"..the Governor General, who is, of course, appointed by her Majesty Queen Elizabeth II..."
In the same way that the Popes for the centuries appointed the Grand Inquisitors of Spain: from a list of one submitted by the Kings of Spain. Michaëlle Jean was proposed in 2005 by the then Canadian Prime Minister, Paul Martin.
I'm not defending the arrangement or Mme. Jean's actions. But you really can't blame Elizabeth II for any of it.
The Governor-General of Australia got into even hotter water in 1975 over a parallel political crisis.
Most Brits would be glad if Canada and Australia repatriated their constitutions and got rid of the Governors-General. If they don't do it, it's because it would create more problems internally than it solves.
 

First as to the sole comment as I begin this, from one James Wimberly:

I cede to a wizard of Aus as to what the situation is down under - - but the fact is Canada's Constitution has been completely repatriated - or more accurately "patriated" - by a number of steps, but most dramatically two of them.

By way of background, the Canadian Constitution has two parts, the first kn own historically as the "BNA" [for British North America Act, being an act of the British Parliament, passed also by the English House of Lords and proclaimed by the then British monarch, Queen Victoria, in 1867.

The most important achievement of the BNA was in creating the "Dominion of Canada".

The most interesting feature of the BNA was its "enumeration" of national versus provincial powers. This was done by a fairly simple pair of lists, on "enumerating" items of federal business, or "exclusive jurisdiction", and the other "enumerating" items of provincial to the same end of identifying exclusivity.

A Canadian "province" is more or less what in the US is called a "state". Just as the US started with a lesser number of states, growing from 13 to 50 [so far], Canada, now with 10 provinces [not to mention 3 northern territories each large than the average country on the planet], started out as 4 provinces :

then and still the two largest and most populated:

Upper Canada - now Ontario;
Lower Canada - now Quebec;
and two dramatically smaller "maritime" provinces on the Atlantic, Nova Scotia and Prince Edward Island, or "PEI"

[For those who might be thinking "Prince Who?", let's just say Canada remains in characteristic denial over the obvious benefits of [1] re-naming PEI after its dominant characteristics, among which lobster boats and Anne of Green Gables feature prominently, and [2] stripping PEI of provincial status and facing up to the fact that all the Canadian territories, most national parks, some Canadian municipalities, some city parks and even some football stadiums better qualify for provincial status in terms of population and geographic area. Apparently the human population is divided, with Ed feeling the bridge to the mainland now finally disqualifies it from even being called an "island", and Chas holding out for the possibility it might fall down.]

But the resolution of squabbles between the federal government and the provinces, or any of them, was left to the Privy Council - - back in England. The first step them was in severing that part of the umbilical cord, which happened either in 1949, or when the very last Canadian case with a right of appeal to the Privy Council ended, some time in the 1960s.

The last vestiges of the umbilical cord were severed in 1982, near the end of the last period during which Pierre Trudeau was Prime Minister, a really large, fairly complicated process which ended up giving Canada a two-parted Constitution, one part being the BNA [again, to deal with federal versus provincial powers], and the other to deal with the fact that up to then there was no formal [or arguably an inadequate] constitutional recognition of individual citizenship rights - IE no equivalent of a number of the Amendments to the US Constitution, like the First, Second and Fourth, and no Declaration of Rights. This second part is known as the "Charter"

[for the Charter of Rights and Freedoms - - its had a bumpy ride so far, but nonetheless remains promising.]

To finish with Wimberley's point: Canadians don't waste any time worrying over what "most Brits" might think, because what Brits think is irrelevant to what Canadians self-determine.

As to the main point:

Things are pretty lively up here in the frozen tundra, especially for December, what with big protest marches and demonstrations ad mare ad mare. This might seem remarkable, given the extreme ennui with which Canadians have treated various recent provincial elections and the very recent federal election; but I think the US election woke us up, because, holy heck, jeez, eh: There isn't a Canadian alive who can remember a time when an American federal government was LEFT of ANY Canadian government. To tell you the truth, I think we're all a bit embarrassed up here about that - Harper's being a complete dick and our opposition being a bunch of chickens without heads kind of caught us by surprise - - anyway, sorry for all the noise we're making.

What's giving rise to this "constitutional dictatorship" talk is really just hyerbole made of ignorance.

As your post suggest, prorogation was always a parliamentary tool; it's just that nobody here ever thought to use it before.

That's a bit surprising, because the Canadian parliament has seen a lot of minority governments, in the nineteen twenties, through most of the nineteen sixties, and since Chretien retired.

Governor General Jean [who you folks might be surprised to learn is a Haitian born woman and not at all hard on the eyes] is catching a lot of heat from a lot of angles from her 'following the advice of the P.M',
[which ironically is what the modern GGs are supposed to do rather than act like royalists], but she sure didn't give in easy, as it took Harper twice as long as he budgeted to talk her into it. Jean had the benefit of constitutional legal advice during that session, including from Professor Peter Hogg, who is one of, if not "the", leading expert on the Canadian Constitution.

Your post also suggests that prorogation isn't supposed to be used except to allow for the government to 'reframe' the agenda for a given Parliament. Well, it sure hasn't happened the usual way, but in effect I think that's what Harper was driven to, and, I'm guessing but again Hogg way there and GG Jean is no dummy, that's what carried the day.

I think I should add that I'm far from a fan of Harper or his band of climate change deniers, flat-Earthers, fundies, neocons, Nordquisted nitwits, miscognyists, monsters, morons and rascists; moreoever, I hope he gets his just desserts out of this, being the same sort of historical notoriety as Bush seems likely to get down there.

Nonetheless, an d hateful as it is, I think the way this drama is playing out is well within tolerance for parliamentary democracy, Canadian style.
 

(with the acquiescence, of course, of the Queen's representative, who, I presume, is bound, in the modern world, to rubberstamp whatever the Prime Minister asks for, assuming that it is, as a technical matter, "legal")

You presume right

I know zip about the Canadian Constitution, but the appointee G-G must, decidely uninfluenced by the Crown but fully in the Westminster tradition, must be satisfied that the PM has Parliament's confidence and the Executive has parliament's vote of supply.

The subsidiary constitution arguments are to do with the time and latitude afforded a PM before the G-G reaches a state of terminal dissatisfaction.

Of course, if a G-G were of a Cheneyesque cast of mind ...
 

As the above posts explain, HM the Queen has separate legal personalities: and when acting as as Queen in right of Canada she acts on the advice of her Canadian Ministers and (generally) through her representative in Canada, the Governor-General.

In law, the summoning, dissolution and prorogation of Parliament are matters for the Royal Prerogative on which the Queen by convention acts on the advice of the Prime Minister for so long as the Prime Minister commands a majority in the Commons.

Prorogation is what technically happens between each session of the same parliament.

The Governor-General can be expected to follow the same principles in these matters as apply in all other countries of which the Queen is head of state.

The Canadian PM has been given a brief breathing space until the New Year and if by then he can assemble a sufficient majority to survive a vote of confidence, he will be allowed to totter on.

Otherwise it's either send for a successor who can command a majority or dissolution and elections.

Thus far, this is all in complete accordance with precedent in such matters.

The safety valve is that the Monarch need not follow the advice of a PM who cannot show command of a majority in parliament.

So one can assume that the embattled PM has been given a brief breathing space to see if he can pull a rabbit out of the hat in terms of parliamentary votes - no more than that.
 

Sandy:

You finally found an actual constitutional dictatorship worthy of the name. It is interesting to compare Congress' bipartisan enactments or ratifications of Bush policies that you consider "dictatorial" with Mr. Harper's action to suspend Parliament because of its hostility to his policies.
 

I am not prepared to represent that I know more about Canadian constitutional law than Sandy Levinson but two observations, at least, might be of interest:

1. a. The first is a more or less practical one. One of the country’s pre-eminent constitutional lawyers (many would say the pre-eminent Canadian constitutional lawyer) is one of the Governor General’s advisors in this affair. Likewise, one of the country’s pre-eminent political scientists (and a fervent student of the country’s Supreme Court), is said to be another. Rumour has it (such things are more or less confidential themselves, don’t you know) there are others.

These are persons of great stature entirely separate from the government and retained by her, to all reports, entirely on the authority of her office. It is close to a guarantee than neither of them would have taken on the job, or stayed on, if it were confined to nothing more than offering advice on the brands of tea and scones to be served when the Prime Minister came calling.

b. The meeting with the Governor-General in which the Prime Minister pitched the pro-rogation of Parliament took in excess of two hours, during which the Governor-General adjourned the meeting – it is said (such meetings are by tradition, and constitutional convention, confidential and secret) – while she consulted her advisors – and then returned to grant the request.

That is no rubber stamp.


2. The second relates to the rather murky foundations of a still significant part of Canada’s constitution and how it serves the country.

It may be close to psychically impossible to convey to scholars of an entirely written constitutional tradition, the American one, that – as much as they have written basic law– parliamentary democracies of the British tradition have roots that are also deeply planted have in unwritten (and therefore, perforce, somewhat malleable) constitutional conventions.

Canada’s constitution, both because the countryis a federated jurisdiction and because since 1982 the country has had a textualized Charter of Rights, is perhaps more remote from that original tradition than others, but recent events have landed the governance of the country’s affairs squarely in the middle of those flexible traditions.

In this context, it is simply wrong to suggest that the evidence is that the Governor-General in this case felt bound, reflexively, to grant the request for prorogation because it was the Prime Minister who was making it.

For the same reason, it is clear to suggest that the decision cannot stand as a precedent for such a proposition except in circumstances exactingly close to those in which it was made.

As one friend of mine put it, in this case, she chose pro-rogation as the “least, worst option:”Prorogation will allow the sustainability of the coalition or the will to bring down the government to be tested over the next six weeks. (The “least-worstness” of the decision has mostly to do with the suddenness with which the issue came on, the newness of the coalition which projected it, the newness of the government elected only six weeks before, the fact that the opposition has just allowed its program’s constating “Speech from the Throne” (a statement of the government’s legislative plan) had been properly passed in parliament only two weeks earlier) and that a full scale budget (a clear test of a government’s ability to command support, as a government, in Parliament) was set for only six weeks later at the end of January.

Lastly, it was done in circumstances in which, if there is indeed a solid base in Parliament for the eviction of this government and the installation of another without an election, the prorogation gives the Coaltion – a proposed new government – the chance to demonstrate that it has the political and practical coherence to do so.

In short, as foreign as it might seem to democratic ideals, the decision was calculated to allow the ordinary operation of parliament to determine the constitutional determination.

While it lacks the appearance of slam-dunk finality that wholly written, republican systems might seem to have (Bush v. Gore notwithstanding), there is a strong argument that it suits well subtlety of Canada’s political and legal culture which has not so much of the dominant homogeneity, the centralization of power, and the –relatively– atomistic dispersal of state-level power that a fifty unit, as opposed Canada’s 10+ unit federation seems to bring.

Indeed, as hard as it might be to swallow in a country of seemingly, firmly drawn, bi-polar constitutional juridicial choice like the United States, it seems very. very likely that it will appear that the system has been working to serve Canada perfectly well.
 

How unsurprising to find LSR Bart pontificating on the finer points of Canadian constitutional practice.

1. Prorogation simply means "adjournment". It is a power routinely exercised shortly before every Christmas, again at Easter and again before the Summer break.

2. The power resides in the Monarch and is exercised in her name by her Governor-General.

3. The Governor-General will act on the advice of the Prime-Minister unless there is reason to believe that the PM no longer commands a majority in the House of Commons.

4. In the latter case, then either the Governor-General will send for another person who can command a majority and ask him (masc includes fem)to form a government, or there will be a general election.

5. Because there has only just been an election, the Governor -General is unlikely to want to put the country to the expense of another one so soon.

6. The constitutional conventions in these matters are well-established and work perfectly well - indeed they provide a very workable model for dumping an incompetent or unpopular head of the executive before his ordinary term ends.

7. In that sense they could be said to work rather better than the US Constitution.

8. For what is is worth. I think this was a mistake on the part of the PM. While constitutional, steps tending to drag the Monarchy into the political arena are generally considered "bad form" by the electors and tend to get punished at the polls - but then, rumour has it that this PM has much in common with your soon to be ex-President - so that would explain a lot.
 

While I admit to having been skeptical of Professor Levinson’s proposals to scrap our 18th Century Constitution and join the modern and progressive world, this thread has totally changed my mind. I definitely want a system where important constitutional decisions are made by a hot Haitian woman appointed by a hereditary monarch.

Now all we have to do is find a couple of politically powerful American families that have been morally and intellectually enfeebled by generations of privilege and inbreeding, perform fertility testing on their eligible spawn, conduct an arranged marriage, and, voila, . . . change we can believe in.
 

Sorry about my bad link upthread.

Here's what I meant to link to.
 

MLS:- not a bad idea - but that may not be quite enough.

The constitutional role of the Monarch is to be kept informed, to advise and to warn. She has weekly meetings with the PM. In the case of HM Queen Elizabeth II, that means she has seen all important state papers since her accession and been privy to the experiences of all governments since 1952 - Winston Churchill was her first PM.

That level of experience might be hard to replicate - particularly if you go for the kind of person you suggest as the stock.

The standard way out is to select a suitable younger son or daughter from an existing royal line and offer him or her the throne. Northern Europe might be best in which case there would be a choice between, for example, Belgium, Denmark, Norway, Sweden, the Netherlands and the United Kingdom.

Most Royal Families have quite a few "spares". Royal women tend to greater longevity and a royal family does, of course, save a lot of money because a state funeral and a coronation every generation is a lot cheaper than an election every 4 years.

Even cheaper, why not apply to become a dominion like Australia or Canada. HM would surely be happy to appoint a Royal as Governor General until you had trained one up and I'm sure we could knock up a standard dominion constitution in no time (there are plenty of precedents).

You could even sort out the Anthem easily - "My Country 'tis of Thee" uses the same tune and it's less demanding on those who are not gifted vocalists.
 

Mourad- that is excellent. Please convey to Her Majesty our fervent desire to repair the Political Bands which we so hastily dissolved awhile back. Also, if you could mention that, due to certain peculiar American customs, it will be necessary for candidates for Governor General to be personally “interviewed” by the spouse of the incoming Secretary of State . . . .
 

All this blather about "G-G" brings back memories of the late Maurice Chevalier. Does Leslie Caron have Royal blood lines to qualify her for the proposed position, or would her good looks (as least back then) royally disqualify her?
 

The truth is, no one knows whether the recent shenanigans are constitutional or not, because, at the centre of the British constitutional model lies the institution of the Crown, represented in Canada by the Governor General.

The Governor General supposedly exercises judgment based on certain vapourous "conventions" and traditions, but any departure from these vague rules simply creates a new convention!

Add to this the fact that the Prime Minister may demand a private meeting with the Governor General while the opposition Coalition is excluded, the fact that no transcript is available of what was said at the meeting, and no reasons are required from the Governor General, and you achieve a totally non-transparent decision.

While there may exist policy reasons to prefer the Conservative government (for example, that the Coalition is too fragile to govern "effectively"), it is precisely these policy reasons which are supposedly excluded from the Governor General's modern role in a democracy.

Once those reasons are excluded, we have a Prime Minister who cannot "adjourn" Parliament because that requires consent of the House, yet somehow can cause that same Parliament to be "prorogued", without any vote.

No non-policy justification can exist for this distinction.
 

Jeff: the conventions at issue have been pretty clear since the middle of Queen Victoria's reign.

The two conventions at issue are set out in the Canadian Parliament's Compendium Guide to procedure:-

Confidence Convention

The Prime Minister and the Cabinet are responsible to, or must answer for, their actions to the House of Commons as a body and must enjoy the support and the confidence of a majority of the Members of that Chamber to remain in office. This is commonly referred to as the confidence convention.

If the Government is defeated in the House on a key (“confidence”) question, then the Government is expected to resign or seek the dissolution of Parliament in order for a general election to be held. It is not always clear what constitutes a question of confidence. Motions which clearly state that the House has lost confidence in the Government, motions concerning the Government’s budgetary policy, and motions which the Government clearly identifies as questions of confidence, are usually recognized as such.

Crown and Governor General

In theory, it is the Governor General who chooses the Prime Minister, although convention requires that his or her choice be the leader of the party that can command a majority of votes in the House of Commons.

So, after the brief prorogation it will quickly become apparent whether the PM has or has not got the confidence of the House of Commons.

If he has, matters are at an end for the time being. If not, the PM must tender his resignation. Then the GG must decide whether some other person has a sufficient majority to govern or whether there should be a general election.

At that point. i.e., only when it has become clear that the PM no longer has the confidence of the House and he has tendered his resignation is it open to the GG either to dissolve Parliament for an early election to to send for some other person and invite him to form a government.

At that point she is not bound to follow the PM's advice and at that point she might also wish to take soundings from the other parties as to the viability of an alternative ministry and whether they had preference for an early general election or not.