Sunday, 4 March 2012

Why the Governor General Won't Save Us

The current Robocall scandal represents a clear challenge to Canada's democracy. It threatens to undermine both the legitimacy of the previous election and the very institutions of governance, particularly Parliament. These are dangerous developments. Irate Canadians have taken to the streets in protest. This is surely a practical and vocal way of communicating dissatisfaction with the government. These protests are, in general, healthy expressions of outrage, yet some of the rhetoric and demands accompany them are unhelpful and troublesomely contradictory.

First, many are baying for blood and demanding immediate accountability. Laws, they say, have been broken and those responsible must be held accountable. The problem with this expeditious approach is that is attempts to remedy the transgression of the law while itself  ignoring the legal process they seek to restore. Justice is seldom so swift. Given the overlap between this issue and the recent fervour over the lawful access legislation which ignored rules of due process and presumption of innocence, the fact that those same courtesies - or rights, depending on the context - are not being extended now is problematic. The existence of robocalls is not proof enough of a massive Conservative party conspiracy and to ready the guillotine before the evidence has been parsed is not to respect to rule of law. Short of confessions from the guilty - highly unlikely - Canadians should be patient for the process to unfold as it should, in accordance with the rule of law.

Second, repairing the institutional damage done by this scandal will not come about by further disparaging the institutions of Parliament, the judiciary or other non-political actors. The speed at which many Canadians turned on Elections Canada solely for following existing protocol in accordance with the statute empower it - again, by rule of law - was alarming. Not content to paint the entire federal government as corrupt - shockingly so on the level of Russia or Iran - many suggested that Elections Canada was in the pocket of the executive itself. Nothing could be further from the truth, particularly given the degree to which Elections Canada has dogged the Conservative party over the last five years. Such accusations only serve to undermine the work being done and whatever findings emerge. 

Third, appeals to either the Governor General - or the Queen for that matter - are grotesquely idiotic. Setting aside the viability of such options [they are not], such a move seems entirely counter-intuitive. This amounts to an attempt to repair the damage done to electoral democracy by appealing to the least democratic and, perhaps, least legitimate part of government. The solution is to have an unelected individual decide the fate of government and prognosticate on what happens thereafter? It seems odd to make an appeal to such an anti-democratic historical vestige in order protest the abuse of the democratic process. 

There are practical reasons why such an appeal to the Governor General or the Queen are non-starters in the first place. The Queen is a figurehead, a mere repository of governmental power, few of which she could legitimately exercise. While there is still some debate as to the actual powers the monarch retains, the general trend is to assume that it is for the Governor General alone to exercise, the powers having been devolved first by proclamation in the early twentieth century and them, ultimately, by the severing of political ties with Britain.  No doubt, the fact that governance in Canada is built upon an elaborate fiction, in which powers are retained but never to executed, complicates matters. The constitutional theory and its corresponding reality often diverge significantly.

The Governor General is also constrained by constitutional practice. First, the GG exercises those powers delegated to him solely on advice. This, in essence, has been a practice that, at least in part, democratizes the Crown, by bringing key decisions closer to the people by way of an elected intermediary. Moreover, the GG lacks the power to 'appoint' a Prime Minister. The PM is chosen from among the House, essentially by the House. Prime Ministers are not fired. They are defeated in the House. It would be entirely unprecedented and wholly irresponsible for David Johnston to attempt to 'fire' a PM with the support of the House. Moreover, such a move would still result in a Conservative government.

Beyond calls for the GG to 'fire' the Prime Minister, there have also been calls for Johnston to invalidate results and call by-elections in affected ridings. Again, this is beyond the pale and contorts the privileges of the Crown. In order for a writ to be dropped it must, again, come at the behest of the House, usually in the form of Prime Minister. Such moves worked largely based on advice. While there is some debate over when a GG should dissolve a Parliament - importantly, as a whole and not ridings on an ad hoc basis - it is worth remember that the last time the GG dissented from advice it resulted in a constitutional crisis. It is up to the courts to invalidate individual election results, at which time a by-election will  be called. There is absolutely no precedent for a Governor General to unilaterally call a by-election.

Finally, calls for the Governor General to withhold Royal Assent to acts of Parliament is equally troublesome. To ignore the will of the democratically - and until proven otherwise, yes, it is a democratically elected body - elected assembly is self-defeating. Moreover, it simply will not happen. It is not for the Governor General to decide if a Parliament is legitimate or not, nor would it be wise - or indeed, democratic - for this kind of power to be divested here. Similarly, it is not for him to decide if an act of parliament is unconstitutional or illegal. The assumption is a bill - vetted by two houses of parliament and the justice department - will pass constitutional muster. If it is challenged, as laws often are, the appropriate place is the courts, which have both the expertise and legitimacy to do so. To ask the governor general to suspend Parliament is to harken back to the profoundly authoritarian days of absolute monarchy. Thankfully, however, for the Governor General to without assent is largely unthinkable. 

What this means is that appeals made to the Governor General or the Queen will be entirely fruitless. Beyond the fact that neither have the constitutional authority to do what is asked, the fact that so many of the calls are political in nature should give cause for pause. GG's are extremely reluctant to get caught in the partisan fray. Moreover, the prorogation crisis of 2008 [see Russell and Sossin] should illustrate that they are equally reticent to give into the populist sentiment of the time. At times of political crisis, throwing the Constitution out the window is not particularly helpful. 

The wilful ignorance of the principles underpinning Canada's system of governance is astounding. Beyond this, the sheer volume of self-defeating calls to address something as fundamentally anti-democratic as voter suppression by appealing to other existing anti-democratic institutions is troubling. The preamble to Canada's constitution affirms the country's foundation of respect for the rule of law. Calls for such swift movement for accountability, naming the guilty without proof or process, are as antithetical to this foundation as those individuals culpable in this scandal. Expediency in process will not hasten accountability but runs of the risk of further delaying it. The first steps are underway. Entreating salvation from a distant monarch will not restore faith in the electoral system or our political institutions. The Queen - and her representative in Canada, the GG - will remain mute on the subject, demonstrating far greater faith in democratic and judicial processes than is evidenced by her loyal subjects.

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