The prorogation of parliament in 2008 left Canadians – politicians, academics, and the electorate alike – scrambling to figure out the constitutional role of the governor general. Across the country many questions were posed, but they were answered without a thorough historical examination of the practice of prorogation or an analysis of the development of responsible government in the Westminster system. The answers tended to analyze the quality of the prime minister’s advice – an issue entirely separate from the constitutional role of the governor general in Canada.
Of the scholarship on the Harper-Jean prorogation of 2008, Andrew Heard occupies one extreme in his support for the use of the reserve power in matters of prorogation and the argument that Governor General Michaëlle Jean should have rejected Prime Minister Stephen Harper’s advice to prorogue in 2008.1 In the middle, C.E.S. Franks also acknowledges the applicability of the reserve power to prorogation but reluctantly concludes that “the governor general made the right decision.”2 Peter Hogg, Adam Dodek and Barbara Messamore accept that the reserve power still applies to prorogation but believe that the governor general wisely accepted the prime minister’s advice for various reasons more emphatic than those of Professor Franks.3 Professor Hogg, for instance, believes that an imminent vote of confidence suffices to activate the reserve power that allows a governor general to reject a prime minister’s advice.4 At the other extreme, Henri Brun argues that the governor general possessed no personal discretion because the reserve power does not apply to prorogation; he supports a more narrow interpretation of the power and would sanction it only in the gravest emergency.5 Guy Tremblay agrees with Professor Brun and believes that “the governor general must accede to a request of prorogation or dissolution.”6 Finally, based on the writings of the late Professor Robert MacGregor Dawson, the Harper-Jean prorogation of 2008 did not meet the constitutional test on the acceptable use of the reserve power.7 Of these scholars, only Professor Messamore devoted serious attention to the little-known Macdonald-Dufferin prorogation of 1873 and applied its lessons to the Harper-Jean prorogation of 2008; in contrast, Professors Franks and Russell invoked the King-Byng Affair of 1926, which involved dissolution and not prorogation, and therefore provides a bad example with respect to the Harper-Jean prorogation.
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