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"Prime Minister Stephen Harper's apparent plan to call a general election this coming week, in defiance of the government's own legislation fixing October, 2009, as the date of the next federal election, has triggered a good deal of controversy this past week," constitutional expert Patrick Monahan wrote Saturday in his Globe essay The request the G-G can't refuse .

"A number of commentators have argued that calling an election without waiting for the House of Commons to reconvene on Sept. 15 would violate established constitutional conventions or norms.

"Some have even claimed that the election call would be illegal, in light of the government's fixed-election date legislation, and suggested that the Governor-General, Michaëlle Jean, should carefully consider whether she should accept the Prime Minister's request.

"In fact, while the Prime Minister's election gambit may violate political commitments, it is perfectly consistent with constitutional norms and practices, and would not violate the fixed-date election legislation," concludes Prof. Monahan, dean of the Osgoode Hall Law School at York University.

"The first point to recognize is that, under Westminster-style parliamentary systems such as our own, a prime minister has virtually absolute discretion to determine the date of a general election.

"While the formal legal power to trigger an election rests in the hands of the governor-general, there is a firm constitutional requirement that she will exercise her powers only on the advice of the prime minister.

"Thus when the prime minister asks the governor-general to dissolve Parliament and fix the date of the election, the governor-general is expected to automatically grant the request without making an independent assessment of its merits."

"It has been suggested that there may be exceptional circumstances in which a governor-general might be justified in exercising a "reserve power" and refusing to grant a prime minister's request for a dissolution."

But, he argued, in the current circumstances, "there is no basis for the Governor-General refusing to follow his advice."

Whether you agree or not, it's a provocative thesis, so we are glad that Prof. Monahan joined us online Wednesday to take your questions on his essay, the constitution, the role of the Governor General, and the probable election call.

Your questions and Prof. Monahan's answers appear at the bottom of this page.

Patrick J. Monahan has been a member of Osgoode Hall Law School's faculty since 1982 and Dean since July 1, 2003.

He is also Chair of the Board of Governors of the Ontario Law Commission, which is housed at Osgoode Hall Law School commencing in the 2007-08 academic year.

Between 1986 and 1990, he was Senior Policy Advisor to the Attorney General and Premier of Ontario respectively where he played a key role in the negotiation of the 1987 Meech Lake Accord.

Prof. Monahan has acted as advisor to the federal government as well as a number of provincial governments respecting economic, constitutional and international trade matters.

He was the Director of the York University Centre for Public Law and Public Policy for most of the 1990s, through to 2002. and is the author of several books, including Constitutional Law, 3rd edition (Toronto: Irwin Law, 2006) and Liability of the Crown, 3rd edition (with Peter Hogg) (Toronto: Carswell, 2000).

Editor's Note: globeandmail.com editors will read and allow or reject each question/comment. Comments/questions may be edited for length or clarity. HTML is not allowed. We will not publish questions/comments that include personal attacks on participants in these discussions, that make false or unsubstantiated allegations, that purport to quote people or reports where the purported quote or fact cannot be easily verified, or questions/comments that include vulgar language or libellous statements. Preference will be given to readers who submit questions/comments using their full name and home town, rather than a pseudonym.

Brodie Fenlon, globeandmail.com: Thank you for joining us Prof. Monahan. With Mr. Harper expected to visit the Governor-General any day now, your essay and this discussion generated plenty of interest. We'll to get to as many reader questions as we can. I'd like to start the discussion with a question that was repeated many times. Here's how it was put by three of our readers:

Mohan Matthen from Toronto writes: When a government loses a confidence vote in the House of Commons, it usually has to resign. Then the Governor-General has to determine whether to dissolve the House and call elections, or look for another government within the existing Parliament. Stephen Harper will advise the G-G to dissolve the House on the grounds that Parliament will be 'chaotic'. I would be happy if Professor Monahan would explain why the G-G shouldn't ask Stéphane Dion whether he could form a government. It is of course unlikely that he will be able to do this. But not impossible. Neither the Bloc nor the NDP wants an election immediately. Maybe they will agree to prop up a Liberal government for a few months. M Clement Hall from Guelph writes: It is my understanding that in the U.K. when the Prime Minister goes to the Monarch to say he cannot make government function and requests a general election the Monarch may turn to the leader of the 'loyal' opposition, and ask whether he can do any better. Does this practice pertain to Canada? Carl Raskin from Ottawa writes: In my view, the Governor General would be justified in refusing to call an election, and call upon Mr. Dion to form a government and attempt to meet Parliament. There is precedence for this: One recalls not only the famous 'King Bying Thing' but also the 1985 Ontario election. There, the Lt. Governor called upon Mr. Peterson to form a government, following a Conservative defeat in the House, instead of calling an election. Granted, there was an agreement between the Libs and the NDP and at the time, Frank Miller told the House there was another party ready to form government. That said, this Parliament still has several years on its mandate. Moreover, the government has not been defeated in the House. It is possible that Mr. Dion could carve a coalition or agreement with the NDP. Finally, notwithstanding the legalities of the issue, the decision in the end will be political and not legal.

Patrick Monahan: Mohan thanks for the question. The reasons for my conclusion that the G-G should not call upon Mr. Dion to form a government are really twofold. First, and most importantly, the Prime Minister still enjoys the confidence of the House of Commons, having survived numerous confidence votes during the last session of Parliament. To be sure, over the summer Mr. Dion has hinted that he might defeat the government sometime this fall. However he was not definitive in that regard, and left open the possibility that he would continue to support the government through the fall session. It is also relevant, I think, that Mr. Dion had threatened on a number of occasions in the past year to bring down the government, only to instruct sufficient numbers of his MPs to absent themselves from the House so that the government would survive.

The fact that Mr. Harper still enjoys the confidence of the House is critical since, under our system of responsible government, the G-G is expected and required to act on the advice of a Prime Minister in this position. The PM is asking Madame Jean to dissolve the House and fix the date for a general election, and she should therefore act on this advice.

The second, independent reason why the G-G ought not to call upon Mr. Dion is that he has made no claim to be in a position to form a government that could command the support of the House. Even during the past week, when it became clear that the Prime Minister was intending to trigger an election, Mr. Dion did not suggest an alternative of asking the Liberals to form the government. The reason why Mr. Dion has not advanced this suggestion is that it would be quite implausible. The current party standings have the Liberals with 95 seats, which is 60 seats short of what they would need to form a majority. So Mr. Dion would need the support of both the other major opposition parties in order to form a government. Neither Mr. Duceppe of the Bloc nor Mr. Layton of the NDP has given any indication that either of them would support a Dion-led government. Thus, even assuming for the sake of the discussion that Mr. Harper no longer enjoyed the confidence of the House, there is no practical alternative other than to dissolve Parliament and call an election.

So all roads lead to an election.

Carl it seems to me that the precedent you cite reinforces the suggestion that an election is the only practical alternative in the present circumstances. In 1985, an election had just been held and, although Frank Miller (the incumbent premier) won the most seats, David Peterson of the Liberals reached an agreement with Bob Rae of the NDP whereby Mr. Rae agreed to support a Peterson-led government for two years. The "Accord" was reached prior to the first meeting of the legislature after the election. From that point on, it was clear that Mr. Miller would be defeated and that Mr. Peterson was in a position to form a government.

Of course, this is exactly what happened; the legislature was called into session, Mr. Miller was defeated on a vote of confidence, and the Lieutenant Governor, John Black Aird, called upon Mr. Peterson to form the government. Significantly, Mr. Miller advised the L-G to call upon Mr. Peterson, and did not seek a second election. Had Mr. Miller sought a dissolution in those circumstances, Mr. Aird would have been justified in calling upon Mr. Peterson in any event.

The differences between the current situation and that in Ontario in 1985 are quite significant. As I indicated above, Mr. Dion is not in a position to form a government, since he does not have the support of the other opposition parties. Moreover, it has been nearly 3 years since the last general election, whereas in 1985 the election had taken place just weeks before and the legislature was meeting for the first time post-election. So it seems to me that the differences between the current situation and that prevailing in Ontario in 1985 just underline the fact that the only proper and practical alternative is for the G-G to accept Mr. Harper's advice and dissolve the House.

Darcy Meyer from Canada writes: Your conclusion that the Governor General can not refuse a request from the PM in this case has lead many people to question what role the G-G serves if she simply 'rubber stamps' a request to dissolve parliament from the Prime Minister. Could you give examples of scenarios when the Governor General would be justified in refusing the advice of the Prime Minister in the current constitutional framework, and reinforce the important role the Governor General serves in this context?

Patrick Monahan: In fact, 1985 Ontario precedent provides us with a good illustration of the circumstances where the Governor's "reserve power" might well come into play. Suppose that in June 1985, following his defeat in the House, Frank Miller had advised the L-G to dissolve the House and call another election, rather than calling on Mr. Peterson to form a government. I believe that Mr. Aird would have been entitled to ignore that advice and call upon Mr. Peterson anyway. First, Mr. Miller would have been seeking his second dissolution in a matter of months, since he had asked for the dissolution that had led to the election of May 2, 1985. Second, Mr. Miller had by then clearly lost the confidence of the House, meaning that the L-G was not bound to automatically follow his advice. Third, the Liberal-NDP Accord made it clear that Mr. Peterson was in a position to form a stable minority government. So in my view this provides an illustration of a situation where it would have been appropriate for a Governor to refuse to follow the advice of a prime minister.

Alexander Slimnich from Canada writes: Hello Patrick, I made the following comment about your article. I'm wondering if you agree with my interpretation? In other words.. the fixed-date election law isn't worth the paper it's printed on. It is still up to the Governor General (and hence, by convention if not the letter of the law, by which I mean the constitution, the Prime Minister) to call an election - and the G-G need not abide by the fixed-date law. And, in fact, this could work the other way. To prolong a government beyond the fixed date (but before the constitutionally-mandated 5 year maximum time span), should the G-G decide (probably under advice from the PM) to not dissolve Parliament and call an election at that time. For the legislation to have teeth (and to avoid requiring a constitutional amendment, which is way too messy given the broken amendment formula), the PM ought to be prevented by this law from advising the G-G to drop the writ at any time other than that specified in the fixed-date law. Since this has been omitted, the law is practically useless.

Michael S. Ventresca from Toronto writes: Professor Monahan, Can you clarify the point of the 'fixed-election date' legislation passed by the Harper government, since it sets no actual limits on the ability of the G-G to dissolve parliament? Didn't Canada already have fixed elections every five years?

Patrick Monahan: Alexander I think the substance of your comment is correct. Although the legislation was advertised as fixing the dates for an election, it still preserved the discretion of the G-G to dissolve the House at any time. What we now see is that the PM could seek an early dissolution. Conversely, as you point out (and I think quite astutely) this could have meant that Mr. Harper could have legally refrained from advising the G-G to dissolve the House in time for the election scheduled by law for October 19, 2009. Nothing in the law compelled Mr. Harper to request a dissolution and, absent a request from the PM, the G-G would not have dissolved the House on her own. In this sense, the legislation might properly been seen as providing for "fixed elections if necessary, but not necessarily fixed elections" — to paraphrase the famous comment by Mackenzie King on conscription. There was no legal requirement that the election be held on the date specified in the legislation. It was ultimately a political obligation, and the only sanction for breach of a political obligation is that administered by voters at the polls.

Andrew Smith from Toronto writes: A few quick questions: First, is there a difference between a PM or Premier asking for an election after a vote of non-confidence versus a first minister asking for a dissolution of parliament before the vote has been taken? Second, what post-1926 precedents exist at the provincial level that can guide the Governor-General at this time? What international precedents exist? Third, didn't the great constitutional authority Eugene Forsey argue convincingly that Lord Byng acted correctly in refusing King's Liberals a dissolution of parliament? Isn't the consensus view nowadays that Byng's actions were entirely constitutional. For the record, Forsey was a social democrat and a CCFer and thus could view the struggle involving King, Byng, and Meighen in a relatively impartial way. Fourth, Patrick-- this may seem like an intrusive question, but in the interests of full disclosure, it might be interesting to know if you voted in the last election. If so, how did you vote? We know Forsey's partisan allegiance (he was neutral in the battle between King and Meighen). It would be helpful to know your allegiances, if any.

Patrick Monahan: Andrew an interesting series of questions. Let me offer a few general comments. First, in terms of the post-1926 precedents, I think they all ultimately support the proposition that the G-G should dissolve Parliament at the request of the PM. This is because there is not a single instance in Canada over the past 82 years where the G-G has refused a dissolution request from a Prime Minister. Second, I agree with you that the majority of constitutional experts now believe that Lord Byng acted properly in refusing King's request. Nevertheless, the actions of Lord Byng remain somewhat controversial because (i) although defeat seemed certain and imminent, King had not yet been defeated in the House, and it is traditionally for the Prime Minister to form an opinion as to whether he enjoys the confidence of the House; and (ii) Meighen's government was defeated within a week of taking office; and (iii) King made the refusal to the G-G an issue in the subsequent campaign, which returned him to office with a working majority in the House. As for my own allegiances, I honestly do not regard it as a legitimate question to inquire into how an individual has voted in past elections, as a condition of participating in public debate. I think the secret ballot is a key part of our democratic system, and I think your approach — to ask anyone commenting on the issues to indicate how they have voted — would not be in the public interest. It would really cast a chill on debate and, in any event, would divert attention from the substance of the debate. But in the interests of full disclosure, I can tell you that I have no connections or ties to any of the major parties, and thus am independent of the protagonists. I am prepared to call things as I see them candidly and directly.

Louise Fribance from Abbotsford writes: Can you comment about Prof. Ellor Mendes wanting to challenge Mr. Harper on his calling an election on constitutional grounds?

Patrick Monahan: Professor Mendes is a good friend and a leading constitutional authority. I read a newspaper account suggesting that he believed Mr. Harper's election call could be challenged, apparently on the basis that the fixed-date election legislation prevented the PM from seeking a dissolution from the G-G. As I explained above, I don't see the legislation as having that effect. But I have not spoken to Professor Mendes directly, and there may well be some arguments that he has developed that haven't occurred to me. It will be interesting to see if he proceeds with his challenge.

Alan Pater from Vancouver writes: If Dion and Layton announced that they wanted to form a coalition minority government and that such a government could maintain confidence until October 2009, would the governor general be within her legal mandate to grant the request, rather then call an election? Could such a government last by making every vote in parliament a free vote, rather then allowing any confidence votes during the year it maintained power?

Patrick Monahan: Even if Dion and Layton teamed up they wouldn't have enough seats to form a majority. Their combined seat total is 125, which is 30 seats short of a majority. They would need Mr. Duceppe on board as well to form a government. There seems no possibility of that happening.

Ed Long from Canada writes: This live session, and preceding comment board, exist because many Canadians believe there is an issue with the PM calling an election out of House and possibly against the 'intent' if not the legal interpretation of his own law. None of this would exist if the PM simply walked into the House to forward the motion to dissolve Parliament. The issue is an election call outside of the elected house of representatives with the assumed 'rubber stamp' of an appointed Head of State. It may be constitutionally legal, but is it respectful of the distinct democratic principles and institutions of this country?

Patrick Monahan: In fact, Mr. Harper is acting in a manner that is perfectly consistent with Parliamentary tradition. The House is dissolved by order of the governor-general. The Prime Minister might indicate to the House that he was intending to visit the G-G and seek dissolution, but the act of dissolution does not occur on the floor of the House.

Dr. Gerald Heckman, Faculty of Law, University of Manitoba writes: Dean Monahan, Thank you for your very interesting and provocative essay. You argue that Governor General Michaëlle Jean would be obliged to dissolve Parliament if called upon by Prime Minister Harper to do so. It is true that responsible government requires the Governor General to follow lawful and constitutional advice tendered by cabinet (and the Prime Minister as head of cabinet) but only so long as it enjoys the confidence of a majority in the House of Commons. You acknowledge that Governor General Lord Byng's refusal in 1926 to grant a dissolution requested by Liberal Prime Minister McKenzie King means that the Governor General may have a "reserve power" entitling her in similar circumstances to refuse a prime minister's request for an election. However, you suggest that the circumstances today are different. First, you say that "there can be no doubt that [Prime Minister Harper] still enjoys the confidence of the House…" while King likely no longer enjoyed the confidence of the House, since he was virtually certain to be defeated on an impending confidence vote. I would argue that there is nothing to say that Prime Minister Harper still enjoys the confidence of the House. The only way to be certain is for the House to reconvene in the Fall. Moreover, Prime Minister Harper's own approach is essentially based on the assumption that he no longer has the confidence of the House. He will be seeking dissolution on the basis that the opposition parties wish to defeat his government as soon as Parliament resumes. Prime Minister Harper is in fact claiming that his position is identical to King's: his government is facing impending defeat in Parliament. Second, you argue that while Arthur Meighen's Conservatives, who were subsequently invited by Lord Byng to form a government, could claim they were in a position to form a stable minority government, Liberal leader Stéphane Dion cannot. But when Lord Byng refused King's request for dissolution, it was clear that the conservatives would have great difficulty forming a government, because each new conservative Minister with portfolio would by law have to vacate his seat and seek re-election in a by-election. I would argue that the Byng incident illustrates that while it could be difficult for Dion to form a minority government were he invited to do so, this does not prevent the Governor General from refusing the Prime Minister's request to dissolve Parliament. In these circumstances, it is unclear why your third observation — that Harper is seeking his first dissolution while King was seeking his second dissolution — should preclude the Governor General from refusing Prime Minister Harper's request. A decision to refuse his request, one could argue, would be fully compatible with the unwritten principle of democracy that underlies Canada's constitution and that should guide the Governor General's exercise of discretion. Requiring the House to convene in the Fall would allow the majority of Canada's elected MPs to determine whether the Conservative government indeed enjoys the House's confidence or whether it should be defeated and would protect and reinforce the central role of Parliament in our democracy — a role that underlies the principle of responsible government. I would suggest, then, that we cannot conclude that the Prime Minister indirectly "retains full authority" to dissolve Parliament at any time. In light of the Byng incident, the Governor General retains a narrow discretion to refuse the Prime Minister's advice. In so far as the present situation is analogous to that prevailing in 1926, nothing in my view prevents Michaëlle Jean from so exercising her discretion when Prime Minister Harper comes calling.

Patrick Monahan: Gerald good to hear from you, and thank you for the thoughtful comment. You seem to be raising an additional possibility or scenario that I did not consider in my essay. If I understand your argument, you are saying that the G-G can refuse the PM's request to dissolve Parliament but, instead of calling upon Mr. Dion to form a government, the G-G could call the House into session and force Mr. Harper to face a vote of confidence. I have a few problems with this suggestion.

First, I see no precedent or authority for such a decision by the G-G. In the only precedent on record, the 1926 King-Byng incident, Byng called upon opposition leader Meighen to form a government. It really would be quite extraordinary and I think improper for the G-G to refuse the advice of the PM, but then have the PM continue in office. If the G-G is going to refuse to follow advice it can only be on the basis that the PM has already lost the confidence of the House. In that case, the only alternatives are (i) an election, or (ii) calling upon Mr. Dion to form a government. Your 'third way' (refusing to follow the advice of the PM, but keeping the PM in office) does not seem viable to me.

Second, it seems to me that your suggestion is impractical in any event. All it will do is postpone an election by a matter of weeks. If the House does meet and a vote of confidence is held, win or lose Mr. Harper will be coming back to Ms. Jean seeking a dissolution. Mr. Dion will not be able to form a government, for reasons I have explained earlier. So I really cannot see the purpose that would be served by refusing the PM's request for an election.

Gathering Line from Halifax writes: Mr. Harper said that it is his job, as Prime Minister, to ensure parliament can function properly. Isn't that the Governor General's job? Also, since Mr. Harper's stated premise for this election is that he cannot forward the government's agenda in the present configuration of Parliament, can Ms. Jean include a proviso in a dissolution whereby, if the electorate returns a similar minority configuration - like the one in which Mr. Harper currently claims he cannot do his job - she will ask the leader of the party with the second highest number of seats to form a government instead?

Patrick Monahan: The G-G is not to take any part in the functioning of Parliament. That is a political role. The G-G is to remain "above the fray" by acting strictly on the advice of the Prime Minister. If the voters want a different Prime Minister, they can vote for someone else in the election. But as long as Stephen Harper is Prime Minister, the G-G must follow his advice. As for deciding in advance to call upon the leader of the party with the 2nd largest number of seats, I think the proper approach is quite different. The Prime Minister stays in office throughout the election, since the act of dissolving Parliament does not dissolve the government. If Harper receives the largest number of seats in the election, he would be entitled (although not required) to continue in office and face Parliament. If he were to resign (either before or after a vote in Parliament), then the G-G would assess the situation and determine whether there was an opposition leader who was in a position to form a government. If so, she would call on that leader to assume the post of PM and form a government.

David Guy from Canada writes: Prof. Monahan, let me ask you an even trickier question: Assuming for a moment the Governor-General cannot really refuse assent for an election call, is her role even a necessary part of the process? Furthermore, does Canada need a Governor-General, especially given what some see as lavish and excessive office travel budgets?

Patrick Monahan: I think we do need a head of state, separate from the head of the government. Whether that office is to be appointed or chosen in some other way is a matter of debate. I also think that the expenses of the G-G are really quite modest and appropriate for a country such as Canada and do not merit any form of criticism or negative comment.

Brodie Fenlon, globeandmail.com: Thanks again to Dean Monahan for his time and thoughtful answers today. There were many questions we couldn't get to. Please feel free to continue to discussion on our comment board .