With the Parti Québécois winning the September 4 general election, language politics has once again been primed in Quebec and across Canada. The PQ’s election platform contained a number of policy initiatives designed to protect the French language. Two were hotly debated during the campaign.

The first was the promise to extend the Charter of the French Language’s requirement that French be the language in the workplace for companies with 50 employees or more to smaller companies. The second was the plan to extend the compulsory education in French requirement that now applies to public elementary and secondary schools to Cegeps. Cegeps offer an intermediate level following Grade 11 for students wanting to go on to university and community college–level courses for students who do not.

These two promises were reported outside of Quebec and, through that reporting, became the subject of media punditry. While there was no consensus, as there never is on such matters, the strongest and most frequently expressed opinion was that these measures were unfair to the anglophone and immigrant communities in Quebec. Francophone voices outside Quebec were not raised, but it can be imagined that these communities saw the proposals as necessary restrictions to protect the French language.

It is noteworthy that in Quebec, the reaction of the anglophone and francophone communities was almost the reverse of that of their “rest-of-Canada” cousins.

While some Anglos in Quebec were upset with the proposals, for the most part Quebecers are used to Bill 101 and expanding work and education language restrictions was not initially seen as either overly onerous or unexpected, particularly by younger Anglos.

In Quebec, the strongest opposition to the PQ language restrictions was voiced by francophone Quebecers and specifically concerned the Cegep requirement. Pundits, academics and community elites repeatedly expressed the view that, having acquired fluency in French but having failed to acquire English as a second language, many francophones (and children of immigrants) avail themselves of English Cegeps to acquire second-language skill in the hope of attending English universities or widening their job prospects.

Of course these attitudes will change – hardening or shifting – as the PQ moves from making promises to enacting legislation. Understandably, language policy is emotional because it is so connected to identity, and when language policy involves education the emotionality increases as parents express fear for their children and their children’s futures.

What I seek to do here is to put language policy in a nonemotional context, placing it in a global context and within a useful typology. Ultimately the policies favoured by citizens of Quebec will reflect their personal experiences and attitudes, but context can advance understanding of alternative positions and thus further public discourse.

Global context

The dominance of certain languages is inextricably tied to the rise and fall of hegemonic powers. As Shelton Gunaratne has noted, “Languages have moved up and down the centre-periphery of the world system depending on the power fortunes of their speech communities.”¹ What languages disappear, expand or dominate is tied to a number of interdependent social factors: conquest, migration, colonization, proselytization, traffic, trade and official language planning.²

In contrast to many aspects of identity, the state is central to language politics. While the state might be able to remain neutral and separate from things like religion, it cannot claim to be impartial when it comes to language. After all, the central medium of political life is speech.³ So simply by using a language in exercising its authority, the state is undertaking a form of official language planning.

More formal official language planning is usually done for one of two reasons. The first is as a protectionist measure to ensure one language’s authority when alternative languages become popular, especially if those languages are not shared by elites.

Of the approximately 60 per cent of the countries of the world that have an official language,⁴ most fit into this category, and while these countries all have multiple language communities within their borders (some indigenous and some immigrant), their political elites have felt it necessary to legislate one official language to protect their community’s linguistic and cultural dominance.

Of the countries that have found it necessary to legislate unilingual protectionism, more have protected English (28 per cent) than French (16 per cent), in spite of English being accepted as the current lingua franca of the world. In the last decade, the United States, 82 per cent of whose population speaks English, saw its Congress debate the issue of giving official language status to English in response to the number of Spanish-speaking Americans passing the 10 per cent mark.

It bears repeating that official language planning is only one of a number of interdependent social factors that determine language dominance and, when used to impose an elite language on an unwilling populace, is not always successful. A striking example of language policy failure is England after the Norman conquest of 1066, which saw French fail as the official language. Instead, a new “Middle English” emerged out of Old English and French as the language of communication for both peasants and elites.⁵ French as the official language of England officially ended when Edward I became the first English-speaking king in 1272.

The other motivation for official language policy is equally protectionist, but in these contexts it is designed to protect the interests of a non-elite language minority population. Among the approximately 27 per cent of the countries that have adopted more than one official language, this is generally the result if not the original intent. In fact some countries have gone to great pains to protect a large number of linguistic minorities. For example, India has Hindi as its national language but has formally adopted 14 other “official languages,” with English granted associate status.⁶

Most countries, however, limit themselves to a few key languages, simultaneously ensuring that the majority of the population can communicate with one another and protecting primary historical and cultural groups’ distinctiveness. Although he did not provide definitive proof, linguist Heinz Kloss argued that the maximum number of languages that can be put on an equal footing is three and that the “day-to-day affairs of a country’s administration and even its legislative proceedings will soon be overtaxed, tangled, and inefficient if transacted in more than three languages.”⁷

So Canada is by no means unique in its adoption of official bilingualism. Twenty per cent of the countries with one or more official languages have legislated two. Where Canada is all but unique is in the two languages it has chosen. Among the bilingual or multilingual countries of the world, 34 per cent have chosen English as one of their official languages and 37 per cent have chosen French, but only one other country, Cameroon, has chosen both.⁸ This means that Canada is uniquely positioned to talk with many nations of the world, a benefit often cited in the context of Canada’s membership in the Commonwealth, the Francophonie and the United Nations⁹ and why Canadians are disproportionately represented within the bureaucracies of these international organizations and their agencies.

It is worth noting that what determines the international order of languages is not the number of primary speakers, but what Florian Coulmas called the “commodity nature of languages.” English and French share the apex of the “world hierarchy” of languages.¹⁰ While it seems likely that English will for some time continue unchallenged as the lingua franca, its future dominance is by no means certain and control of the language is quickly shifting to bilingual second-language speakers.¹¹ As a result, not only is linguistic duality in these specific languages an advantage for Canadians, but bilingualism and multilingualism are becoming the international norm.

Regardless of global utility, protection of minority languages is also advocated as a basic form of respect for a country’s citizens and its neighbours, and an important mechanism to ensure the diversity of cultures on a global basis. As Britain’s The Economist put it, “The all-engulfing advance of English threatens to damage or destroy much local culture,” and “whenever a language dies, a bit of the world’s culture, history and diversity dies with it.”¹²

There are clearly egalitarian and national unity considerations with respect to language policy. However, there is by no means consensus as to what the ideal approach is, or even what should be the desired outcome.

Typology for understanding language policy

Ronald Schmidt offers an interesting model by which to examine the linguistic and cultural goals underlying all language policy.¹³ His typology is based on the interaction of language equality (the extent to which language policies have been intended to equalize status within a state’s jurisdiction) and social integration (the extent to which these policies are intended to integrate members of distinct ethnolinguistic groups into the same public spaces).

Figure 1 applies this typology to the various language policies that have been officially advocated in Canada over the years. The first, domination and exclusion, occurs when language policy is used to restrict participation in civil society and public life. This was the official policy of both France and Britain toward their colonial possessions, where they ensured that the governing language was denied to the natives (except to a few who could act as intermediaries) and often taught with sufficient distinctive local variations so as to ensure segregation.

More recent examples of this colonial practice can be seen in apartheid South Africa, where blacks were educated in their own “mother” languages but not in the languages of commerce and government (English and Afrikaans) and in the pre–Civil War southern United States where a number of states made it a crime to teach slaves how to read and write and where they were forced to speak a form of pidgin English.

Even after the Quebec Act of 1774, which reintroduced the civil code in Quebec and recognized the Roman Catholic religion (changing the oath of office accordingly), there was no accommodation for the French language in governance. The Constitution Act of 1791 was also silent on the language of legislation and the use of French in legislative debate (though it allowed for the oath to be taken in either language). While the legislative assemblies of both Lower and Upper Canada subsequently passed resolutions allowing for translation of legislation, the British government insisted that English continue to be the primary language of the law. In 1822, it attempted to include a clause in the proposed (but not consummated) act of union that would make English the sole language of legislative debate in the colony.¹⁴

Unlike domination and exclusion, assimilation has social integration as its ultimate goal. As W.P.M. Kennedy put it, “This approach is said to promote equality by providing an avenue of advancement for members of subordinate groups, and to foster national unity by purging the society of the very diversity that is the basis for ethnolinguistic conflict.”¹⁵ This policy was famously advocated for Canada by Lord Durham, who found the government of Lower Canada paralyzed because of what he called “racial” difference and suggested that assimilation (along with responsible parliamentary government) would ease the tensions and provide French Canadians with greater opportunities. He noted that English would undoubtedly become the language for the entire North American continent and, therefore, anyone not speaking English would end up politically, economically and culturally disadvantaged.¹⁶ Critics of assimilation argue that it is a destructive policy that targets subordinate groups in society and, according to Schmidt, by its very nature “generates a defensive reaction by subordinate ethnolinguistic groups that undermines national unity rather than promoting it.”¹⁷

The official policy of the government of Quebec on language has been to work toward linguistic confederation. The theory underlying this policy and legislation is the belief that languages are in natural competition and that one will inevitably come to dominate in any given territory.¹⁸ It is therefore argued that linguistic domination of French within the provincial territory of Quebec is necessary to prevent the elimination of French in an English-dominated North America.¹⁹ This is the principle behind the provincial Official Language Act of 1974, which first moved Quebec from being a bilingual province to being an officially French province. This law was later expanded through the Charter of the French Language (popularly and somewhat erroneously referred to Bill 101) by the Quebec National Assembly in 1977.

One final point: While Quebec’s language policy fits within the rubric of linguistic confederation, it shares the characteristics of domination/exclusion on the language equality axis. The key differentiation is the contextual reality – Quebec’s legal situation as a province in a larger federation where the majority population speaks English as their mother tongue, if not their only language. In an independent Quebec, the current rules of Bill 101 would place it in the domination/exclusion category with respect to the unilingual anglophone minority. Though it is also possible, absent constitutional protection for the English language, that the law’s provisions for English education would be removed.

The Charter of the French Language has always allowed for children to be educated in an English public school if a parent attended an English primary school in Canada, and it “grandfathered” all children (and their younger siblings) who were enrolled in an English school when the law came into effect in 1977 (section 73). The Constitution Act of 1982 extended this right to official-language minorities across Canada and expanded it to children of parents who learned one of the official languages as their first language (they didn’t have to be primary schooled in Canada) and to the siblings of children who are enrolled in a primary or secondary school in the minority language.

Since members of the anglophone community are permitted to be educated only in English, while French is the official language of the state and of most workplaces, a unilingual anglophone is excluded from the public square and many jobs. But as English is protected by the constitution and the federal government provides services in English, this policy does not have the negative consequences of its historic counterparts and must be considered in its continental context.

The final typology is pluralism. In Schmidt’s description, “Pluralist policies attempt to elevate the status of subordinate languages and cultures, and to integrate the speakers of those languages into the mainstream public arenas of civil society.”²⁰ This is the principle, first advocated in Canada in the 1960s by the Glassco Commission and then fully developed by the Bilingualism and Biculturalism Commission, which underlies official languages policy at the federal level. It aims to ensure that in the public square, regardless of whether they speak English or French or les deux, citizens can fully participate.

What now in Quebec?

The government of Canada and the government of Quebec will each claim that its particular approach to language policy is responsible for the survival of French in North America. Objectively, both are wrong, and equally objectively, it is impossible to say which policy has been of greatest help to francophones in Quebec.

Each policy, when looked at through the lens of its public policy agenda and put in its global and typological contexts, has strengths and weaknesses. Which you prefer will be informed by your own experiences, concerns and objectives.

The Marois government has expressed its desire to move quickly to implement the linguistic promises contained in its platform. While both of the controversial language proposals fall within the rubric of the linguistic confederation agenda pursued by previous Quebec governments, they have different roots for which the typology outlined above can offer additional insights.

The first proposal to extend the Charter of the French Language’s provisions that make French the language of the workplace to businesses with perhaps as few as 11 employees is rooted in domination/exclusion.²¹ The goal, however, is not to oppress the anglophone community, which is clearly able to survive and thrive in English in pockets of Quebec, especially Montreal. It is to create an incentive for this community to learn French, and to ensure that francophones can fully participate and are not denied employment within Quebec’s territorial borders.

It is noteworthy that during the campaign Marois mused, and then backtracked, about the need for a French-language proficiency test for elected public office holders. This policy would have shared even more similarities with the historic policies used for domination/exclusion. From a political science perspective this may suggest language policy could be better analyzed using a cartesian coordinate system (XY axis) than a simple typology.

The PQ’s desire to extend compulsory French education to the Cegep level for non-anglophones is obviously aimed at assimilation. Primary and, to a lesser extent, secondary education provides the children of immigrants with the linguistic tools to fully participate in the public square, to integrate into Quebec society and to find employment in a province where the majority speak French and where there is an official language in the workplace.

The new government’s desire is to go further and ensure that immigrants live as Québécois in the home. This is about social/cultural cohesion and about ensuring the continuation of the province’s culture and distinctiveness through the progeny of increasingly interracial marriages. With birth rates dramatically lower than when most of the population practised the Roman Catholic faith, immigration has become the tool by which Quebec replenishes its society, not just its workforce, in proportion to the Canadian population (and thus maintains its relative political influence).

It bears keeping in mind that assimilationist language policies are often part of countries’ immigration policies which, even in officially “multicultural” Canada, are aimed at integrating immigrants into the dominant milieu and giving them the tools necessary to survive and thrive in their new country.

Because these policies have these different roots, they will be opposed for different reasons by the anglophone and immigrant communities they are intended to regulate. Anglophones will feel they are being excluded and immigrants will feel they are being assimilated. The cohesive goal of these separate policy threads, though, is to ensure the domination of French in the geographical territory of Quebec, believed to be necessary because of the natural competition of languages.

Continue reading “Language Policy Without the Emotion” →

Are the governor general’s reserve powers a safeguard of democracy?

Two weeks into the first session of Parliament following last October’s federal election, with the minority Conservative government facing imminent defeat over an ill-advised financial statement and a possible Liberal-NDP coalition government waiting in the wings, the media suddenly began to speculate about whether Prime Minister Stephen Harper would ask Governor General Michaëlle Jean to “prorogue” Parliament. Given that prorogue is not a word in common use in Canada, making it unlikely that this idea originated with the popular press, and that the ship of state is a vessel that leaks from the top, it seems apparent that the source of the idea was the Prime Minister’s Office. However, for an explanation of what “prorogation” was and whether it should be granted, the media turned to academics.

Political scientists and law professors could agree that “prorogation” means the ending of a session of Parliament and the termination of all business, but not the end of the Parliament itself or the calling of a new election (which would be “dissolution”). After prorogation, within a period of one year, a new session of Parliament with the same MPs is summoned. They also told Canadians that the decision to prorogue, or to dissolve, Parliament was within the Governor General’s “reserve powers” or “personal prerogatives,” meaning that it was her call. Agreement on what she should do was more elusive. After all, a request for “prorogation” under threat of defeat on a confidence question had never occurred before in Canada

In response to CTV host Dan Matheson’s question, “How come we have a bunch of constitution experts telling us she can do that, and we have another handful saying she can’t do that?”,¹ I replied that the lack of precedent forced academics to draw on their respective areas of specialization. People specializing in administrative law, constitutional law, voting behaviour, rational choice, game theory or comparative politics have different expertise, which may lead to different prognostications.

In the event, on December 4, Jean granted Harper’s request for prorogation. Pursuant to convention, she made no public pronouncement and issued no written explanation of her reasons. I contend that, as things stand, the “conventions” concerning reserve powers are not worth the paper they are not written on. For the conventions to operate effectively, the Governor General should issue written decisions, and there should be an acknowledgement that it is within the purview of Parliament to set conditions for their exercise in the future.

Lord Elgin’s vision

As the parliamentary system evolved in England, the Crown lost much of its discretionary power. Parliament extended its authority into most jurisdictions, and ministers of the Crown assumed responsibility for the remaining “royal prerogatives.” However, a few items – prorogation, dissolution, the summoning of Parliament and the choice of prime minister – were held in reserve. These are the monarch’s “personal prerogatives” or “reserve powers.”

Though the Crown has some personal discretion in their exercise, there is a genuine belief that this discretion will be used to safeguard the constitution and the public’s interest. Yet as recently as 1834, King William IV dismissed a prime minister because he personally objected to the PM’s proposed policies. Queen Victoria let her personal friendship with Lord Melbourne keep him in office for two years after he had lost the confidence of Parliament. And in 1963, Queen Elizabeth II used her discretion to choose Lord Home as Prime Minister and Tory leader, a choice the public promptly rejected in a general election.

Party politics today has removed much of the Queen’s discretion over the choice of prime minister and has led to the emergence of cabinet government and collective accountability to the Commons. At the same time, it has reduced the obligation of the Crown, the PM and the ministry to negotiate and compromise with individual members of Parliament to obtain support for government legislation, policies and programs – a principle which originally defined responsible parliamentary government.

Concern over how party politics might affect the model of responsible parliamentary government was raised by the Governor General of the United Province of Canada shortly before it was granted in 1848. Lord Elgin, in a letter to the British Secretary of State for the Colonies, Earl Grey, noted that party interests had overweening importance for Canadians, which he thought was due to the health of the local economy and relatively high standard of living that led to “the selfishness of public men and their indifference to the higher aims of statesmanship.”² Nevertheless, he was confident that under his direction and that of his successors, these politicians would come to advance the interests of Canada before their own. Hence, he recommended responsible government: that decision-making authority be entrusted to those who enjoyed the support of the majority of the legislature, even if they behaved recklessly at the outset. He also reported to Britain that he had informed the pro-British Tory politicians that he was committed to “working cordially with their opponents if they are forced upon me.”

This is what transpired soon afterwards, in events that have some ironic similarities to the situation in 2008. Following the 1848 legislative election, Louis-Hippolyte LaFontaine was able to cobble together the support of the majority of MPs in the legislature in support of a proposed economic program to unify the country after the rebellions and stimulate the economy through large public works projects. Tory politicians, upset by the prospect of losing positions and influence over the Governor and outraged that LaFontaine’s plan would benefit separatists and “traitors,” encouraged their supporters to take to the streets and march on the Governor General’s residence.³ The Tories demanded that Lord Elgin use his royal prerogative to sustain them in power, over the wishes of the legislature. Elgin did not acquiesce.

Unbound by precedent and thus able to operate on first principles, Lord Elgin implemented an idealized conception of responsible government, a conception advanced in the writings of local politicians such as LaFontaine and Robert Baldwin in Canada and Joseph Howe in Nova Scotia. Since Elgin was a British aristocrat, paternalism came naturally to him and he was comfortable with the role of governor as independent arbiter. He would appoint to government office those who had the support of the legislature after an election. He would advise them in their work, and at the end of the day he would let them make the final decision, keeping in reserve only those royal prerogatives needed to ensure that the government remained accountable to the legislature and members of the legislature were periodically elected.

While the period leading to Confederation was not without abuses, and certainly no model of democracy, it was a unique model of responsible government distinct from that emerging in England. This occurred in part because the low cost of land and extensive land grants to settlers in Canada created a broader electoral franchise than in the motherland. In addition, Britain was constrained by more than a millennium of historical precedent and practices – in short, by convention.

Still, the Constitution Act, 1867, gave Canada “a Constitution similar in Principle to that of the United Kingdom.” Thus, the Confederation exercise extended the Westminster model of responsible parliamentary government under a constitutional monarchy that existed in the U.K. on July 1, 1867, to the new Dominion, and applied to Canada the British precedents as they had developed. It also created a unique disconnect between common law and convention on one side and a written constitution on the other. The constitution specified that there would be an executive branch headed by the Queen (s. 9) and advised by a Privy Council (s. 11). In the Queen’s stead, there would be a Governor General with all of the Crown’s powers, authorities and functions as existed at the time of Confederation to be exercised on the advice of the Cabinet or a Minister, or alone (s. 12). The constitution also set out the tripartite design for the legislative branch, with “one Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons” (s. 17). Federalism was a complicating dimension, but as far as royal prerogative and the permanent tension between the executive and legislative branches, with the Governor General as both actor and fulcrum, the U.K. model was fully imported.

As Canada was a colony in 1867, provisions that were routinely inserted into governing legislation for colonies found their way into Canada’s founding documents. The Constitution Act, 1867, allowed for legislation to be held in reserve for approval (s. 55) or disallowed after assent (s. 56), since the governor general was equally the representative of the head of state and of the British government. The British never asked the governor general to interfere with legislation at the federal level, though provincial lieutenant governors have used these powers at the behest of the federal government – a separate though related issue concerning the undefined use, and thus potential for misuse, of constitutional conventions.

New constitutional conventions could have developed independently in Canada. But for most of Canada’s 142-year history, the governor general has never been asked to make a difficult decision. The cabinet, and more recently prime ministers, would recommend that Parliament be dissolved when it became clearly dysfunctional and that it be prorogued when the business set out in the Speech from the Throne had been completed. Lack of local innovation reinforced the British precedents, such as allowing a PM to continue in office after an election, regardless of the outcome, until defeated in the Commons on a vote of confidence – a practice not necessarily in conformity with Elgin’s pre-Confederation Canadian vision.

The Fathers of Confederation also adopted the British electoral system, traditionally known to deliver majorities at the expense of fairness to minor parties, for the Canadian House of Commons. A clear majority won in an election makes the choice of new prime minister evident to the Crown, politicians and public alike. Confronted by such a majority won by the opposition, the leader of the defeated party has the good sense to resign gracefully in what is now a well publicized speech on election night. Problems arise only when the election outcome is not clear or a first minister won’t gracefully bow out. In those instances, the monarch or governor (general or lieutenant) is turned to with the popular expectation that democratic principles will govern the impartial application of precedent.

The King Byng Thing

Prior to 2008, the one and only time in Canada that a PM has refused to bow out gracefully was in 1926. Known at the time as the “King Byng Thing,” this instance has become a much cited point of constitutional debate because the Governor General chose to use his own discretion and ignore the PM’s recommendation.

Liberal Prime Minister Mackenzie King had lost seats in the 1925 election, down from 118 to 100 (King himself and eight of his ministers were among those who lost their seats), while the Conservatives went up from only 49 to 115, giving them the most seats, though not a majority, in the 245-seat House of Commons. Governor General Lord Byng met with the PM and recommended that he respect the election results and resign. This was in keeping with the Governor General’s undisputed rights to (a) be consulted, (b) encourage and (c) warn.⁴ Mackenzie King decided to meet the new Parliament anyway, and with the support of the minor parties and independent MPs was able to survive through a number of votes. But a scandal in the customs department was eroding support for the King government and, facing defeat on a motion of censure less than eight months after the election, King asked the Governor General to dissolve Parliament and call another election. Lord Byng refused, holding his ground when the cabinet issued a minute “advising” the Governor General to dissolve Parliament. Prime Minister King even argued that Byng should not make such an important decision on his own but rather get instructions from the British government.

Lord Byng, confident that dissolution was a personal prerogative and bolstered by his British aristocratic sense of paternalism, took it upon himself to approach Opposition Leader Arthur Meighen to see if he was prepared to form a government. While Meighen had the most seats, the practice at the time was for new ministers to resign their seats and stand in a byelection to ensure that constituents were prepared to accept them being on the government’s payroll while representing the local community’s interests (this rule has since been eliminated). Meighen attempted the clever sleight of hand of claiming that the cabinet was only interim, but this undermined his credibility, and he failed by one vote to get the confidence of the Commons. This time the Governor General agreed when Prime Minister Meighen recommended that Parliament be dissolved and an election called.

Mackenzie King ran his campaign not on the principle that the governor should always follow the PM’s instructions, but that the Canadian governor general should not be a British government representative (which was ironic since King had earlier requested that Byng obtain instructions from London). Reinstalled as Prime Minister, King later took this mandate to the Imperial Conference and was able to lay the groundwork for the 1931 Statute of Westminster, which effectively ended British control over the dominions and their governors. Lord Byng was rewarded for his service to the Crown with an elevation within the peerage.

Not surprisingly, scholars are divided on the significance of these events in terms of the precedent they set. Eugene Forsey, who often idealized the role of the Crown as the protector of the constitution and the public interest, argues that this precedent makes it clear that if “a government asks for dissolution whilst a motion of censure is under debate it is clearly the Crown’s duty to refuse.”⁵ Berriedale Keith, on the other hand, thought Lord Byng’s refusal of the request for dissolution improper,⁶ and Sir Alan Lacelles, personal secretary to the King, subsequently expressed the opinion that the Crown should never refuse a request for dissolution unless there was clearly a viable alternative government (in 2008, the Liberal-NDP coalition clearly satisfied this stipulation by entering into a written agreement with the Bloc Québécois and forwarding it to the Governor General).

In Britain, where the single-member plurality electoral system still regularly returns majorities, there have been a few indecisive elections where PMs have tried to stay in office. Invariably, after they met the Commons and found they did not have sufficient support (e.g. Lord Salisbury in 1886 and 1892 and Stanley Baldwin in 1924), they resigned, sparing the monarch the awkward position of having to go against the advice of the PM or dismiss a ministry. In Australia, the governor general has refused the advice of a prime minister to dissolve Parliament after a defeat in the lower house on three occasions: Chris Watson in 1904, George Reid in 1905 and Andrew Fisher in 1909, not to mention the more controversial example of 1975 when Gough Whitlam’s government was dismissed after defeat in the Senate and not the lower house.

There are four reasons for the differences between Britain and its former colonies in the use of the head of state’s personal prerogatives. The first, already noted, is that the conceptualization of responsible government in the former colonies is more tied to first principles and less cluttered with historical baggage. Citizens in newfound democratic countries have an expectation of impartial application of constitutional principles, rather than old, distant practices, and so are genuinely surprised when conventions trigger unpredictable outcomes.

The second reason is that the Queen has a different relationship with the British than a governor general does with a Commonwealth country. British politicians seem reluctant to put their Queen in the awkward position of having to use personal prerogatives and are always respectful of her office. In former colonies there is no hesitation in politicizing the governor’s office, and no psychological bond between this office and the people to dissuade them.

Third, in Britain the Queen takes her role of encouraging, advising and warning seriously and, given her popularity with the people relative to most politicians, her advice is taken seriously. Yet this function for governors has fallen by the wayside in commonwealth countries. Loyalty to the monarchy is, not surprisingly, lower in former colonies than in the original Kingdom, though ironically, the decision to use local figures rather than members of the British aristocracy as governors seems to have resulted in the office being less involved in local governance. Homegrown governors (since 1952 the governor general has been a Canadian), who are sometimes public celebrities with no experience in government, are not consulted regularly as they have little to offer by way of experience and knowledge.

Finally, and most importantly, the electoral system in a country like Canada operates differently than in Britain. In Canada, regional divisions interact with single-member plurality voting to advantage regional political parties like Reform and the Bloc Québécois. Minority Parliaments with multiple political parties represented in the Commons have become the norm, and are likely to continue into the future.

Making conventions explicit

Political institutions reflect shared values, so there is an implicit element of consensus over the principles behind the personal prerogatives After all, if their continued existence is rooted in the pre-Confederation model espoused by Elgin, Lafontaine, Baldwin and Howe and the idealized model of Forsey, then it will be expected that they will be exercised in a certain way. When they are not, to paraphrase Lacelles, support for the political system will be compromised. A proper understanding of conventions is essential to prevent the principles of responsible parliamentary government from being undermined. Such an understanding is especially important as all the evidence suggests that Canadian governors general will be asked to arbitrate more frequently in the future, not less.

K.C. Wheare’s classic definition of a convention is “a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution.” According to Ivor Jennings, the existence of such a convention can be ascertained by asking three questions: Are there precedents? Is there a reason for these precedents? Do the constitutional actors believe that they are bound by these precedents which combined constitute a rule? The Supreme Court of Canada adopted this approach in the patriation decision.⁷

Identifying precedents for reserve powers is particularly challenging, and the historical record has a natural ambiguity. However, the system could benefit greatly by as simple a change as having the governor general issue a written decision when asked to exercise these reserve powers. The courts and speakers of the House of Commons routinely issue written decisions. Had Michaëlle Jean taken this route in late 2008, while the outcome would likely have been the same, the drama surrounding the event would certainly have been lessened. A written decision would identify the specific precedent being set, thereby satisfying Jennings’s first test of a convention. It would also allow political actors and other interested parties (like the citizens of Canada!) to better understand the rules of the game.

With respect to Jennings’s second test, a written decision would oblige the governor to explain the reasons behind the precedent being followed or set. Many of the practices and thus precedents for the exercise of prerogative were established at a time of political conflict between branches of government. While many were recast in the 20th century as democratic mechanisms for accountability, the enunciation of basic principles would ensure that the social contract that Canadians believe they are party to is in fact driven by their shared set of values, even as these values continue to evolve.

In the most recent case, there could be any number of reasons for the Governor General’s prorogation decision. The Governor General might have been trying to follow an “apolitical decision rule” like the ones used by speakers of the Commons so as to leave the matter before Parliament with the greatest number of options still in play; she might have chosen to follow Stephen Harper’s advice because he had received a recent electoral mandate greater than that of any other party leader; she might have felt bound to follow the advice of the current Prime Minister in the exercise of any and all personal prerogatives; or she might have felt that the principle of prorogation was to force Parliament to take a pause and reflect. Each of these would have led to the same final decision and each has a democratic principle behind it, but the principles are markedly different from case to case and point to different conventions.

The issuance of a written decision forces the governor to examine whether the reasons are appropriate for modern Canada. And if Canadians, and their elected representatives, feel that the reasons offered are no longer compatible with their understanding of how democracy is supposed to work, then Parliament – even a divided Parliament – has the capacity to respond. This is Jennings’s third test: that political actors agree to be bound by a rule. If they do not feel so bound, then Parliament can legislate to alter the convention – but to do so it must know the reasons for the decision.

Knowledge of the underlying democratic principles that are driving the constitutional convention could bolster acceptance of that convention. Alternatively, it could provide an opportunity for Parliament and the Canadian people to reexamine the convention on the basis of first principles instead of blindly conforming to historical practices. That is, after all, what made the Canadian experiment with responsible government in 1848 so admirable.

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