An Excruciatingly Correct Aide-Memoire
Whee! It’s election time in Canada again. Last Sunday Justin Trudeau put the rumours to rest by requesting and receiving dissolution of the 43rd parliament. We head to the polls for the second time in two years on 20 September. Aside from the — you know — politics of it all, anyone who cares about Canadian history, or our system of constitutional government, knows it’s going to be a rough five weeks.
Blame the lack of civics education in this country, the fact that the press corps includes as many lazy and incompetent drudges as any other profession, or the way Canadians binge US news (absorbing the language of a very different system), but a lot of people who should know better are going to spend this election saying dumb things. These will range from errors that are merely annoying (getting terminology wrong) to such egregious misrepresentations of how things work as to amount to disinformation. And the “real journalists”, if history is any guide, will not be much better than the most uninformed chatterer on Twitter or Facebook.
This is terrible for our civic life but, rather than bitch and moan about it, I’m posting the following excruciatingly correct style guide to Canadian elections. Now, you too can be the annoying know-it-all in your friend group — erm — I mean now you too can be part of the solution!
Prime Ministers Do Not “Call” Elections
To begin, dissolving parliament to trigger an election is a crown prerogative, not something a Prime Minister can do alone. In other words, it’s one of the Sovereign’s reserve powers, exercised in Canada by the Governor General as the Crown’s representative. Thus, Prime Ministers do not “call” elections; they can only request that the Governor General dissolve parliament.
This may seem a distinction without a difference. Under the principle of responsible government the Governor General only acts upon the advice of a First Minister who holds the confidence of parliament (otherwise we could hardly call ourselves a democracy). But we’re not just splitting hairs; in exceptional circumstances the reserve powers of the Crown serve as an important check on abuses of power by partisan politicians.
A recent example is the British Columbia election of 2017. The outcome was just ambiguous enough (the governing Liberals won more seats than the NDP, but one less than the combined opposition) that Premier Christy Clark felt able to request the immediate dissolution of the provincial legislature. In effect, she wanted a do-over for the election she’d just lost. Quite properly the Lieutenant Governor refused this unconstitutional request. The loss of her majority meant Clarke no longer held confidence in the legislature, there had been a recent election to determine the wishes of the electorate (six months is the accepted norm here), and an alternate government was available in the form of an NDP/Green coalition. Her desperate gamble having failed, Clark resigned (as a First Minister whose advice had been refused by the Crown, she could hardly do otherwise) and the NDP/Green coalition went on to form a government. In the oft-used metaphor, the Crown had acted as a “constitutional fire-extinguisher”.
Every healthy democracy makes a distinction between the authority and legitimacy of the nation state, which is permanent and unchanging, and the actual exercise of state power through an elected government, which is temporary and subject to electoral defeat. This is the distinction between Head of State (for us, the monarch) and the Head of Government (the Prime Minister).
To personify the state (effectively to provide an agent for its actions in the real world) republics elect presidents as their heads of state. In constitutional monarchies, such as ours, the Sovereign personifies the state. Either way, the separation between the source of state power, and those who exercise it, prevents either entity from wielding an unrestricted and potentially tyrannical authority. Sloppily attributing Crown powers to the Prime Minister, merely because it is he or she who normally exercises them, dangerously misrepresents this.
Note: arguably, a constitutional monarchy provides an almost ideal solution for the division of state power. The democratically elected legislature is supreme in governance (that’s what the “constitutional” part guarantees) while having a hereditary sovereign as head of state keeps the office non-partisan and apolitical. The United States takes almost the exact opposite approach with an elected president who is not merely a figurehead (as in many republics) but who combines the offices of head of state and head of government in a single figure.
Another Note: other crown prerogatives include appointing Prime Ministers (which is crucial to government formation — see below) and enacting laws (which is why bills become laws only when they receive royal assent).
We Still Have a Government
In a cack-handed attempt at “objectivity”, the Canadian press has a bad habit of not referring to the Prime Minister as such after the election starts; he’s referred to as the party leader. This creates a false impression that we don’t have a government once the writs are issued. In fact, Prime Ministers do not resign when they request dissolution; throughout the election Justin Trudeau remains Prime Minister, and his ministry will continue to function as the government of Canada. The only thing he cannot do is pass new legislation, which would require parliament be sitting.
And yet, even accredited journalists have already asked Justin Trudeau who is in charge to deal with the tragedy in Afghanistan that began almost simultaneously with his election announcement. His answer was, of course, “I am” (the CBC — our “national” broadcaster is terrible about stuff like this). Unfortunately, even those who should know better, often don’t. Annamie Paul, leader of the Green Party, has called for parliament to be recalled under the Emergency Powers Act for an emergency debate in the House of Commons about Afghanistan.
Where to begin… A parliament that has been dissolved cannot be recalled — it no longer exists. The Emergency Powers act does not apply to emergencies outside of Canada. And an emergency debate is nothing more than an opportunity to make speeches, which Paul can do from the hustings. Whether Paul is actually this uninformed, or merely posturing, it’s unfortunate that ignorance of basic civics in this country can cause so much confusion and unnecessary handwringing about our ability to govern ourself during an election.
Admittedly there is a “caretaker convention” which holds that (for obvious reasons) governments should not undertake major new initiatives during an election. Opponents of the government often claim this prevents it from doing anything they don’t want it to do. But the caretaker convention is a convention rather than a law precisely so it can be interpreted flexibly enough for the government to deal with the unexpected.
Finally, if the Liberals win enough seats to continue governing, Trudeau will not be “re-elected”, or even re-appointed as Prime Minister. Since he never resigned, his current appointment as Prime Minister will merely continue into his third parliament (Canada’s 44th).
The Governor General Will Not “Drop the Writ”
Speaking of writs, it’s often said that an election begins with the Governor General “dropping the writ”. In actuality, the Governor General merely dissolves parliament. The resulting election is conducted by Elections Canada, an independent federal agency headed by the Chief Electoral Officer of Canada. It is the Chief Electoral Officer who issues the writs (all 338 of them) to conduct elections in the 338 electoral districts (or “ridings”) that make up the House of Commons. Technically, then, we are about to have not one election, but 338.
We Do Not Elect Prime Ministers (Nor Governments)
Saying that we’re about to have 338 simultaneous elections is another one of those persnickety details that may seem unimportant in practical terms, but actually says something important. We cast our vote in local elections for Members of Parliament to represent our ridings. Even the electors in Justin Trudeau’s riding of Papineau will only be voting for their local MP on 20 September. What our elections do is determine the composition of the House of Commons (parliament’s elected lower house). We elect neither Prime Ministers nor governments.
Certainly, many Canadians will vote for an MP based on his or her party affiliation — because they want that party to “win”. But this distinction still matters to an understanding of how government formation works.
Governments are formed in the House of Commons after the writs are returned with the election results and the new distribution of seats is established. The essential consideration is that any government must be able to hold the confidence of the house. That is, it must be able to muster enough votes to pass bills (otherwise it couldn’t function). By convention, all supply (money) bills are confidence votes and losing one will bring down a government.
If an existing government returns with a majority, or even a plurality of seats, it retains confidence and thus stays in power. There is no need to form a new government (remember that the government never resigned or ceased to exist during the election). Otherwise, a new party (or coalition) that wins either a majority, or the greatest number of seats short of a majority, is the strongest candidate to form government. The Governor General appoints the leader of this party or coalition as Prime Minister. And the new Prime Minister can then forms a government by appointing a cabinet of ministers.
Side Note: As our governments consist of a cabinet within the legislature, that cabinet is sometimes referred to as “the executive” though this Americanism isn’t an exact fit and is also used to describe the Crown (or the Cabinet plus the civil service).
Another Side Note: Since we don’t elect them, a new Prime Minister is obviously not a “Prime Minister Elect” during the period between the announcement of their appointment and their swearing in. “Prime Minister Designate” is a better term.
Yet Another Side Note: A reminder that Justin Trudeau is already Prime Minister and has not resigned. If he “wins” the election (that is, wins enough seats to continue governing) he will not be re-elected Prime Minister nor will he be the “Prime Minister Designate”. He will merely continue his appointment into a new parliament.
Trudeau Has Not Served “Two Terms”
“Term” implies a fixed period for an appointment or institution, and so its use is appropriate in the United States, where there are fixed election dates and governments serve for a fixed period to time. However, it doesn’t apply in our parliamentary system, where we neither elect governments, nor do they sit for a fixed period after formation.
As noted above, our governments are formed and maintained based on confidence. A lost confidence vote can bring a government down at any time, and a Prime Ministers who no longer finds parliament functional can request dissolution whenever they feel the need, the need for speed — er — no, the need for an election. Thus, governments in Canada do not serve for any sort of fixed term. A better word is “parliament”, as in: “a government that has won two elections has been in power for two parliaments” (Trudeau’s current count).
Side Note: another Americanism that serves as a useful test of civic literacy is “administration.” In the United States this is often used as a synonym for “government” (as in, “the Obama Administration”). It’s appropriate there because so many senior positions in the US civil service are political appointments. In Canada we have a permanent civil service that serves from government to government (even Deputy Ministers, the civil service department heads who act as the professional advisor to their Minister, often retain their appointments through a change of government). So, any commentator who refers to a Canadian government as an “administration” is helpfully revealing their ignorance. It’s better to just say “government” or, since our governments are made up of a cabinet of ministers, “ministry” (as in, “the Trudeau ministry”).
This Election is not Illegal Under the Fixed Term Law
There has been a fair bit of chatter about whether the current election is even legal under Canada’s fixed term legislation. In 2007 Stephen Harper introduced Bill C-16, an amendment to the Canada Elections Act which set a fixed election date in October for federal elections and a set term of four years. This was sold as a democratic reform, at the time of its passage, as it would stop Prime Ministers gaming our system by requesting dissolution when it was advantageous for them.
Such legislation is currently quite popular: the UK and several Canadian provinces also have some form of fixed term legislation. I believe this is due to fixed terms being a simple and easy form of legislation to pass without amending the constitution. In actuality, the whole concept of fixed terms is alien to our parliamentary system.
The UK gave its Fixed-term Parliaments Act real teeth and the result was a constitutional crisis when Boris Johnson lost a possible confidence vote. This went to the courts to decide whether the confidence convention was triggered and, if so, whether his ministry should fall or continue to the end of its term. If the fixed term did have precedence over the confidence convention, it would call into question whether the reserve power of the Crown to dissolve parliament even still existed. The unintended consequences of the act were so disruptive and potentially profound that the House of Lords is currently conducting an inquiry into the whole mess (at which our own Philippe Lagassé testified).
Fortunately, Canada’s fixed term act was passed mainly for show and is so toothless that most legal experts think its only effect is to put a four year limit on the life of parliaments. (One less than the maximum of five years set by Section 50 of the constitution). Thus, when Trudeau found the current minority parliament difficult sledding, his right to request dissolution was unaffected.
As more than six months had passed since the previous election (see above), and he held confidence in the house, the Governor General was bound to grant this request. In a shameless political stunt, the leaders of the Conservative Party and the NDP (who had used their combined majority to obstruct the government while strategically not voting against confidence motions) promptly called upon Her Excellency Mary Simon to refuse dissolution. In doing so they were urging the representative of an unelected Sovereign to act unconstitutionally (a profoundly undemocratic act) and ignoring the basic fact that a Prime Minister whose advice is refused by the Crown is bound to resign — which would trigger the election they claimed to be trying to stop!
Thus, this early election is neither unconstitutional nor an abuse of Prime Ministerial power. If Justin Trudeau has taken unfair advantage to game the timing of the election, it is the job of voters, not the Crown, to punish him for it. Which is precisely what elections are for…
Sources
I hope you found the above useful and even interesting. As a layperson I’ve relied heavily on the knowledge of real constitutional experts. Here are links to the best and of these:
- Philipe Lagassé: is perhaps our pre-eminent constitutional expert in crown and defence matters. He contributes frequently to journals and maintains a blog at: https://lagassep.com.
- Emmet Macfarlane: is a professor at the University of Waterloo in constitutional law, and is active (and robustly opinionated) on Twitter as @ EmmMacfarlane; he also maintains a blog at: http://www.emmettmacfarlane.com.
- Dale Smith: is a veteran Ottawa journalist — far and away the most knowledgeable I’ve found on constitutional matters and how government works generally. He’s active on Twitter as @ journo_dale, has a personal blog at https://www.routineproceedings.com, and publishes regularly with https://looniepolitics.com.
