Jan. 21, 2021

The perils of unconstitutional governance

The news of Governor General Payette’s resignation or a similar problem was inevitable. There is a precedent and more to come. Our federal government is operating unconstitutionally. 

Our constitution requires that:

9.   The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

10. The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the time being of Canada, or other the Chief Executive Officer or Administrator for the time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.

11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen’s Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General. 

There is more, but that is enough for now. The Privy Council is properly the Queen’s Privy Council, not the Prime Minister’s Privy Council. The Clerk of the Privy Council reports to the Governor General, not to the Prime Minister.

The Privy Council Clerk is also head of the federal civil service, must be politically neutral and ensure that the entire civil service is politically neutral. The civil service must serve whatever government the people elect without bias, favour, fear or partisanship. Having the Clerk of the Privy Council reporting to the Prime Minister is unconstitutional. It robs the Governor General of his/her powers and politicizes the Privy Council and civil service.

The executive powers exercised by the Governor General must be politically neutral. It follows that advisors on the Privy Council must also be neutral or politically balanced. The current practice of having the functioning privy council made up of government cabinet ministers does not serve Canada’s interests.

The Prime Minister is mucking about in affairs outside his constitutional jurisdiction to the detriment of the nation. The executive power resides with the Governor General, not with the Prime Minister. The Governor General, not the Prime Minister, decides who will sit on the Privy Council.

One of the indicators of how wrong the current framework is was when the Privy Council Clerk was badgering the Solicitor General in the SNC-Lavalin scandal. That is not the constitutional role of the Privy Council Clerk. He is not the Prime Minister’s servant and must be politically neutral. That is particularly important following a general election when the Governor General may be called on to choose the Prime Minister of a minority government.

Now the Governor General has been deemed unfit for office and resigned. Had she been appropriately guided by a politically neutral and experienced Privy Council Clerk, the debacle could have been avoided.

The Privy Council Clerk was moved to the Prime Minister’s Office under an Order in Council in 1940 by then Prime Minister Mackenzie King. An Order in Council cannot change the constitution. At the time, a constitutional change would have required Whitehall’s consent, which was not applied for or given.  

We must repair the unconstitutional federal government framework. Installing a replacement Governor General is not sufficient. He/she must have constitutional powers and a neutral Privy Council to ensure that he/she can lawfully exercise his/her duties.