One of the things that I think has come up in these hearings is the scope of the Governor General to take advice. I think an important distinction here is the ability to take advice and the ability to gather information. I think sometimes those concepts have been blended here, and unfortunately so.
I think it's clear in our constitutional system that the Governor General is to seek advice from the Prime Minister. But I think she's fully open to availing herself of all kinds of information that will help her make her decision as to whether she should accept that advice or not. That can include, I think, what we call in the legal world taking judicial notice of notorious facts: Is there a government-in-waiting ready to take over? What do scholars and pundits and the public think about what is happening?
Our conventions have a kind of democratic legitimacy to them through this information gathering that the Governor General is fully able to engage in. I wanted to make that point.
If I were on the phone with the Governor General on the two prorogations, and I make this argument in the article I've penned, I would have thought that she made the right choice. And I think she made it artfully, in that I don't think it was a rubber-stamped decision. There were considerations to weigh, and there was a calculus to weigh. If the factors had been slightly different, her decision might have been different.
Taking in this information gathering, as I've suggested, and a number of considerations, she made artful choices. If you change some of those considerations, then we might see different results.
Peter Russell presented the most compelling case. What if a Prime Minister is about to lose a vote of non-confidence, and he or she comes to the Governor General and says, “Let's prorogue. I don't know when we're coming back. Maybe it's 12 months from now. But I'm going to govern for the next 12 months. A day before, I was about to lose the confidence of the House of Commons. I'm going to appoint judges to the Supreme Court, and I'm going to continue to hold the reins of power.” Surely a Governor General is able to say that this is inappropriate.