At the time
this article was written James Ross Hurley was a Special Advisor
(Constitutional Affairs) in the Machinery of Government Secretariat, Privy
The Spring issue of the
Canadian Parliamentary Review featured an article on the role of Lieutenant
Governor by Professor Ronald Cheffins including a discussion of the conditions
when a Governor General or Lieutenant Governor may refuse a request for dissolution
by a Prime Minister. This comment suggests that there are actually fewer
circumstances when dissolution may be refused than those cited by Professor
Professor Cheffins’ paper is an
important reference document on the powers of the Crown at both the federal and
provincial levels. The last two paragraphs are particularly trenchant in
setting out fundamental principles.
There is, however, one point
Professor Cheffins makes with which I take issue. He raises the question of the
power of dissolution of Parliament and faithfully provides the position
established by Eugene Forsey in his 1943 publication, The Royal Power of
Dissolution of Parliament in the British Commonwealth, for justifying the
circumstances when a Governor General could refuse the advice of a Prime
Minister to dissolve Parliament.
Dr. Forsey addressed the
Byng-King crisis of 1926 in which Prime Minister King, during an adjournment of
the debate in the House of Commons on what was deemed to be a want of
confidence motion, asked the Governor General, Lord Byng, for a dissolution so
that would not have to face (and lose) a vote of censure.
Dr. Forsey considered Lord
Byng’s refusal of a dissolution to Prime Minister King was justified because a
general election had been held about nine months earlier and that there was the
possibility of an alternative government capable of carrying on the governance
I am not certain these two
reasons, cited in 1943, have stood the test of time. The first justification
was seriously undermined when General Vanier granted a dissolution to Prime
Minister Diefenbaker on February 1, 1958, about eight months after the previous
general election. Indeed, Mr. Diefenbaker was again granted a dissolution about
eight months after the 1962 general election, following the defeat of his
Government on a no confidence vote on February 5, 1963.
The second reason cited by Dr.
Forsey is also problematic. Following the defeats of minority governments on motions
of no confidence in 1963, 1974 and 1979, the Governor General granted
dissolution without, it would appear, any attempt to verify whether an
alternative government capable of carrying on the governance of Canada could be
formed. Indeed, in minority situations it is likely that all political actors
would favour an immediate election to clear the air after the defeat of the
Ironically enough, it was Arthur
Meighen who provided a reason, rooted in the basic principles of responsible
government, that would justify a refusal by the Governor General to grant
dissolution in the circumstances of today.
“A dissolution very manifestly should not be
granted when its effect is to avoid a vote of censure....To demand such a right
is not to plead for responsible government; it is to plead for irresponsible
government; to demand such a right is not to uphold our parliamentary
institutions; it is really to stifle those institutions; to demand such a right
is not to plead the cause of parliament; it is in effect to choke and strangle
and prevent parliament from expressing its will....” (Cited in Eugene Forsey,
The Royal Power of Dissolution of Parliament in the British Commonwealth,
Toronto: Oxford University Press, 1943, pp. 162-3).
If a Prime Minister were to seek
to prevent a House of Commons from exercising its fundamental and defining
power – to grant or to deny confidence to the Government of Canada – there
would be a strong case for the Governor General to use his or her discretionary
powers to protect parliamentary democracy.
While a motion of no confidence
is under debate and has not been voted upon, especially if the Government’s
capacity to win that vote is uncertain, the Governor General would be
justified in refusing a Prime Minister’s advice to dissolve Parliament. The
purpose of such a refusal would not be to force the resignation of the
Government and to appoint an alternative one, but to allow the Commons to
express its will.
Once the vote had been held, it
would be very difficult (on the basis of the precedents of 1963, 1974 and 1979)
for the Governor General to refuse the advice of the Prime Minister to dissolve
Parliament, even if the Government had been defeated.
It follows that I do not share
Professor Cheffins’ view that “It is quite clear that without an alternative
government capable of carrying on, a refusal of dissolution would be