Unless his political fortunes take a sudden turn, it may be years before our current prime minister moves out of 24 Sussex Drive. Despite autumn election rumours, the result is far more likely to be a Conservative rump minority than a Liberal government of any sort. But in the past four years, Stephen Harper has already sown the seeds of his constitutional legacy and the harvest is set to be poor at best. Harper has done more to change Canada’s constitutional order than any of his recent predecessors and he has done so with extraordinary cunning and skill.
Worries that Canada’s government is gradually becoming parliamentary and more “prime ministerial” or even presidential, are not new. This accusation has been leveled against Conservatives and Liberals alike since William Lyon Mackenzie King was prime minister, and especially vociferously since Pierre Trudeau held Canada’s top job. No prime minister is more deserving of this accusation than Harper. The details of Harper’s first prorogation of parliament in late 2008 are well known: facing a coalition of the three opposition parties who were committed to defeating his government, Harper simply asked the Governor General to end the session.
Harper’s request itself was not problematic, since prorogation is usually an uncontroversial procedure used to take a break once the government has completed the bulk of its legislative business for the session. However, Harper used it to avoid a vote of confidence which he would surely have lost. In doing so, he made it clear that he felt that his right to remain in office was not tied to the will of parliament. If so, then what could it be tied to but his own will? His second prorogation a year later was likewise objectionable, though less so because it enjoyed greater support of precedent.
What was concerning about Harper’s second prorogation, however, was that he did so to shut down the hearings of a special committee on the handling of detainees by Canadian soldiers in Afghanistan. When Parliament returned, the prime minister argued that the government could not release the classified documents requested by a Parliamentary committee, in clear violation of the parliamentary privilege to compel any and all papers and testimony it requests. The opposition asked the speaker of the House of Commons to rule on the question. His decision struck a difficult compromise and is currently being implemented.
These three events demonstrate the prime minister’s will to alter the relationship between his office and the most important institutions of our constitutional order, the Governor General and parliament, to suit his political purposes. The prime minister has given every indication that he will continue to do so. There is an important sign otherwise that we cannot afford to ignore. Amid the speculation that the prime minister might appoint a partisan to replace Michaëlle Jean as Governor General, the government implemented a new selection process to guarantee that the choice would be non-partisan.
The process centered around a secret committee of eminent Canadians which quietly consulted far and wide to find a non-partisan candidate. They settled on David Lloyd Johnston, then president of the University of Waterloo and former University of Toronto law professor. The choice was widely lauded and rightly so: Johnston is an excellent nominee. What deserves more praise though is the way in which Johnston was chosen. Non-partisanship was placed above even bilingualism as the key characteristic of the nominee. Expertise in constitutional law was also a criteria, which shows that the government expects that the Governor General’s judgment may come into question if the prime minister makes another controversial request for the exercise of a reserve power.
Unlike past governors general who seemed to be chosen mostly on the basis of loyalty, the process organized by the prime minister’s office which eventually selected Johnston ensured that the nominee would be beyond reproach. It is doubtless that this was the result of political pressures on the prime minister, but it nevertheless presents an important opportunity to solidify the constitutional role of the Governor General. Doing so would transform Stephen Harper’s constitutional legacy for the better and would protect the Governor General’s crucial role in the Canadian system of government. He should begin by entrenching the selection process and using the reform as an opportunity to launch a broader conversation on the role of the Governor General. Instead of slowly changing the balance of power, he might create an opportunity for Canadians themselves to shape it.
