggesting that dissolution should be denied, nor for advising the Governor General on this issue. If an election is held in the next few months, the voters will render their judgment.