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Cablegate: "Unchartered Waters" for the Governor General

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

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