VZCZCXYZ0000
OO RUEHWEB

DE RUEHOT #1511/01 3381919
ZNR UUUUU ZZH
O 031919Z DEC 08
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 8805
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

UNCLAS OTTAWA 001511 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV CA
SUBJECT: "UNCHARTERED WATERS" FOR THE GOVERNOR GENERAL 
 
REF:  OTTAWA 1507 
 
¶1. (SBU) Summary: The usual ceremonial role of a Governor General 
may slip into a grey constitutional zone as she faces an imminent 
decision on a possible new federal election, prorogation of 
Parliament, or even formation of a new coalition government.  While 
Governors General in Canada have almost always followed the advice 
of their prime ministers, theoretically the Governor General could 
exercise unwritten vice-regal "reserve powers" and make an 
independent decision that flies in the face of what Prime Minister 
Stephen Harper requests.  Constitutional experts are divided, but 
agree that the Crown in Canada is possibly entering "unchartered 
waters."  End Summary. 
 
BROAD POWERS, THEORETICALLY 
--------------------------- 
 
¶2. (SBU) The Canadian Governor General plays primarily a ceremonial 
role.  However, in this constitutional monarchy, the Crown retains 
the right to be consulted, to advise, and to warn.  As Queen 
Elizabeth II's representative, the Governor General theoretically 
possesses rarely used but possibly significant "reserve" or 
prerogative powers.  These vice-regal powers, called the 
"conventions of the Constitution," derive from the Constitution Act 
of 1867, which gave Canada a "constitution similar to that of the 
United Kingdom."  The conventions evolved from unwritten British 
parliamentary custom and precedent; experts have described them as 
"the residue of discretionary or arbitrary authority, which at any 
given time is left in the hands of the Crown" and which potentially 
include a significant degree of subjectivity. 
 
¶3. (U) There are three main reserve powers: to summon, prorogue, and 
dissolve Parliament; to dismiss a Prime Minister; and, to delay or 
refuse royal assent to legislation.  No Canadian governor general 
has ever dismissed a prime minister, however.  Royal assent has only 
been withheld once before in Canadian history, but only regarding 
provincial legislation in Alberta in the 1930s. 
 
¶4. (U) The Governor General's primary duties are to ensure that 
Canada has a stable and functioning government at all times and to 
act in the best interests of Canada.  In a minority government like 
that of the Conservatives under Prime Minister Harper, how to 
achieve this is governed more by guidelines than by hard rules.  By 
custom, the Governor General is expected to follow the advice of a 
sitting Prime Minister.  If the Governor General refuses that 
advice, a prime minister theoretically has no alternative but to 
resign.  Guidelines set down in 1950 by Sir Alan Lascelles, 
then-secretary to King George VI, advise that no "wise Sovereign" 
[or vice-regal representative] would deny a prime minister's request 
to dissolve Parliament unless "(1) the existing Parliament was still 
vital, viable and capable of doing its job; (2) a General Election 
would be detrimental to the national economy; (and) (3) he [the 
King] could rely on finding another Prime Minister who could carry 
on his Government, for a reasonable period, with a working majority 
in the House of Commons."  The advice potentially leaves 
considerable degree of discretion to the sovereign or his or her 
representative. 
 
¶5. (SBU) Similar discretion applies to the prerogative to prorogue 
Parliament. Usually a routine request to allow a government to 
refresh its legislative agenda, prorogation so soon after a federal 
election would be without precedent in Canada, especially when the 
second Harper government has not yet even presented any legislation. 
 In the present context, prorogation could effectively be a 
parliamentary "time-out" to defuse political tension and to delay or 
Qparliamentary "time-out" to defuse political tension and to delay or 
avoid a vote of non-confidence.  Some experts have argued that this 
would be undemocratic and an unprecedented mis-use of procedure. 
Others argued that the Governor General could use this discretion 
and match such a request with an also unprecedented "qualified 
prorogation" that would limit the PM's ability to govern until he 
faced the opposition in the House of Commons.  Some have suggested 
that limits could be similar to a caretaker government during an 
election campaign, which can conduct only routine business, without 
the ability to implement new policy. 
 
PRECEDENTS 
---------- 
 
¶6. (U) The "King-Byng" affair in 1926 helped define vice-regal 
authority.  Then-Governor General Lord Byng denied Liberal then-PM 
Mackenzie King's request to dissolve Parliament in the face of PM 
King's likely defeat on a non-confidence vote in the Commons shortly 
after the September 1925 federal election.  Lord Byng invited the 
leader of the opposition to form a government, which lasted only a 
few months.  King, who won the ensuing election, campaigned on the 
basis that a governor general must always accept the advice of the 
prime minister.  Subsequent Canadian governors general have allowed 
elections after short-lived minority governments in 1958 (nine 
months), 1963 (10 months), and 1979 (nine months.)  However, to call 
an election barely two months after a previous election would be 
unprecedented. 
 
COMMENT 
------- 
 
¶7. (SBU) Governor General Michaelle Jean, who returned to Ottawa on 
December 3, will likely be guided by custom in the present 
situation, although the complexities of the current impasse (reftel 
and previous) mean that she may also end up establishing a new 
precedent for vice-regal authority.  Her primary challenge must be 
to act in the best interest of Canada, while preserving the 
non-partisan character of her office. 
WILKINS