"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).
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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:
