In October, 2009, Canada’s Governor-General, Michaëlle Jean, said in a speech in Paris, “I, a francophone from the Americas, born in Haiti, who carries in her the history of the slave trade and the emancipation of blacks, at once Québécoise and Canadian, and today before you, Canada's head of state, proudly represent the promises and possibilities of that ideal of society.” This seemingly innocuous statement, which it might be thought would have made Canadians proud that their country could be so open, free and ready to accept and respect able persons regardless of sex, colour, creed or origins, instead led to heated controversy. The issue was Ms. Jean’s claim that she was Canada’s “head of state.” Prime Minister Stephen Harper joined the fray, as did the Monarchist League of Canada, both stating categorically that Queen Elizabeth II is Canada’s head of state, and that the governor-general serves as the Queen’s representative in Canada.
This, it could be argued, was a tempest in a teapot and simply a matter of words, not substance, and that, regardless of the name given to the office of governor-general, the functions and job remain the same. But the role of the governor-general, including the question of who is Canada’s head of state, needs to be reconsidered, not least because, with continuing minority parliaments, the governor-general faces the possibility of having to exercise the reserve powers of the Crown and reject the advice of the prime minister.
The term “head of state” has no constitutional or legal status or meaning in Canada. It does not appear in the Constitution Act, 1867, or in any Canadian statute. In both Canada and Britain “head of state” describes the functions of an office. It is not a legal or constitutional title. The functions of the British monarch and the Canadian governor-general are almost entirely ceremonial, unlike in the United States, where the positions of head of state and head of government are combined in the office of the president. The “Crown” is a recognized and essential component of Canada’s constitutional and legal structure; the “head of state” is not. The issue of whether the Queen or governor-general is Canada’s head of state is a question of sentiment and informal recognition. It has no constitutional or legal importance.
ALL THE POWER OF THE SOVEREIGN
The British monarch appoints the governor-general, though this is done on the recommendation of the prime minister of Canada. The monarch also can appoint additional senators under sections 26 to 28 of the Constitution Act, 1867, though this power has been used only once, in 1990. Apart from these two minor exceptions, which continue to exist because of an inability to agree on reform and historical accident, respectively, since 1947 the governor-general has exercised all the powers of the sovereign in Canada.
It is not surprising that the difficulties over terminology arose during an official visit in a foreign country. How is the Governor-General to describe herself to a foreign audience that knows little about Canada? Should she say that she is Canada’s Governor-General and leave it at that? The term “governor-general” is not a common one among the nations of the world outside the Commonwealth, and the significance of the position, unlike a “head of state,” is not at all obvious. Would it have made things clearer if the Governor-General had explained that Queen Elizabeth II is Canada’s head of state, and that the Governor-General is the Queen’s representative in Canada? This would have left the unfortunate impression that Canada is not self-governing, and is subservient to the head of state of a foreign country. These convolutions confuse more than they clarify. No wonder that successive Canadian governors-general have described themselves to foreign audiences as Canada’s head of state.
Though the vast majority of the governor-general’s work is routine and non-contentious, from time to time occasions arise when a governor-general must exercise independent judgment. In 1873, Sir John A. Macdonald, the prime minister, fearing a non-confidence vote over the Pacific Scandal, asked the governor-general, Lord Dufferin, to prorogue Parliament. Dufferin consulted widely. He granted Macdonald a prorogation, but only for 10 weeks. When the House of Commons met that October, Macdonald, still facing a vote of confidence and losing support, resigned and Alexander Mackenzie took over as prime minister.
