Procedure and House Affairs Committee on June 10th, 2010

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

That's very helpful. Thank you very much.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Reid.

Monsieur Guimond, Madam Gagnon, no?

Mr. Christopherson, another shot?

[David Christopherson, NDP, Hamilton Centre, ON]

Yes, please.

I was interested in the issue of asking the Governor General for reasons. Could you expand on why you think that's a bad idea?

[Prof. Patrick Monahan]

I think it's a bad idea because it would be an attempt to set the reasons as to why the Governor General exercised her power at that time. The Governor General is not trained in matters of state. She does take advice; however, it seems to me that any set of reasons would necessarily have to be drafted primarily by others and not by her personally.

I think the exercise of discretion is her personal discretion. She does take it upon advice, but I think it is exercised by her. I think the requirement that the Governor General then write or prepare her personal reasons may cause difficulties, and I do not think it is necessary. Because the range of considerations is complex, they are difficult and may evolve as subsequent circumstances unfold in later terms.

Again, I believe there's been some discussion about this requirement. On balance, I don't favour a requirement of reasons.

[David Christopherson, NDP, Hamilton Centre, ON]

I want to pursue this a little bit. I heard your first rationale, but I have to tell you, the fact that she's not a lawyer and would write her own brief.... I guarantee you that when I was a cabinet minister, I didn't write my own briefs when they were legal and technical in nature, and we don't expect a minister of health to be able to write a how-to book on how to do brain surgery.

You said it would cause difficulty.... I'm just trying to get some specifics, sir. I'm not hearing good, specific reasons why that causes so much grief, remembering that we're into an era in which less and less often are ordinary people prepared to accept the mystical, deferential powers of anybody, even of the Queen's representative. I'm having some trouble understanding why we wouldn't at the very least ask someone who has incredible power to give us at least a reason why he or she has exercised those powers. I don't understand why that's such a big problem, sir.

Maybe you can help me with that.

[Prof. Patrick Monahan]

First of all, I don't think it's a big problem; it's a matter of judgment. On balance, is it better or not that she write reasons?

If she were to write reasons, those would have to be drafted by others. Those reasons would, however, then become controlling, because everyone would look at those reasons and would say, these are the reasons and this is really the decision; this is the rationale. I don't see why unappointed people, let alone unelected.... They're not even appointed; they're simply advisers. Who are those advisers? What gave them the right to draft those reasons? It's unlike the situation in the Supreme Court of Canada, where they have law clerks and advisers to support them but ultimately the judges themselves decide, and unlike the case of a minister: while speeches and other things are written for you, you could write your own.

[David Christopherson, NDP, Hamilton Centre, ON]

I'm talking about a cabinet submission. There are lots of formal documents that ministers have to have, and they don't write them. They're prepared by legal departments and run past the deputy. They look at it, and as long as it's okay politically, they sign it.

[Prof. Patrick Monahan]

Right, but those don't have controlling effect; those are merely submissions or briefs. Ultimately, it is the legislation that is produced—the result of that submission—that is controlling and binding. It is what the statute says, as enacted by Parliament or by the legislature.

I think it's a serious proposal; it requires serious consideration. I know many people support it. On balance, I don't support it.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you.

Thank you, Chair.

[The Chair, Conservative, Joe Preston]

I have Mr. Albrecht and then Mr. Lukiwski.

Mr. Albrecht is first.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

Thank you, Professor, for being here.

You commented on the proposed coalition in 2008, and notwithstanding the fact that you made a point of the negatives of it—that it was done in haste, that there was no previous discussion during the campaign, the uncertainty of Mr. Dion's tenure, and that it was unwieldy—you seemed to attach a fair bit of significance to the fact that it was in writing. I'm wondering, in terms of the political realities, how much weight we should put on the fact that it was in writing.

[Prof. Patrick Monahan]

I think it was very important that it was in writing. In my view, if there had not been a written agreement, then it was not really a matter that the Governor General ought to have taken very seriously. It is only because it was in writing that I think it was a matter of significance and in fact acquired a level of significance that made it very important—and also that it was for a timeframe greater than 12 months.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

It's the timeframe that I'd like to follow up on. How binding would a written agreement be, six months into it or two months into it, if one of the players suddenly decided not to acknowledge it?

[Prof. Patrick Monahan]

That's the difficult judgment that has to be made. But given the fact that it was in writing, that it was for a period of 18 months, it seems to me plausible to conclude that the government in fact would have survived for 18 months. We don't know that. Mr. Dion may well have been the Prime Minister for 18 months or longer under that scenario; we can't predict that. But I think it was a very significant fact that there was an agreement in writing and that it was for a period of longer than 12 months.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

In the other point you made, right about that point, you speculated or indicated that there were media reports that centred around three topics that the Governor General and the Prime Minister....

How do we know this, going back to Mr. Christopherson's point about reporting the reasons?

[Prof. Patrick Monahan]

We don't know that. I simply offered my opinion as to what would have been appropriate to discuss or not.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I just wanted to highlight that. There's really no—

[Prof. Patrick Monahan]

I do not know what was discussed at that meeting.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Then finally, I think your point that the Prime Minister promised a confidence vote in January when the House resumed was a fairly significant factor to consider, in terms of whether or not the Governor General would follow the Prime Minister's advice.

[Prof. Patrick Monahan]

Yes, the fact that the request was bounded in that way and that there was a commitment for a confidence vote was essential. Had the Prime Minister not made that commitment, I do not think the request should have been granted. Moreover, if, let us suppose, on January 25 the Prime Minister had appeared at Rideau Hall and said that he'd like to extend that prorogation, that he'd like the order to be amended and be granted a longer period of time, the Prime Minister's request in that circumstance would have been illegitimate, inappropriate, and the Governor General should clearly have rejected it and required the House to sit on January 26 as agreed.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

Is there some time for Mr. Lukiwski?

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Very quickly, Professor--I know your time is very limited--we've had discussion from previous witnesses about the ability, the right, the authority of the Speaker of the House to give advice to the Governor General as to whether or not the House has confidence. I'd like to get your opinion on that. Even more particularly, we've talked about whether, if the Speaker of the House has that right, the Speaker of the Senate perhaps also has the right to give advice.

If that is the case, what would happen, in your opinion, if the advice from the two Speakers were conflicting? What could be done then?

[Prof. Patrick Monahan]

I hadn't contemplated that. The Governor General takes advice from her appointed advisers.

That is the person to whom she must look. She obviously has to look to the surrounding circumstances to see whether there's doubt as to whether the Prime Minister enjoys the confidence, and I suppose the statements of the Speaker of either the House or the Senate would be relevant to that. But they are not advisers to the Governor General, nor are the opposition parties advisers.

The fact that the opposition parties wrote to the Governor General is important in the sense that it indicated, first, that there was doubt, significant doubt, that the government had confidence—it was certain, in fact, that the government would be defeated—and second, that there was a likely alternative government that could have been formed in the circumstances.

I don't think the Speaker is an adviser in that sense, and any advice the Speaker might have given would not have been binding or particularly in the nature of advice that she would be required to follow as a matter of constitutional principle.

I believe I'm going to have to—

[The Chair, Conservative, Joe Preston]

Thank you. I'm going to let you go.

At this moment, we thank you. It has been very informative for us today, and it was great to get another set of opinions on this.

Professor Monahan, thank you for coming. You are excused.

[Prof. Patrick Monahan]

Thank you.