Academic

The Prime Minister invoked constitutional tradition when he refused to t reveal the content of the discussion, which we think lasted 2 ?? hours. In a modern, constitutional democracy, it is simply not acceptable for crucial public decisions which affect the very legitimacy of the exercise of public authority  to take effect with  no set procedure, no reasons provided and no jutification  offered. In was ironic indeed that the Prime Minister sought to undo what he described as a ???back-room??? deal to steal power in a closed door meeting with the Governor General. 

Canada???s Parliamentary traditions have evolved over time to adapt to the fundamental constitutional principles of modern governance. For example, the British North America. Act (now called the Constitutional Act, 1867) authorized  the Queen and her representatives to invalidate legislation passed by the federal Parliament and also authorized her representative,  the Gov. Gen to invalidate legislation passed by the provincial legislatures. Eventually, these powers fell into disuse because they were inconsistent with the principles of self government, democratic legitimacy and federal arrangements.

The time has arrived for the Governor General???s  role to adapt to Canada???s modern constitutional principles. These principles dictate that public authorities must respect  the rule of law and exercise their discretion with the appropriate degree of accountability. There is no room for constitutional ???black boxes??? in 21^st Century Canada. The Governor-General???s exercise of her reserve powers to prorogue Parliament must be based on good-faith arguments consistent with Canada???s constitutional principles, To subject the PM???s advice to meaningful scrutiny, it is imperative that the Governor General have access to independent expertise (that is, her own counsel). This advice should come from an individual or number of individual experts designated before the particular crisis arises.

The Gov. Gen. serves as guardian of the integrity of Canada???s parliamentary institutions. To perform this role, she must have the capacity and legitimacy to refuse to follow the advice of the Prime Minister when that advice is inconsistent with the applicable constitutional principles. In addition, the Gov. Gen???s decision  must be as transparent as possible. Canadians must know, for example, if she attached any conditions to her decision, and if not, why not?

There will be considerable discussion and speculation as to how the Gov. Gen. might respond if the Prime Minister returns to ask for a further proroguation or for a dissolution of Parliament. In this climate of uncertainty, the Prime Minister may well have received a warning from the Gov. Gen. or other insight into her ultimate disposition of such a request should it come to pass. Given that the opposition parties have expressed a lack of confidence in the Prime Minister (albeit not yet in a confidence motion), is this additional advantage justified or appropriate?

It may be that one day we will look back on the Gov. Gen???s decision to prorogue Parliament as a decision that  avoided an unnecessary constitutional showdown. Or, we might come to  regret the creation of a precedent that further concentrated power in the hands of the Prime Minister  at the expense of  parliamentary governance. Whatever history has to say about the decision, it is clear that it cannot be said to be consistent with Canada???s constitutional principles  ??? until and unless we can be confident in the process as well as the rationale and substance of the decision itself.  

Lorne Sossin & Lorraine Weinrib