By Michael Brown
This article was published by Folio on Oct. 22, 2019
If Prime Minister Justin Trudeau is able to work with opposition parties, either formally or informally, then the possibility of significant constitutional drama is pretty remote, at least in the short term, according to a University of Alberta constitutional law expert.
“I think Mr. Trudeau has a willing partner in the NDP to provide him with the support that he’ll need to govern, at least for a few years,” said U of A law professor Eric Adams.
He said in the Westminster Parliamentary system, Trudeau remained the prime minister whatever the election result and always had the option of taking the first shot at forming government, although constitutional tradition dictates that he would have resigned had the Conservatives won a majority.
Adams said this runs counter to assertions made by Conservative leader Andrew Sheer in the final days of the campaign, that the leader who gets the most seats should get the chance to be prime minister.
“Our system doesn’t work that way,” said Adams. “Strictly speaking, the election does not impact his status as prime minister, which is separate and apart from his position as a member of Parliament. Mr. Trudeau gets to retain his position as prime minister insofar as he can govern with the confidence of the House of Commons.”
If the numbers were flipped and the Conservatives had held a strong plurality of seats, Adams said, Trudeau might well have bowed to pressure and resigned, giving the Conservatives the chance to try to form government.
“It certainly would have been tough to govern, although perhaps not impossible,” he said.
In 1925, MacKenzie King’s Liberals suffered an election defeat at the hands of Arthur Meighen’s Conservatives, but held on to power with the support of Robert Forke’s Progressives. And though the alliance would crumble just six months into the term, then-governor general Lord Byng took the controversial step of asking Meighen to form government, which he did, for three months.
Adams said that whether a Parliament should be dissolved and a new election called or whether a new party leader is called upon to attempt to form government ultimately relies on unwritten constitutional principles guiding the decision-making of the governor general.
While many argue that Canada should go further in writing some of these principles down to avoid confusion when these moments happen, Adams notes unwritten principles may have the virtue of inherent flexibility.
“When you attempt to write them down, you can end up with a new scenario that doesn’t exactly fit what you’ve written down and that creates its own kind of uncertainty,” he said, adding unwritten principles may have an easier time evolving.
“It could be that unwritten rules are a little more responsive to the facts on the ground, and changes over time.”
Adams said the first order of business will be for the prime minister to recall the house and face the first big confidence test of any government—the passing of the throne speech.
After that, Adams explained that with the exception of budgetary measures, minority governments can and do lose votes in the House of Commons that don’t trigger a loss of confidence and a resulting election. That said, the government has the option of making any measure a matter of confidence.
“Sometimes it’s a bit of a game of chicken, with the government saying, ‘This legislation is important to us and if you don’t vote for it, we’re going to blame you for precipitating an election,’” he said.
Over the course of the most recent two federal minority governments, former prime minister Stephen Harper often dared the opposition to vote against his legislation and risk suffering the consequences of an election Canadians didn’t want, Adams said.
“At least in the short term, that kind of governing tactic has a lot of purchase for a newly elected minority government,” he explained.
“However, what always ends up happening, if history is any guide, is that at some point that game of chicken gets called and an opposition party thinks, ‘You know what, I think we’re ready for that election.’”