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Simple answers to Complex Questions and Complex Answers to Simple Questions. In real life, I'm a Greater-Toronto (Canada) Realtor with RE/MAX Hallmark Realty Ltd, Brokerage. I first joined RE/MAX in 1983 and was first Registered to Trade in Real Estate in Ontario in 1974. Formerly known as "Two-Finger Ramblings of a Forensic Acuitant turned Community Synthesizer"

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Wednesday, January 27, 2010

Elect a Governor General with Backbone

Dear M. Hebert,

Your column, H├ębert: Proroguing pattern now is set is one of few to correctly bundle the 3 self-serving termination requests of Mr Harper.

But I must respectfully disagree with your "historic" premise.

In agreeing with each of his requests, Jean was guided by a constitutional convention established well before her time. It stipulates that the governor general dissolve or prorogue Parliament on the advice of the prime minister.

And the conclusion that you flow from that statement.

A pattern had now been set that the governor general is at the beck and call of the prime minister of the day, regardless of whether his advice reflects the will of Parliament as expressed in laws or through the voices of a majority of its elected members.

Indeed, the PM does the proposing/recommending, but the GG grants the Royal Assent.

All the prerogative powers of the GG do not disappear by desuetude - these are Royal powers not constitutional conventions nor statute laws - permanent powers, emergency powers .... that, by definition, should be used rarely.

While I'm delighted that the second (?annual?) prorogations has prompted commentators to focus their attention/derision on the first prorogation -even though many Canadians did not favour the "coalition of Lib Ndp & BQ" nor wish another election at the time (Dec 08/Jan09), but nesciently, the attacks seem exclusively focused on Mr Harper ... when all he did was offer "bad" advice. The GG granted them (albeit without Her chief Advisor, the Clerk of the Privy Council { he sat with the PM} and Her constitution s.11 team of independent Advisors, the Privy Council)

This concept of "bad advice" is not new to the Westminster system and also anticipated by conventions there and (until WW2) here as well.

Notwithstanding:
a)Wm L Mackenzie Kings mischievous deeds and words 1) during the election after the King-Byng Affair, 2) in combining, by Order in council (#1940-1121) the Office of Clerk of the Privy Council with the Office of his now-called Secretary of the Cabinet & 3) successfully lobbying for a Canadian (recommended by the PM) to be GG;
and
b) virtually everyone's lack of political "memory" of the protocols and conventions extant before Mr King exacted his revenge on Lord Byng's refusal;
Constitutionally, the Governor General of Canada HAS MORE POWER as an individual that does the Monarch in England. (More separately, on what the UK's enabling Canada Act, 1982 changed/didn't change... if you're interested).

When Wm & Mary were placed on the throne, the Parliamentarians stipulated that the Monarch would always accept Her/His minister's recommendations, but that if the "decision" made by the Monarch was found later to be poor/wrong/faulty/needing reversal, that the (First) Minister proffering that "bad advice" would resign -- this is the actual meaning of Ministerial Responsibility.

When Canada was formed the General Government was placed atop the existing system in the prior colonies -all had Governors who (some more/some less) actually ran the colony as Executive Officers (remember the Chateau Clique & Family Compact?) with input from the Legislative Assembly, but with the real power resting in the appointed Legislative Council and Executive Council.

All acts of the colonial Governors were subject to final approval (or Disallowance) by the Monarch-in-Council in Great Britain ie the Cabinet/Privy Council, but failing some really boneheaded decisions over here that had to be overturned, the colonial Governor had the final say .... in the name of the Crown.

When the office of Governor General was created all the freedom to decide as an individual held by these Governors was continued under s12 (vis a vis s 13) (provincially ss65-66) but the General Gov't's assembly's now more respected position was recognized by the provisions specifying that all expenditures and or tax measures were to be initiated in the Lower House s.53 and that not to be passed if not recommended by the GG in that Session's Speech from the Throne s.54.

Finally, the GG's Executive powers to grant Royal Assent, Withhold Assent, Reservation a bill for Signification of the Monarch-in-Council were stipulated for the General Government with similar in-Canada proviso for Provincial Bills ss.55-57 & s.90


SO .... after all that background (and opinion)... In my view, the real culprit in creating this prorogue/dissolution/termination/new elections kerfuffle (shall we do it EVERY year) is the Governor General ... for accepting, on behalf of the Crown (some would non-constitutionally say on behalf of the citizens) Mr Harper's self-serving "bad advice" .... 3 times in a short order.

The third time (contrary to protocol, convention and ordinary politeness) in response to a phoned-in request.

I hope she garnered a term extension as quid pro quo.

Contrary to Mr Layton's ideas the solution is need not be constitutional - amendments are very difficult and invite opening everybody's pet peeve/project into the discussion

IMHO,what's required is a matter of changing how we Canadians select our recommendation to the Monarch for appointment as GG.

I believe we must elect the Governor General. (More details on my ideas for that process if you wish but I'm already running super too-long.

Elected, the GG will have the popular mandate to:
(i) exercise the as-written Executive Powers of the BNA (re-stated and expanded to Commander in Chief in the 1947 Letters Patent),
(ii) reverse the combined PCO/PMO Order in Council that usurped the Privy Council from the GG's control
and
(iii) "just say no" to a Majority and/or Minority PM's self-serving request or recommendation (I think it's safe to predict that with 5 regional and/or ideological political parties at elections we'll have many minorities with weak/divided oppositions in the yrs to come)


Yours truly,
rce

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