Everywhere in Canada, election night now produces a television extravaganza, with the commentariat out in full force. The next day newspapers chime in with their reporting, as the country wakes up to further analysis of what has happened and what the future might bring. From the vice-regal perspective, however, the path to be followed after every election is always clear and always the same: the conventions of responsible government must be respected and politics eschewed. The vice-regal representative is the protector of the Constitution and not a political actor: the job is to follow convention, stay away from party strife, and maintain the legitimacy of the office. This article looks at the conventions and how they have worked in various examples over the years.
In our Canadian democratic system, the electorate ultimately decides matters – but indirectly through elected members, and there can be surprising outcomes. We have a government and a premier or prime minister while an election campaign is in progress, and the “term” of a premier or prime minister is from the date of swearing in until the date of leaving office, a period that can cover several elections and legislatures (both realities are often forgotten).
If a general election in a province or in the country as a whole produces a legislative majority for the governing party, the administration of the day simply carries on in office (that is what happened nationally after May 2, 2011). If, following a general election, no party commands a legislative majority, a number of possibilities present themselves, and in these circumstances the vice-regal representative may be called upon to act – not politically but constitutionally, in accordance with the conventions of responsible government.
What are those conventions? One is that the vice-regal representative has one adviser at a time (the prime minister in Ottawa and the premier in a provincial capital) and, except when the maintenance of responsible government itself is at stake, follows the advice of that individual. Another is that for a government to hold office it must have the confidence of the elected chamber, the House of Commons in Ottawa or the legislature of a province. Confidence means majority support on crucial matters, supply (money bills) being the leading example. If there is doubt about the government’s standing with a newly elected house, it must either resign or demonstrate confidence forthwith. If after an election a government that previously commanded a legislative majority finds itself in a minority position (including being behind in party standings), the prime minister or premier may choose to resign or, if the opposition forces are divided, meet the new house and test the government’s strength. If the government is sustained by the newly elected body, it can carry on. Alternatively, if it is immediately defeated on a confidence vote, it has no choice but to resign and give way to another administration, assuming one can be formed (one can imagine a second election being immediately necessary but this seems most unlikely).
Who should govern is a matter for politicians to sort out, though an administration could not carry on simply by avoiding meeting a newly elected house. If the existing government has to go, the vice-regal representative acts when it is clear who can successfully govern – that is to say, win votes of confidence. In all likelihood, following a Canadian election this will be whoever can unite opposition groups into a governing majority. But there is no guarantee that a governing party that commands the largest number of seats but not a majority will go on governing. For emergencies, the vice-regal representative retains an unspecified reserve power to deal with those situations – very few and very far between – that cannot be dealt with through the simple, well known, and accepted conventions of responsible government.
Examples from Abroad
In recent times the most striking example of the latter came in 1967 when, on December 17, Prime Minister Harold Holt of Australia went swimming on a favourite beach and was never seen again. His remains were not found and he was probably a victim of drowning (though there have been many wild theories). On December 19 the government of Australia announced that Holt was presumed dead, whereupon Governor General Lord Casey appointed Deputy Prime Minister John McEwan as first minister. Constitutionally, the totally unexpected was dealt with smoothly and efficiently. In Canada, at the federal level, a list, in rank order, of ministers who would assume the prime minister’s duties in the event of incapacity is now published and updated periodically by the Privy Council Office. At the provincial level, the position of deputy premier may meet the same need, thereby ensuring a smooth transition if required.
Recent events in the United Kingdom have highlighted to advantage what can happen in that country after the election of what the British call a “hung parliament.” Following the general election of May 6, 2010, which did not produce a majority for any party but put the governing Labour Party in second place in members elected, there was an intense round of negotiations in which senior public servants played a facilitating role. This eventually produced an agreement between the Conservatives and Liberal Democrats. While this agreement was in the making, Prime Minister Gordon Brown made a clear distinction between his political role as leader of the Labour Party and his constitutional role as prime minister. Wearing his political hat, he held out the possibility of a Labour/Liberal Democrat arrangement to govern the country. In his constitutional role, he understood that agreement between the other parties would mean an immediate change of government. When the Conservatives and Liberal Democrats reached such an agreement, he immediately left 10 Downing St., and the Conservative leader, David Cameron, soon arrived there. The role of the Crown in all this was symbolic: the politicians sorted matters out, and David Cameron became prime minister by going to Buckingham Palace and accepting the Queen’s invitation to form a government. The Queen gave legitimacy to what the politicians had worked out among themselves and her action was unchallenged.
The most famous case involving vice-regal discretion is linked to the career of Prime Minister William Lyon Mackenzie King, whose name by definition looms large in any discussion of the conventions of responsible government. In 1919 King became leader of the Liberal Party and in 1921 became the first prime minister to lead a minority government. Thanks to continuing support of Progressive members (he called them Liberals in a hurry) all went well for him until 1925, when his party suffered a serious reverse in the general election held on October 29 (Conservatives, 116; Liberals, 99; Progressives, 24; others, 6). Included in the fallen on the government side were eight cabinet ministers and the prime minister himself, who was defeated in North York (Ontario). Given this outcome, one might expect the prime minister to have had nothing on his mind the next day but election results, but in fact his diary entry for October 30 begins with a reflection on news from his fortune teller in Kingston (Mrs. Bleaney) about the meaning of a recent dream (whoever said the study of Canadian constitutional history was dull?).
At 6 p.m. the same day, the prime minister went along to see the Governor General, Viscount Byng of Vimy. After a polite tea involving Lady Byng and other members of the household – “the talk was of the weather, the cold, of gardens, etc.,” – the Governor General and the prime minister repaired to the library for the first of a series of discussions about the next step constitutionally.1 In the back and forth that followed over the next few days, Byng urged King to give way to a Conservative government but the prime minister, backed by the cabinet (and prominent constitutional lawyer and close adviser J.S. Ewart), decided to meet Parliament and let it decide who should govern. Throughout his discussions with Byng, King argued that whatever the Governor General might think privately, “in a public way…he was bound by the advice of his Ministers.”2 Ewart told the prime minister that Byng “had no right to express an opinion” or to ask the prime minister “to do anything.”3 It was for King “to acquaint him with the general political situation” and “to tender him advice if requested.” In the same spirit, King told the Governor General that it would be “unwise” for them to correspond about present business and that there must be “complete confidence” between them.4 As Governor General, he mused, Byng could have “no opinions.”5 This position was supported by cabinet, where King found “great indignation that the Governor General should have any views.”6
King got his way, though to satisfy the Governor General he issued a carefully drafted news release. On the crucial matter of who had the right to govern in existing circumstances, King had this to say:
With respect to the leader of the political party having the largest definite following in the House of Commons being called upon to form an Administration, the Cabinet holds the view that responsible self-government in Canada rests upon the principle that the majority are entitled to govern, the majority so understood meaning, not the political party or group having the largest number of members, but the majority as determined by the duly elected representatives of the people in Parliament.…I am not aware of any precedent in Great Britain or in Canada for recommending, before Parliament meets, that the leader of a party not commanding a clear majority in the House of Commons should be called upon to form a Government
To summon Parliament and to allow the House of Commons to disclose its attitude upon division is the procedure warranted by constitutional precedent and by the present circumstances. To take any other course would be to fail to recognize the supreme right of the people to govern themselves in the manner which the Constitution has provided, namely, expressing their will through their duly elected representatives in Parliament and in accordance with recognized Parliamentary practice.7
Act 2 of this political and constitutional drama started when the newly elected House of Commons began sitting on January 8, 1926. During this act, the private difference between the Governor General and his prime minister that had manifested itself immediately after the 1925 election became a public issue.8 In short, actions of the Governor General became a matter of political debate. Not surprisingly, the Conservative opposition, with more seats than the governing Liberals, looked for every opportunity to bring King’s government down – that is to say, defeat it on a matter of confidence. When, eventually, the government faced imminent defeat, King made three separate requests for dissolution. In one of the most celebrated actions ever taken by a Governor General, Byng refused his prime minister, whereupon King resigned from office on June 28, 1926.
Conservative leader Arthur Meighen became prime minister the next day but, in the early hours of July 2, the new government was defeated by one vote on a confidence motion (a Manitoba Progressive member, said to have just woken up, voted against the government despite being paired with another Progressive MP who favoured the Tories). Meighen then requested a dissolution, which was granted. In the campaign that followed, leading up to the general election of September 14, 1926, King argued that the Governor General had acted unconstitutionally by refusing his own request for dissolution and that Prime Minister Meighen had acted improperly in forming a government under these circumstances. In the event, King‘s Liberals carried the day, winning 128 of 245 seats in the House of Commons; the Conservatives won 91, the Progressives 20, and others 6. On September 25 King again became prime minister and three days later Lord Byng exited Ottawa. Now leading a majority government, King, who never let a slight pass, subsequently noted that he did not receive a Christmas card from the Byngs in 1926.9
Since these seminal events of 1925-26 – described by one scholar as the Rosetta Stone of the Canadian constitution: that is to say, events that facilitate the deciphering of all subsequent events – no Governor General has ever refused the advice of a prime minister to dissolve Parliament. Nor, as we now all well know, has any Governor General refused the advice of a prime minister to prorogue Parliament. Nor has government changed hands between parties during the life of what we call a minority Parliament. These were elected in 1957, 1962, 1963, 1965, 1972, 1979, 2004, 2006, and 2008.
What happened constitutionally after each of them? In the election of 1957 the Liberals, having been in power since 1935, fell into second place in seats, though leading in the popular vote. Following the election, a couple of Prime Minister Louis St. Laurent’s ministers urged him to meet Parliament and seek a vote of confidence. Backed by the cabinet as a whole, however, St. Laurent decided to resign and make way for Progressive Conservative leader John Diefenbaker to form a government. Once the service vote was in (this completed the election results), power changed hands on June 21, the date chosen by Diefenbaker. The diehard Jimmy Gardiner of Saskatchewan, who had wanted St. Laurent to meet Parliament, long complained that, “for the first time we have a government which came into being when the House was not in session without being able to demonstrate that it had the support either of the greatest number of votes for its supporters, or the support of a majority of those elected to the House of Commons.”10 The Governor General’s role in all this was to accept the resignation of one prime minister and appoint another.
When another election was held in 1958 (the Liberals were now led by Lester Pearson), the Progressive Conservatives won a big parliamentary majority, but after the 1962 election they found themselves again in a minority position. The government carried on but suffered another setback in the election of 1963; this time the Liberals won the largest number of seats of any party but not a majority. On election night, Diefenbaker said on television that the results reminded him of the outcome of the 1925 election when Mackenzie King “had decided, as was his right, to meet Parliament on the basis that no party had a majority.”11 Pressed by close associates, however, Diefenbaker accepted that resignation was in the cards, but he made no public statement about this, saying only that he would “watch eventualities.”12 Matters came to a head when, on April 12, “six Créditiste MPs delivered a sworn affidavit to the Governor General and to Pearson declaring that the Liberal Party had the right to form the next government and promising their voting support to that government.”13 With the Liberals thus positioned to win the confidence of the House, Diefenbaker resigned and was succeeded as prime minister by Pearson. Again, the role of the Governor General was to accept the resignation of one prime minister and swear in another – after the politicians had sorted matters out among themselves.
Following the 1965 election, which saw the Liberals increase their number of seats but not get a majority, Pearson carried on in office and was succeeded, on April 20, 1968, by Pierre Elliott Trudeau, who then led the Liberals to a majority in the election held on June 25, 1968. When the election of 1972 put the Liberals back into a minority position and saw the defeat of four ministers, three members of cabinet, most notably John Turner, favoured resignation.14 Progressive Conservative leader Robert Stanfield now claimed the right to form a government, but Prime Minister Trudeau, whose party had the largest number of seats and the benefit of having led the popular vote, carried on and, thanks to New Democratic Party (NDP) support, was able to win confidence votes in the new Parliament. In the election held on July 8, 1974 the Liberals regained a majority.
When the Progressive Conservatives under Joe Clark won the largest number of seats, but not a majority, in the general election of May 22, 1979, Trudeau advised Governor General Ed Schreyer to call on the Conservative leader to form a government. Clark was then sworn into office, on June 4. When the new government lost a budget vote (specifically framed as a confidence test) on December 13, the Parliament elected in 1979 was dissolved and another general election held, on February 18, 1980. This time the Liberals were returned with a majority and, on March 3, 1980, Trudeau, who as leader of the opposition had been planning to leave politics, again became prime minister.
A series of other majority governments followed, but in the election of June 28, 2004 the Liberal government of Paul Martin, who had succeeded Jean Chrétien as prime minister on December 12, 2003, won the largest number of seats of any party but not a majority. Prime Minister Martin’s government carried on and won votes of confidence in the new Parliament, but when the next election, held on January 23, 2006, put the Liberals in second place in seats won, Martin resigned and, on February 6, was succeeded as prime minister by the present holder of that office, Stephen Harper. In the federal election held on October 14, 2008, the Conservatives increased their seat total, but the government remained in a minority position in Parliament. Prime Minister Harper carried on in the office of first minister and met the new Parliament successfully, winning a confidence vote – on the address in reply to the Speech from the Throne – on November 27, 2008, immediately after the reading of the economic statement that triggered a failed coalition understanding among the three opposition parties. The timing of this crucial vote was duly noted in a government news release issued the following day, which quoted Government House Leader Jay Hill as follows: “Acceptance by the House of Commons of a Speech from the Throne is an expression of confidence in the government.…I am pleased that the House endorsed our government’s general program, particularly with full knowledge of the content of the Economic and Fiscal update. Yesterday’s vote and today’s motion to communicate with the Governor General accepting her Speech are crucial demonstrations of Parliament’s affirmation of our newly re-elected government.”15 Prime Minister Harper eventually served longer at the head of a minority government than any other Canadian first minister. Now, of course, his party enjoys majority support in the House of Commons.
It follows from the above, the events of 2008 in particular – i.e., the coalition agreement and the subsequent party controversy over coalition – that if we elect a Parliament in which no party has a majority and the government decides to stay on, the opposition forces seemingly have but one chance to effect a change in administration: before the new Parliament votes confidence in the government (unless, of course, – this is unlikely – a prime minister whose government has enjoyed confidence for a time recommends to the Governor General that a different party administration be formed). A prime minister who has governed successfully during the life of a Parliament – that is to say, has enjoyed confidence, no matter how briefly (this, surely, was the meaning of Jay Hill’s statement of November 28, 2008) – has the weapon of dissolution in his arsenal.
By convention, the advice of a prime minister to dissolve Parliament, as with all prime ministerial advice (other than advice that is illegal), must be accepted by the Governor General. For a vice-regal representative not to do this but set out on his or her own to find another prime minister would be to venture onto the slippery ground of politics (the very place where the representative of the Crown must not go, multiple urgings by academics, pundits, and assorted other experts to the contrary). Recently, there has been much speculation in Canada about how long a government must govern successfully – though nobody can put a minimum time on it – before a sitting prime minister’s advice to dissolve has to be accepted by the Governor General. Arguably, the advice of a prime minister who has successfully won a single confidence vote in a new Parliament must be honoured in relation to dissolution. To act otherwise would be to go into politics and risk a constitutional crisis. The vice-regal representative can never go wrong by putting the final decision about who should govern into the hands of the democratic electorate, which is where, by definition, dissolution puts it.
Since 1867 there have been dozens of provincial general elections, but the aftermaths of some stand out for the instructive examples they offer of the conventions of responsible government in operation. Events following the Manitoba election of 1922 are a striking case in point: John Bracken became premier of the province after an election in which he had not been a candidate and in which he had not even voted (it would be hard to find a better example of the remarkable simplicity and flexibility of our constitutional order). Following an electoral upset, the winning but leaderless politicians sorted matters out; Bracken was recruited by them to be premier, and Lieutenant-Governor Sir James Albert Manning Aikins then swore in a cabinet that commanded majority support in the newly elected legislature – that is to say, had the confidence of that body. Though politics had taken an unusual and unexpected course, the Constitution was equal to the occasion – and the lieutenant-governor had stood above the political fray. This is the norm.
The example of what happened in Ontario after that province’s 1985 election is also most instructive about how our constitutional system works. On February 8 of that year Industry and Trade Minister Frank Miller, the MPP for Muskoka, succeeded William Grenville Davis as premier of the province. At the time, the Progressive Conservatives had been in office continuously since 1943, but when the new government went to the polls on May 2, its future was put in jeopardy. The result in seats of the election was as follows: Conservative, 52; Liberal, 48; NDP, 25.16 By contrast, the popular vote was split as follows: Liberal, 37.9%; Conservative, 37.0%; NDP, 23.8%; others, 1.3%.
Following the election, private meetings took place between the Conservatives and the NDP and the Liberals and the NDP to determine who would support whom. The eventual outcome of these negotiations was an “accord,” made public on May 28, between the Liberals, led by David Peterson, and the NDP, led by Bob Rae. This committed the two parties to a legislative reform program, with the Liberals forming the government and the NDP agreeing “that for a period of two years it would neither move nor vote non-confidence in the government.”17 For their part, the Liberals “promised not to seek a dissolution unless defeated by a specifically framed want of confidence motion.”18 Despite all this, the Miller government carried on, and on June 4, the new Legislature met and heard Lieutenant-Governor John Black Aird read the Speech from the Throne. The Conservatives had already promised a budget speech on June 25, but the immediate business was the address in reply to the Speech from the Throne. Debate on this went on for eight days and ended on June18 with the passage, by 72 votes to 52, of a motion of non-confidence in the government. The next day Premier Miller saw the lieutenant-governor and gave him a letter of resignation in which he advised thus: “It would appear that the Honorable Leader of the Opposition is able to gain the confidence of the House at this time.”19
The same day Lieutenant-Governor Aird issued a statement of his own about the formation of a new government, as follows:
In my capacity as Lieutenant-Governor of Ontario and as the representative of Her Majesty the Queen in Ontario, I have this day asked Mr. David Peterson to form a government, he having assured me that he can form a government which will have the confidence of the Legislative Assembly for a reasonable length of time.
On the advice of counsel with whose opinions I agree, I have advised Mr. Peterson that the agreement between the Liberal Party and the New Democratic Party, a copy of which had been delivered to me, has no legal force or effect and that it should be considered solely as a joint political statement of intent and that the agreement cannot affect or impair the powers or privileges of the Lieutenant-Governor of Ontario nor of the members of the Legislative Assembly.20
Finally, on June 26, in a public ceremony held on the front lawn of the legislature and witnessed by thousands, the new premier and his ministers were sworn into office. Government had changed hands in Ontario according to the conventions of responsible government, with confidence being the deciding factor and the lieutenant-governor playing his part after the politicians had sorted matters out.
Correctly, Lieutenant-Governor Aird refused interviews about his decision to call on David Peterson to form a government, but when asked whether history would “treat him kindly” had this to say: “I don’t know whether history will or not. I think one does one’s best at all times and that’s the standard I’ve always tried to apply. Let the historians decide.”21 His discretion was admirable and in fact his actions, which accorded perfectly with the conventions of responsible government, went unchallenged. Trust is at the heart of the relationship of the vice-regal representative and a premier or prime minister and, as Mackenzie King had so clearly pointed out in 1925, this requires confidentiality. What the premier or prime minister says to the vice-regal representative stays with the vice-regal representative and vice versa. That is not always an easy fit with today’s 24/7 news cycle but it is crucial nonetheless.
Recently, some have advocated that the Governor General should give statements of reasons for decisions made in relation to prorogation and dissolution using the prerogative powers of the Crown. The present practice of confidentiality, it has been argued, “is inconsistent with the ‘culture of justification’ that has emerged as a key constitutional value in Canada.”22 But Professor Robert E. Hawkins of the Johnson-Shoyama Graduate School of Public Policy, University of Regina, has made a powerful case for the view that wide-ranging statements of reasons of the sort envisaged would “inevitably draw the governor general into the political fray.”23 “The role of the governor general,” he writes, is “unique” and the constitution “contemplates neither the politicization, nor the judicialization, of that role.”24 Lieutenant-Governor Aird’s 1985 public statement, of course, stayed within the letter of existing conventions about the operation of responsible government. He accepted the resignation of Premier Miller, swore in a premier who could command the confidence of the newly elected legislature, and made plain that a political accord had no constitutional standing.
Much can also be learned about the conventions of responsible government from events following the British Columbia election of 1952 and the Newfoundland election of 1971. In the former case, an election conducted under a new voting system (single transferable ballot), produced a result that led to complex dealings between Lieutenant-Governor Clarence Wallace and Social Credit Leader W.A.C. Bennett, who was ultimately sworn in as premier (on August 1, 1952).25 The Newfoundland election of October 28, 1971 triggered a constitutional crisis, when the Progressive Conservatives believed they had won the election but Liberal Premier Joey Smallwood, who had been in office since 1949, resisted calling the new legislature together, despite Conservative appeals to Lieutenant-Governor E. John A. Harnum that this be done.26 Eventually, Smallwood resigned after the Supreme Court of Newfoundland ruled in favour of the Conservative candidate in the riding of St. Barbe South, where a recount had been ordered but could not be completed because of missing ballots. On January 18, 1972 Frank Moores finally succeeded Smallwood as premier. The new House of Assembly then met on 1 March but was dissolved the same day. In the election that followed, on March 24, the Progressive Conservatives won a commanding majority and the good ship Terra Nova returned to even keel.
In dealing with demanding circumstances, Lieutenant-Governor Harnum was advised by Eugene Forsey, the country’s foremost constitutional expert at the time and himself a Newfoundlander. Like Lieutenant-Governor Aird, Harnum acted to the letter within the framework of responsible government and, in a highly charged political atmosphere, was never criticized for the role he played. Forsey’s successors in present-day Canada include Peter Hogg, who advised Governor General Michaëlle Jean on the issue of prorogation in 2008, and David Smith, author of the authoritative The Invisible Crown: The First Principle of Canadian Government. Citing the 1971-72 Newfoundland situation, Smith writes that “the problem of the reserve power today is not so much how to check the Crown’s use of it as how to prevent the prime minister (or premier) from abusing it” by “testing the limits of ‘responsible government.’”27
On September 1, 1939, with war approaching, Governor General Lord Tweedsmuir asked Prime Minister Mackenzie King’s advice on what he should wear at the opening of the emergency session of Parliament about to be called. Should he go in military uniform or should he wear a black morning suit? King said he “thought the Canadian people would prefer the quieter way of proceeding” – that is to say, the morning suit.28 In constitutional as much as sartorial matters, “the quieter way of proceeding” – leaving politics to the politicians – always has much to recommend it.
2 Ibid., November 3, 403.
3 Ibid., November 3, 405.
6 Ibid., November 4, 407.
7 Globe (Toronto), November 5, 1925, 2.
8 King was returned in a byelection as the member for Prince Albert, Saskatchewan.
9 H. Blair Neatby, William Lyon Mackenzie King, 1924-1932; The Lonely Heights (Toronto: University of Toronto Press, 1963), 201.
10 Norman Ward and David Smith, Jimmy Gardiner: Relentless Liberal (Toronto; University of Toronto Press, 1990), 317.
11 Denis Smith, Rogue Tory: The Life and Legend of John G. Diefenbaker (Toronto: Macfarlane Walter & Ross, 1995), 510.
14 John English, Just Watch Me: The Life of Pierre Elliott Trudeau 1968-2000 (Toronto: Alfred A. Knopf Canada, 2009), 189.
16 R.B. Byers (ed.), The Canadian Annual Review of Politics and Public Affairs 1985 (Toronto: University of Toronto Press, 1988), 268.
17 Ibid., 272.
19 Globe and Mail (Toronto), June 20, 1985, 10.
22 Lorne Sossin and Adam Dodek, “When Silence Isn’t Golden: Constitutional Conventions, Constitutional Culture, and the Governor General,” in Peter H. Russell and Lorne Sossin (eds.), Parliamentary Democracy in Crisis (Toronto: University of Toronto Press, 2009), 94.
23 In Jennifer Smith and D. Michael Jackson (eds.), The Evolving Canadian Crown (Montreal & Kingston: McGill-Queen’s University Press, 2012), 110.
25 For these events see David J. Mitchell, W.A.C. Bennett and the Rise of British Columbia (Vancouver: Douglas & McIntyre, 1983).
26 For details see my “Changing Government: the 1971-72 Newfoundland example,” Dalhousie Law Journal, 5:3 (November 1979), 631-58.
27 David Smith, The Invisible Crown: The First Principle of Canadian Government, Toronto, University of Toronto Press, 1995, p. 57.