time for a constitutional lesson

For the next few days, and maybe longer, we are going to be hearing a lot of conflicting arguments regarding who should lead Canada’s government. Many of the arguments will ignore the realities of the Canadian Constitution and parliamentary democracy. So time for a lesson, from someone who has been following Canadian politics and history for half a century, has witnessed successions of minority and majority governments and holds a degree in history and political science majoring in Canadian government and politics.

• The Governor General, representing Elizabeth, Queen of Canada, is the head of Government of Canada which is composed of the Senate and House of Commons and subject to the oversight of the Supreme Court of Canada (it is not insignificant that the Chief Justice of the Supreme Court is first in-line to act for the Governor General if (s)he is absent). Neither the House of Commons, the Senate nor the Supreme Court are superior to any of the others. That the House is elected and the other two appointed is irrelevant under the constitution. The House of Commons is composed of 308 Members of Parliament elected by Canadians and who sit in Parliament identified as supporters of the government, the loyal Opposition, one of the other political parties or as independents. In the Commons, all members are equal though their roles may differ.


• The prime minister and cabinet are never mentioned in the constitution Constitutionally, Canada is governed on a day-to-day basis by the Governor in Council, i.e. the Governor General acting on the advice of the Privy Council of Canada. The Privy Council is composed of persons appointed by the Governor General, including, but not limited to, those who have taken oaths to manage departments of government as Cabinet ministers. Privy Councillors hold office for life and may include provincial premiers, judges and members of the Opposition in the House of Commons.


• The entire Privy Council seldom meets as one body (it would be interesting in the current situation, if the Governor General summoned the full Council for advice). On a day to day basis it meets in what could best be described as “executive committee” or Cabinet chaired by the prime minister (who, to my recollection, has never been President of the Privy Council.


• the power to spend money rests with the Governor General in Council. If Parliament (Commons and Senate) is in session, new spending must be approved by Parliament, but, if Parliament is not in session, the Governor General in Council may carry-on spending for up to a year. For anyone interested in further research, the spending approval process is known as voting supply.


• Because of its high public profile, too many Canadians think Cabinet is the Government. They (and, dare I say Stephen Harper) are wrong. The Government of Canada is the Governor General, the Senate and the House of Commons.


• Canadians have never elected a prime minister and cannot do so as the job doesn’t exist in the constitution or electoral law. Canadians elected 308 Members of Parliament to sit in the House of Commons. Stephen Harper boldly claims Canadians elected him prime minister a few weeks and only a general election can change that. He is either ignorant or deliberately misleading Canadians; he is decidedly wrong.


• by tradition, the Governor General asks the person believed to enjoy the support of the majority of members of the House of Commons as her/his principal advisor, i.e. prime minister. This person will usually, but does not have to, be the leader of the political party with the plurality or majority of seats in the House. The prime minister does not have to be a member of Parliament Commons or Senate); the office is defined nowhere in law.


• on rare occasions, such as now, the Governor General may conclude that someone other that the leader of the party with the plurality of seats in the House of Commons is most likely to enjoy the support of the majority of its members and, I would argue, must give that person an opportunity to demonstrate, or not, that ability.


• if, having been chosen prime minister, a person loses majority support in the Commons - loss of confidence - the Governor General may choose to invite someone else to attempt to demonstrate (s)he has such support OR dismiss the Commons and call a general election. There is no prescription for how many days or weeks or months must have transpired since the previous election to guide the Governor General in this choice. If it is, or becomes obvious, that no one enjoys majority support of the members of the Commons, then a general election is the sole reasonable choice although it would be possible to delay that decision for up to a year without Parliament being called into session.

• Parliament may meet in one or more Sessions between elections. Each session begins with a Speech from the Throne in which the Governor General outlines the government’s legislative agenda, i.e. the laws Parliament will be asked to debate approve. Parliament must meet in Session at least once a year. A decision to terminate (prorogue) a Session of Parliament is the prerogative of the Governor General. In Canada, the Governor General has never rejected advice to prorogue Parliament but may do so if the advice is deemed ingenuous.

• So where are we when we have a prime minister who claims to have the support of the majority of members of the House of Commons but, apparently does not and we have another member of the Commons who claims to have the support of such a majority? The prime minister’s claim can be tested on a direct vote of the House of Commons, i.e. a confidence vote, yay or nay, OR on a vote regarding spending approval OR on a matter of fundamental policy. If Parliament is in Session and the government needs to spend money it must get Parliament’s approval. The only way to avoid a test of confidence on a supply vote is to prorogue, or dismiss, Parliament, with the consent of the Governor General. In theory, a prime minister could avoid a confidence test for up to a year, although the political consequences at the next election surely would be annihilation.

I expect a tug-of-war, over the next 3-5 days, for the minds and hearts of Canadians, in an attempt to influence the Governor General. The Conservative government will argue Canadians elected it, ignoring the 63% who voted for someone else and those who declined to vote because they didn’t support any of the candidates. The proposed Liberal, NDP and Bloc Québecois collaborative government in waiting will claim it has an agreement and plan to provide stable and effective government for at least 18 months. Its claim cannot be verified whereas the Conservative government’s claim is demonstrably false.

If Stephen Harper allows a vote of confidence or supply to proceed he will almost certainly be repudiated. He can gamble that the Governor General will accept his recommendation for a new election and stay in office until its outcome is decided. The odds on getting an election are not in his favour but Harper’s disdain for the Constitution and the allocation of powers to the Commons, Senate and Supreme Court (not to mention the division of powers with the provinces) is the hallmark of his political career. I am not convinced he accepts these realities even yet. H would take that course at his peril.
Alternatively, Harper can attempt to prorogue Parliament and avoid a confidence vote for weeks or months. Given the lack of precedent for the Governor General to deny prorogation, there is a good chance she would accede to the request, but Harper would appear to be hiding from Parliament, weak and vulnerable. The choice might be more unpalatable than allowing the collaborative government to attempt to function for a period or time and hoping for its early demise and the election that would inevitably follow. But it would allow him to say in office, theoretically, until this time next year (unless he is disposed by his own partisan supporters).

What other surprises will pop-up over then next 150 hours?