e Crown and Government Formation: Conventions, Practices, Customs, and Norms
Philippe Lagassé*
e Crown’s role in government formation is cepts helps us identify which constitutional rules poorly understood in Canada. As demonstrated $ rmly bind the Crown and which are more % uid by the confusion surrounding the Lieutenant and evolving. irdly, the lack of o# cial explana- Governor’s duties in the a" ermath of recent tions and transparency about the Crown’s func- elections in British Columbia, New Brunswick, tions and constitutional activities makes it dif- Prince Edward Island, and Newfoundland and $ cult to appreciate the rules that surround the Labrador, the functions of the Crown are mis- institution. While some vice-regal o# ces have represented by politicians vying for power and made e& orts to better articulate their constitu- misconstrued by commentators. ese cases also tional roles, there is a need for greater openness suggest a degree of uncertainty about the Crown’s and explanation. powers within the vice-regal o# ce themselves. ere has been a regrettable tendency to exag- My aim in this article is to o& er an analysis of gerate the Crown’s involvement in government the types of rules that surround the Crown and formation, which risks dragging the vice-regal government formation in Canada. I begin the representatives into the political arena or creat- article with a discussion of the di& erence between ing unrealistic expectations about the personal constitutional convention, practice, custom, and discretion they are able to exercise. norms. I then examine how the Crown’s role in government formation are guided by these four Misunderstandings about the Crown’s place types of rules. I conclude by recommending ways in government formation can be traced to three that vice-regal o# ces can better explain their gaps in knowledge. e $ rst is a vague com- functions and avoid confusion and controversy prehension of the foundational conventions of about their powers and personal discretion. responsible government as they pertain to the Crown. While the conventions that surround the government’s need to secure and hold the con$ - Categorizing the rules dence of the elected house of the legislature are widely recognized, the conventions that frame Constitutional conventions serve a vital purpose the relationship between a $ rst minister and the in Canada’s system of government. ey regu- Crown are not. Second, there is confusion about late the interaction between powers of the state what counts as a veritable constitutional conven- and ensure that essential constitutional prin- tion. Conventions are too o" en con% ated with ciples, such as democracy, the rule of law, and other types of rules, notably practices, customs, the separation of powers, operate within and and norms. Di& erentiating between these con- between institutions and o# ces. Although con-
Constitutional Forum constitutionnel 1 ventions have been described as the “morality of kinds of rules: practices, customs, and norms. 9 the constitution,” 1 this fails to capture their func- To di& erentiate them, it is necessary to outline tion today. Conventions are power distribution the characteristics of constitutional conventions mechanisms. 2 In some cases, conventions will and how they di& er from these other types. grant authority; in others, they will constrain actors. For instance, these binding constitutional As held by the Supreme Court of Canada, for rules ensure that the Canadian executive has a rule to be a constitutional convention, it must democratic legitimacy, through the con$ dence meet a test set out by Sir Ivor Jennings: $ rst, the conventions, 3 and that ministers are account- rule must have precedents; second, the actors able to Parliament for the a& airs of government, involved must believe that they were bound by owing to the conventions of ministerial responsi- the rule (and hence, that the actors agreed on the 10 bility. 4 Conventions also explain the Prime Min- rule); and third, the rule must exist for a reason. ister’s dominance over the executive and within Among the rules that meet these criteria are that Cabinet, 5 as well as the duties and safeguards that the Queen appoints the Governor General on the protect certain o# ces of state, such as the inde- advice of the Prime Minister, and that the Gov- pendence of the Attorney General. 6 ernor General acts on the advice of the Prime Minister when appointing the other members of 11 Constitutional conventions can be con- Cabinet. Rules that do not meet these criteria trasted with the law of the Constitution. 7 Con- are not a constitutional convention, but some- stitutional law is subject to enforcement by the thing else (Table 1). courts. Conventions, on the other hand, are only As Rodney Brazier has argued, one of these subject to judicial identi$ cation, not enforce- other categories of rules are practices. 12 ese are ment. is means that courts can recognize the rules they may become conventions but are not existence of conventions, and determine their quite there yet. Practices have a reason, usually scope and meaning, but that the onus to respect grounded in political prudence or democratic them lies with the actors that they are meant to ideals, and political actors propose and follow bind. While this lack of judicial enforcement can them with these reasons in mind. Yet, actors lead to concerns about their strength and the may not agree that they are bound by them, and ability of political actors to circumvent them, there may be disagreement about the scope and clear violations of convention are rare in Canada. application of the rule. As well, the precedents is re% ects the adaptable nature of convention. that support a practice tend to be inconsistent. Conventions are % exible, which allows them to Accordingly, practices are best seen as rules that be slightly bent when necessary and to adapt to are auditioning to become conventions. Certain new circumstances. eir inherent elasticity is practices will solidify over time and become one reason conventions are not codi$ ed into law. conventions as actors agree about what they Although conventions are o" en manipulated require and when they are binding. Others will for partisan reasons, political actors rarely com- be amended or adjusted, never gaining a solid pletely and publicly break them. enough foothold to achieve widespread agree- ment or force. Still others will be abandoned. Stating that conventions are rarely violated may strike critics as an odd statement. It is not One example is the government’s tabling of uncommon to hear accusations that politicians treaties before Parliament from 1926 to 1966, are violating convention. 8 ese charges, how- which was then abandoned by the government ever, arguably re% ect a misunderstanding of par- of Lester B. Pearson, then resumed under Prime ticular rules or mistakes about what counts as a Minister Stephen Harper. 13 Another example is veritable convention. In the latter case, the word the current, inconsistently applied, practice of ‘convention’ will be attached to another type of holding votes in the House of Commons when rule, one that does not meet the criteria for a con- the government deploys the military overseas. 14 stitutional convention. Speci$ cally, conventions ese practices share a reason, involving the can be confused with three related, but distinct, Commons in foreign policy decisions, but gov-
2 Volume 28, Number 3, 2019 Table 1: Rule characteristics
Type of Rule Present Contested or weak
Constitutional Convention Precedents Ethical imperative Acceptance and agreement Reasons
Practice Reasons Precedents Acceptance and agreement Ethical imperative
Custom Precedents Reasons Acceptance and agreement Ethical imperative
Norm Reasons Acceptance and agreement Ethical imperative Precedents
ernments have clari$ ed that they are not bind- ey serve to de$ ne what is acceptable behav- ing, and their scope is the subject of regular iour in a constitutional context, including which debate between parties. 15 actions are necessary to uphold fundamental principles. To use a sports analogy, norms refer Customs are another type of rule that can be to the imperative to play the game fairly and ethi- confused with convention. 16 In some cases, these cally. 18 ey refer to actors’ willingness to respect traditions are antiquated conventions whose rea- both the letter and the spirit of the Constitution. sons no longer hold or apply, yet they are gener- In this sense, norms are a type of meta-rule that ally respected out of habit. In other cases, customs ensure laws and other rules are followed prop- simply re% ect established ways of doing things, erly. Norms are vital for a properly functioning with no connection to a rule that rose to the level democracy, since even the most detailed and of convention. Customs are thus characterized powerful laws and conventions can be manipu- by their precedents and the tendency of actors lated by ill-intentioned actors. Indeed, given to believe that these traditions should be hon- the prominent role unwritten rules play in most oured. What they lack are clear or solid reasons. constitutional systems, norms help to ensure that One such custom is the rule that the Monarch actors behave with fairness and honour when or their representative will not enter the lower exercising their powers and authorities. e house of Parliament. is tradition dates back importance of norms is hinted at by the title of to a time when the Commons needed to protect ‘Honourable’ that ministers, and of ‘Right Hon- itself and its members from the Crown’s inter- ourable’ that prime ministers and governors gen- ference. While this tradition is still followed at eral, are granted. We expect our highest o# ce- the federal level, its rationale is no longer salient. holders to exercise their powers and authorities Customs are followed because ‘this is just how honourably. Indeed, the proper functioning of we do things,’ which means that they are usually our system depends on it. respected but can be questioned, adapted, or dis- regarded when required. Canada’s 2008 prorogation controversy provides a useful illustration of the distinction Norms are a $ nal category of rule. 17 ese between conventions and norms. By convention, are morally-binding rules of proper conduct. the Governor General prorogues Parliament on
Constitutional Forum constitutionnel 3 the advice of the Prime Minister. Unlike dissolu- unless there is a good reason to so, such as a loss tion, there are few precedents to support the argu- of con$ dence or when political actors believe ment that Crown in Canada can refuse advice that voters should be given a chance to pro- to prorogue, except in the “most exceptional nounce themselves. 28 As with prorogation, how- circumstances”. 19 When the Governor General ever, the fairness and propriety of calling an early accepted Prime Minister Harper’s advice to pro- election will o" en be in the eye of the beholder. rogue Parliament in 2008 to avoid a vote of non- Relevant precedents, moreover, will be a source con$ dence, the two actors were therefore acting of debate, with the $ xed dates being respected in in accordance with convention. What the Prime some cases and $ rst ministers calling early elec- Minister arguably failed to do, however, was act tions in others. 29 fairly and honourably. 20 According to critics, the Prime Minister abused his authority for partisan Di& erentiating between these types of rules ends, undermining the right of the Commons to provides greater clarity about what is required by exercise its judgment over his government. 21 the Constitution, what is currently considered politically prudent or democratically preferable, Defenders of the Prime Minister, on the other what is traditionally done, and what should be hand, point out that the opposition parties were done in the interests of fairness, honour, and the acting contrary to another norm, namely that spirit of the Constitution (Table 2). Applying coalitions should not be formed by parties lack- these categories to the Crown’s role in govern- ing a plurality of seats unless their intent to form ment formation, it will now be argued, improves a coalition was clearly stated during a general our understanding of the di& erent types of rules election. 22 ese di& erent interpretations further that surround vice-regal representatives in that highlight that norms are o" en contested and that process. they lack the agreement that characterize con- ventions. 23 Similarly, the precedents attached to Government formation rules and a norm are not always evident and those engaged in a normative disagreement will point to dif- the Crown ferent precedents to support their view. Hence, Contemporary government formation involves Harper’s defenders pointed out that prorogation a mix of conventions, practices, customs, and had never been refused by the Governor Gen- 24 norms. Unfortunately, heated partisan rhetoric, eral, even in controversial circumstances, and bad faith actors, and confused media commen- that coalitions were not a common practice at tary has muddied understandings of the rules in the federal level, while his critics noted that pro- each category and their interaction. Re-estab- rogation should not be used to avoid votes of 25 lishing precision within and between these cat- non-con$ dence. egories is therefore worthwhile. Similar distinctions apply to $ xed election I. Conventions date legislation in Canada. e federal Parlia- ment and provincial legislatures have passed e conventions that guide the Crown’s role laws that set a $ xed date for dissolution. ese in government formation go to the core of the statutes were meant to discourage $ rst ministers monarchical function in the Canadian Constitu- from calling elections when it best suits their tion. e reasons, precedents, and acceptance of partisan interests. 26 e existence of these laws, these conventions are deeply rooted for the most however, does not create a convention that $ rst part. ministers must respect the $ xed date, as was e $ rst set of relevant conventions focus on found in Conacher v Canada (Prime Minister) .27 the Crown and advice: Legislatures can still be dissolved earlier, at the request of the $ rst minister. Instead, in the inter- ! e " rst minister takes responsibility for the acts ests of fairness, the law implies that legislatures of the Crown, and the Crown almost always acts should not be dissolved before the $ xed date, on the advice of the " rst minister, as a result.
4 Volume 28, Number 3, 2019 Table 2: Rule essences and examples
Type of Rule Summary Example
Constitutional Convention What must be done, The government should hold constitutionally. the confi dence of the elected House.
Practice What is currently being done. The Commons votes on military deployments.
Custom What is traditionally done. The Crown does not enter the Commons.
Norms What one should do, morally. The Crown’s powers should not be abused for partisan ends.
Regarding government formation, there are absence of notable violations of this rule further two decisions where the Crown retains personal demonstrate that the Crown and $ rst ministers discretion: 1) the acceptance or rejection of a agree and understand that they are bound by it. recommendation to dissolve the legislature; 2) the appointment and dismissal of a " rst minister. e dissolution of the legislature is an excep- tion to the rule that the Crown acts on the advice e historical rationale underlying this con- of the $ rst minister, but the nature of that excep- vention was that the Crown “can do no wrong”, tion require careful elaboration. Dissolution is hence a minister would need to take responsi- granted on the recommendation of the $ rst min- bility and be held accountable for the Crown’s ister; the Crown can decline this request when action. 30 Today, the rationale further includes there is an alternative government that can hope the principle that the Crown is not involved in to secure the con$ dence of the elected house. governing, and that the $ rst minister who heads However, the discretion that the Crown has the government must therefore be responsible to refuse a dissolution does not mean that the and accountable for all acts of government and vice-regal representative has the constitutional the Crown. 31 Most importantly, the democratic authority to dissolve the legislature without the principle is such that the Crown should act on $ rst minister’s recommendation. Put di& erently, the advice of a $ rst minister who commands, or the Crown’s right to refuse a request to dissolve is seeking to secure, the con$ dence of the elected the legislature does not imply that the Crown has house. 32 the authority to trigger a dissolution on its own. e underlying rule that the Crown acts through e precedents supporting this rule are well- the $ rst minister remains. Suggestions that the established; cases where a Governor General choice to dissolve the legislature belongs to the or Lieutenant Governor has acted contrary to Crown, as was hinted at following the last elec- formal advice are quite rare and idiosyncratic. 33 tion in British Columbia, 35 are incorrect. On appointments, prorogation, and other exer- cises of Crown power that require formal advice e appointment and dismissal of the $ rst from the $ rst minister, the precedents are clear: minister is a second exception. In most cases the Crown acts on the advice and the $ rst min- where the Crown must appoint a new $ rst min- ister takes responsibility for the decision. 34 e ister, the choice will be relatively straightforward:
Constitutional Forum constitutionnel 5 the appointee will be the leader of the party who If the Crown refuses to act on the formal advice is best placed to hold the con$ dence of the elected of their " rst minister, the " rst minister should house. When a governing party changes leader, resign or be dismissed. the Crown will appoint the party’s new leader. Similarly, if a $ rst minister is incapacitated or Since the Crown almost always acts on the dies in o# ce, an order of succession among Cab- advice of a $ rst minister who takes responsibil- inet ministers, 36 or a decision among ministers ity for the acts of the Crown, it follows that there should always be a $ rst minister in place to advise or the party caucus, will determine who should 41 be appointed as a replacement. e Crown’s the Crown. e Crown must therefore appoint discretion will only come into play when a $ rst a $ rst minister when there is a vacancy. Indeed, minister resigns and it is unclear who can hold except in cases involving deaths, unanticipated the con$ dence of the house, or in very excep- resignations, or dismissals, an obvious successor tional cases when a $ rst minister has resigned will usually be identi$ ed beforehand and the time or been dismissed, an obvious successor has not between two successive $ rst ministers is kept to a been identi$ ed, and a new $ rst minister must minimum. e relevant precedents here are nega- be appointed. 37 In these cases, the Crown has a tive ones: there are no instance of a contemporary duty to appoint the individual they believe is best Canadian federal or provincial government being suited to bring stability and order to the a& airs without a $ rst minister for a signi$ cant amount of government. While the Crown may take rec- of time. e absence of interregnums between ommendations from the outgoing $ rst minister, $ rst ministerial tenures, moreover, demonstrates other ministers, senior civil servants, or personal that the relevant actors agree and understand that advisors, the vice-regal representative will be act- there must be a $ rst minister. ing with discretion in these extreme cases. e duty to have a $ rst minister to advise the Crown further explains one of the most misun- Dismissals of a $ rst minister are the ultimate derstood aspects of government formation and exercise of discretion by the Crown and should transition: that an incumbent $ rst minister has therefore only be considered in truly exceptional the right to meet the legislature to secure its con- cases, such as when a $ rst minister is incapaci- $ dence following an election, regardless of the tated, acting in clear violation of the Constitu- results. is right re% ects the legal reality that tion, undermining the stability and legitimacy $ rst ministers remain in o# ce until they resign of the government, or involved in criminality. 38 or are dismissed, 42 an arrangement that ensures Most of the time, a $ rst minister will feel pres- the Crown is never without a $ rst minister. Nor- sured to resign before the Crown is forced to dis- mally, a $ rst minister who clearly cannot secure miss them, but vice-regal discretion remains here. con$ dence will resign following an election. Yet, Precedents from Canada in the 19 th Century, the when the election has produced a hung Parlia- possibility of Lieutenant Governor David Lam ment and the incumbent might be able to nego- dismissing British Columbia Premier Vander tiate an agreement with another party, the $ rst Zalm in 1991, 39 and the 1975 dismissal of Prime minister can stay on until they lose a formal con- Minister Gough Whitlam by Governor General $ dence vote. e recent case of Premier Brian Sir John Kerr in Australia highlight the continu- Gallant’s e& ort to stay in power a" er New Bruns- ing pertinence of this exceptional authority. 40 wick’s 2019 election is an example. 43 Equally ree related conventions reinforce the $ rst set: important, there may be cases where no party can secure con$ dence. In these instances, the ! ere must be a " rst minister to advise the Crown; incumbent $ rst minister remains in place and the Crown’s " rst duty is therefore to ensure could consider recommending a dissolution. that there is a " rst minister to pro# er advice. While it might be argued that the Crown A " rst minister remains in o$ ce until the Crown should appoint the leader of the party that has accepts their resignation or they are dismissed by won the most seats following an election, this is the Crown. not what the rules dictate. Instead, the Crown
6 Volume 28, Number 3, 2019 will wait until the incumbent $ rst minister be. Equally telling, there are few evident cases resigns, either shortly a" er the election or fol- of a Canadian $ rst minister or vice-regal o# cers lowing a vote of no con$ dence. In the implau- publicly disagreeing with one another about an sible case that an incumbent $ rst minister who act of the Crown. ere may be rumours of dis- has no chance of securing con$ dence refuses agreements and negotiations behind the scenes, to meet the legislature following an election, but these are settled before a decision is formally the Crown can dismiss them and appoint a $ rst announced. 49 minister who will. Insofar as dismissal is a power of last resort, however, the Crown should almost Another convention that governs the Crown always wait for the incumbent $ rst minister to and government formation is the one most resign $ rst. would consider supreme. However, it is impor- tant to appreciate the nuances that surround it: Given that the relationship between the Crown and the $ rst minister rests on the prin- ! e " rst minister should hold the con" dence of the elected house or be aiming to secure ciple that the former acts on the advice of the con" dence. latter, Canadian convention dictates that a $ rst minister should resign or be dismissed if the Parliamentary democracy demands that the Crown rejects their advice. is rule is necessary head of government command the con$ dence to ensure that the $ rst minister takes responsibil- of the elected house of the legislature. is is ity for all acts of the Crown, and if they cannot, the reason behind this rule. When appointing a then another $ rst minister must be appointed $ rst minister, the Crown will therefore name the who can. Indeed, in the absence of this rule, vice- individual who is likeliest to secure con$ dence. regal representatives would be able to exercise a Yet there are certain caveats here. Above all, the veto power over the a& airs of government, which loss of con$ dence does not mean that a $ rst min- is counter to the foundations of responsible gov- ister will necessarily resign. Instead, a $ rst min- 44 ernment. ister will typically request a dissolution. When such a request is accepted, the Crown allows the e existence of this rule does not mean that electorate to pronounce itself and grants the $ rst there cannot be negotiations between a $ rst min- minister a chance to regain con$ dence under ister and the Crown. 45 e Crown may deliber- new legislature. When a request to dissolve the ately delay the acceptance of advice, as Michaëlle legislature is refused, the Crown believes that Jean did when she agreed to grant Prime Minis- another party leader can secure con$ dence, ter Harper a short prorogation of Parliament. 46 even if this has yet to be formally demonstrated A $ rst minister can also withdraw advice if the when the appointment is made. Given the uncer- Crown signals that it will be rejected. But when tainty that surrounds con$ dence, particularly in a $ rst minister insists, the Crown must either hung Parliaments, practices and customs have accept the advice or be prepared to name a new developed that guide when dissolution should $ rst minister. 47 Attaching this consequence to be refused, as will be discussed below. In terms a refusal of advice acts as check on vice-regals, of the con$ dence rule itself, however, the key since there will be signi$ cant scrutiny if the point is that the Crown’s role is circumscribed. Crown compels the resignation of a $ rst minister As with the $ rst convention that was discussed, if said $ rst minister has not formally lost the con- the Crown’s functions are to determine whether $ dence of the legislature. 48 e precedents sup- a dissolution is warranted when con$ dence is porting this rule found in the resignation of $ rst withheld or withdrawn, and if not, to appoint the ministers whose recommendation to dissolve the individual who is likeliest to secure it. 50 legislature has been refused. e Crown’s refusal leads to their resignation. As discussed below, a e precedents attending to this rule are vote of no con$ dence is not a su# cient condi- well-established. First ministers who lose a con- tion for a $ rst minister to resign, but a clear and $ dence vote are usually granted a dissolution. A formal refusal of advice by the Crown should recent example is the 2011 election, which took
Constitutional Forum constitutionnel 7 place a" er a vote of no con$ dence in Prime Min- is practice developed in the twentieth cen- ister Harper’s government. Harper remained tury for administrative reasons. 52 In order to give $ rst minister throughout the election and his new $ rst ministers a chance to organize their party was re-elected with a majority of seats. cabinet and policy priorities, and to give civil By contrast, when Christie Clark lost a vote of servants more time to prepare for the incoming con$ dence following the 2017 election in Brit- ministry, the Crown began commissioning new ish Columbia, she requested a dissolution and $ rst ministers to form a government before the was refused. e Lieutenant Governor appointed incumbent formally resigns and the new minis- John Horgan, the leader of the New Democratic try was sworn. e title of ‘designate’ is given to Party, who had negotiated a con$ dence and sup- the incoming $ rst minister to indicate that they ply agreement with the Green Party. Although have been commissioned by the Crown to form Clark made a number of statements that created a government, but they are not yet $ rst minister. confusion about the Lieutenant Governor’s role, Outside of vice-regal o# ces, however, the title of the Crown acted within the limits circumscribed designate is being bestowed before the Crown by convention. 51 has formally commissioned the new $ rst minis- ter. 53 is suggests that the practice may evolve In sum, the conventions that pertain to the such that the Crown’s commission is taken as a Crown and government formation are few and given. largely focused on the relationship between $ rst ministers and vice-regal representatives. Argu- During the transition period between gov- ably, what is most notable about these conven- ernments, the incumbent ministry continues tions is how they circumscribe the Crown’s role. to exercise formal authority and they would be Rather than making the Crown a prominent responsible for dealing with any crises or emer- part of the government formation process, they gencies. 54 e $ rst minister designate and their ensure that vice-regal representatives largely act transition team do not have authority to gov- as guardians of stable and legitimate government. ern yet and should not be issuing directives to the civil service. Yet, not everyone accepts these II. Practices boundaries. As seen during the transition from the Liberal to the Conservative government in Practices serve an important function. While not Ontario following the 2018 election, members rising to the level of convention, they establish of Doug Ford’s transition team appeared to be parameters that help actors navigate the pro- issuing directives before the new Premier was cesses of government formation. For the Crown sworn in, and Ontario’s Secretary to the Cabinet in particular, practices o& er useful guidelines for seems to have accepted their right to do so. 55 is vice-regal representatives in the potentially con- suggests that the practice may go beyond simply tentious settings that follow the election of a hung allowing for a smooth transition; it may evolve Parliament. Unlike conventions, however, uncer- to give new governments a say over policy before tainty and debate about precedents and what the they hold formal authority. Since the constitu- rules stipulate, and disagreements about whether tional propriety of only having one $ rst minister they are binding, make them malleable. Indeed, at a time responsible for the a& airs of govern- practices can bend quite a bit, depending on the ment is signi$ cant, however, what occurred in personalities involved. Ontario may be an anomaly tied to strong-willed partisans and pliant civil servants. A $ rst practice relates to transitions of power: A second practice deals with the limitations When an incumbent " rst minister announces on government decision-making during elec- their resignation, the Crown will commission the tions and hung Parliaments: leader of another party to form a government. During the transition period that follows, Ministers are bound by a principle of restraint the incoming " rst minister will be titled ‘" rst during elections and should not make decisions minister-designate.’ that would unduly bind another government;
8 Volume 28, Number 3, 2019 incumbent governments who are not re-elected already announced their resignation, notably with a majority of seats will be bound by this with respect to appointments, can be rejected. 60 principle until they secure the con" dence of the legislature. e principle of restraint remains a practice in Canada at this time. e $ rst minister’s ability Known colloquially as the ‘caretaker conven- to determine its scope and application has argu- tion,’ this rule is founded on the idea that gov- ably prevented it from becoming a convention. erning authority should be constrained when Yet, with the publication of guidelines outlining a parliament has been dissolved and voters are how the principle of restraint applies, and as the deciding the composition of the next legisla- rule becomes a routine part of election planning ture. While the government retains the power by senior civil servants, su# cient precedents to address emergencies and manage the routine and the agreement necessary for this practice to a& airs of the executive, ministers should not solidify into convention may materialize. make decisions that would be di# cult or impos- sible for an alternative ministry to reverse. When Another practice relates to the Crown’s inter- a governing party is re-elected with a majority of actions with parties during a hung Parliament: seats in the legislature, the principle of restraint is li" ed. Similarly, a government that is newly ! e Crown does not involve itself in negotiations appointed following an election is not bound by between political parties following elections that the principle, regardless of the composition of results in a hung Parliament; it is for the parties in the legislature to determine who governs, how the legislature, since they are assumed to be able con" dence can be maintained, and whether the to secure con$ dence if the Crown has appointed legislature is viable. their leader the $ rst minister. An incumbent government that is re-elected without a majority Several reasons underpin this practice. Above of seats, however, will be bound by the principle all, as will be discussed below under norms, the of restraint until they have won a vote of con$ - Crown is expected to remain neutral and non- dence. If an incumbent $ rst minister announces partisan, and to keep a su# cient distance from that they will resign in light of an election result, political bargaining between parties. 61 is dis- they will also be bound by this principle during tance is meant to shield the Crown from impres- the period when the incoming government pre- sions that a vice-regal representative is partial to 56 pares its transition to power. one party. Equally important, this practice leaves it with political parties to determine who and Ministers are expected to accept that they how con$ dence will be maintained in a hung are bound by the principle of restraint and senior Parliament, and whether it will be possible to civil servants will assist with the interpretation make the legislature work e& ectively despite the of what counts as routine matters of govern- absence of a majority party. Here again, keeping ment. 57 e $ rst minister, however, retains the the Crown away from these discussions serves judgment to determine which decisions are per- to protect its neutrality and minimizes instances missible. During a period of restraint, the Crown when vice-regal representatives will need to per- will still act according to the advice of the $ rst sonally judge whether a government can hold minister. But vice-regal representatives are in a con$ dence or a legislature is viable. Following stronger negotiating position in these cases. 58 the 2017 election in British Columbia, for exam- is is especially true when the incumbent gov- ple, the Lieutenant Governor kept her distance ernment’s ability to secure con$ dence is unclear, while the New Democrats and Greens negotiated or when a $ rst minister has announced their their con$ dence and supply agreement, and she resignation and a new party leader is commis- accepted John Horgan’s assurances that the legis- sioned to form a government. In these situations, lature would be viable under a New Democratic the Crown can request that the advice be delayed government, despite concerns about who would until con$ dence has been demonstrated. 59 Inap- serve as Speaker and how they might need to propriate advice from a $ rst minister who has vote to preserve con$ dence in the government. 62
Constitutional Forum constitutionnel 9 While the importance of keeping the Crown actors are about what will happen when a legis- neutral and non-partisan is widely accepted, the lature sits, surprising and unexpected events do logic of keeping vice-regal representatives out of happen. Accordingly, this practice encourages post-election negotiations may not be. It might the Crown to reply on formal votes alone when be argued that the Crown has a greater role to ascertaining whether or not a $ rst minister hold play here, acting as a facilitator or mediator con$ dence. between the parties. Advocates of this position might also argue that the Crown could remain As one might expect, those hoping to make a neutral while helping the parties negotiate a sta- government fall may have a di& erent view about ble governing arrangement. Similarly, it could be whether a formal vote is the only indication that argued that the Crown should help parties $ nd con$ dence has been lost. For opposition parties, a way to make the legislature work a" er a tight a clear intent to withdraw con$ dence from the election. 63 us far, however, it would seem that government and form a new ministry should vice-regal o# ces prefer the cautious approach in% uence the Crown. In 2008, for instance, sup- of keeping the Crown away from discussions porters of this view argued that the Governor between parties. ere are also few recent prec- General was not bound to follow the Prime Min- edents of the Crown acting as a mediator. Yet, ister’s advice to prorogue since the coalition to until the boundaries of the Crown’s role are bet- displace the Conservatives held the majority of ter articulated and accepted, this practice will seats in the House of Commons and declared an remain below the threshold of a convention. intent to withdraw con$ dence in Harper’s gov- ernment. 64 Two other practices related to government formation are more contentious: Constitutional scholars have also argued that vice-regal representatives can consider other fac- Formal votes in the elected house are the proper tors than formal votes of no con$ dence when test of whether or not a government holds judging whether they are bound by a $ rst min- con" dence; comments and agreements made by ister’s advice, especially if the advice given serves opposition parties outside of the legislature are to prevent the legislature from expressing itself. 65 not su$ cient indicators that the government has Defenders of formal votes, however, argue that lost con" dence. relying on comments outside of the legislature ! e Crown can urge a " rst minister to undermines constitutional conventions related demonstrate they still hold con" dence when to advice, notably in terms of when the Crown 66 doubts arise; if a " rst minister is purposefully can legitimately reject it. Indeed, abandoning avoiding the legislature for an extended period of this practice could see the Crown compelling time to avoid a vote of no con" dence, the Crown the resignation of a government that has not can warn them that they might be dismissed. formally lost con$ dence. e events of 2008, moreover, highlight the danger of relying on the Relying on formal votes in the elected house promises of parties when trying to guess how the to determine whether a government holds or legislature will act when it meets. In the end, the has lost con$ dence rests on two reasons. First, coalition vying to replace the Harper govern- the legislature as an institution and independent ment fell apart in the short period during which corporate body expresses itself through its for- Parliament was prorogued, leading observers to mal procedures, not pledges or comments made conclude that the Governor General made a pru- by a portion of legislators outside of the cham- dent decision. 67 ber. e dignity of the legislature demands that it speak for itself according to its own rules; subsets Since votes in the legislature are the most reli- of the legislature should not pretend to speak for able test of con$ dence, current practice further it, no matter how accurately they may be echoing allows the Crown to encourage $ rst ministers to its views as a collective body. Second, prudence meet the elected house when serious doubt exists cautions against predicting how the legislature about whether they still hold con$ dence. is is will act. Regardless of how con$ dent political where comments made outside of the legislature
10 Volume 28, Number 3, 2019 have a part to play. If opposition parties declare A $ rst custom that pertains to government that they are committed to making the govern- formation is one that is most o" en confused with ment fall and forming a new ministry, the Crown convention, causing debate and consternation is within its rights to request that the $ rst minis- when it is not followed: ter meet the legislature in short order. 68 ! e party that carries the most seats during an In cases where a government is refusing the election will usually serve as the government. meet the legislature, thereby undermining the con$ dence convention, the Crown can warn When a party carries a majority of seats dur- the $ rst minister that they might be dismissed. ing an election, there is no doubt that their leader e reason behind this rule is a powerful one: will serve as $ rst minister. Even if that majority democratic principles demand that government is slim, the con$ dence convention and party dis- be regularly held to account by the legislature cipline ensure that the leader of the party with a and $ rst minister should demonstrate that they majority of seats will either form government or hold con$ dence. However, there are few known continue serving as $ rst minister if they are the precedents to back this rule and there is a lack incumbent. When an election produces a hung of agreement about whether the Crown should Parliament, this custom remains fairly in% uential threaten dismissal, save for the most exceptional in Canada, particularly if one party’s seat count of cases. As a result, this rule relies on reasons is substantially larger than the others. Although alone, making it a practice rather than a conven- these concepts do not $ t well within a parliamen- tion. e willingness of a vice-regal representa- tary democracy, the leader with the most seats is tive to issue such a warning will likely depend on o" en held to have “won” the election, and media the personality of the o# ce-holder, their inter- reports will o" en proclaim the party that has the pretation of the $ rst minister’s intentions, and most seats will govern as a minority. 69 In most their understanding of their role. cases, the opposition parties will agree with this interpretation. e practices surrounding the Crown and government formation are few but signi$ cant. e limitations of this rule are exposed ey provide the Crown with guidelines to navi- when an election produces a tight result, with gate potentially di# cult situations that arise dur- two parties carrying a comparable number of ing transitions and hung Parliaments. Because seats. When the party with the second largest they are subject to varying perspectives, and number of seats can cooperate with the third or insofar as the precedents that underlie them are fourth largest number, and they together have lacking or contested, they lack the force of con- a majority, the custom that the party with the ventions. eir application can therefore vary most seats should govern can be disregarded. Of and be challenged. course, this will o" en lead the largest party to protest and question the legitimacy of a smaller III. Customs party governing, citing the idea of ‘winners’ and ‘losers.’ As seen in Ontario in 1985 and in Customs are a third type of rule that shapes gov- British Columbia in 2017, however, hung Par- ernment formation. While they lack solid rea- liaments are not composed of winners and los- sons, they exert notable in% uence over the actors ers, but of potential partners who can negotiate owing to their acceptance and agreement. Since agreements that allow smaller parties to govern. they are long-standing rules, they tend to have e tradition that the party with the most seats a solid grounding in precedent. Indeed, prec- governs is not binding during hung Parliaments edent gives these rules their strength, in spite of and has been set aside when the situation war- the lack of a $ rm rationale. It must be reiterated, rants it. however, that customs are not convention. As a result, actors may choose to act contrary to these A second custom addresses when a request rules while still respecting the Constitution. for dissolution should be granted:
Constitutional Forum constitutionnel 11 ! e Crown should not refuse a request to Partisan politicians can spin or misrepresent dissolve the legislature if more than six months what was said during a private meeting with a has passed since an election. vice-regal representative. Leaders can twist what the Crown might say in private for partisan ends. Tradition holds that a $ rst minister should E& orts by the Crown to correct what was said be granted a dissolution upon request if su# cient can back$ re and be read as biased. Simply put, time has passed since the last election. Su# cient the risks to the Crown’s semblance of neutrality time is o" en described as a period of six months increase when a vice-regal representative agrees or less. e thinking here is that, regardless of to meet with party leaders behind closed doors the composition of the legislature and the ability during tense post-election periods. Accordingly, of another party to hold con$ dence, the elector- vice-regal representatives have traditionally tried ate should have an opportunity to express itself to minimize their interactions with party leaders rather than change governments within a sin- in these situations. gle Parliament. is timeframe is supported by precedent, such as the dissolution of Parliament e precedents surrounding this rule, how- under the short-lived Joe Clark government, ever, are mixed and party leaders can push to and is not the subject of signi$ cant controversy. meet with the Crown if they feel it serves their Regardless, the reason behind this rule is shaky. 70 interests. Opposition parties who have negotiated Six months is an arbitrary number. It might be a coalition or con$ dence and supply agreement, di# cult to defend this cut-o& in cases where the moreover, will want to show the Crown that they $ rst minister had not recalled the legislature for can hold con$ dence and that a request to dis- a long period a" er the election or votes of no solve the legislature before they have a chance con$ dence had been avoided by various means. to govern should be refused. e reasons behind Moreover, there may be instances where a policy this rule, furthermore, are open to critique. Per- announcement or legislation introduced a" er ceptions of the Crown’s neutrality and non-parti- six months since an election prompts opposition sanship are not necessarily undermined by meet- parties to organize themselves to displace the ing with party leaders, and vice-regal o# ces are government. e Crown should judge the merits able to correct misrepresentations of what was of their case based on the particularities of the said by issuing press releases. Indeed, observers situation when deciding whether a dissolution have called on vice-regal o# ces to be more open should be granted. While a six-month window and transparent as a matter of course; providing may be appropriate in most circumstances, the summaries of meetings with party leaders would Crown is not bound by this traditional time- be a step in that direction. 71 Ultimately, it is for frame. vice-regal o# ces to assess whether they are com- fortable moving away from this tradition. A third custom touches upon the Crown’s interactions with party leaders following an elec- e customs that surround government for- tion that yields a hung Parliament: mation are useful guides to how things are usu- ally done. Yet the reasons behind these rules ! e Crown should avoid numerous private are not always solid and can clash with atypical meetings with party leaders when it is unclear situations and new expectations. Consequently, who will be able to hold con" dence a% er an vice-regal representatives can choose to abandon election. these customs based on the particular circum- stances they face. In keeping with the practice that the Crown should not serve as a mediator between parties, IV. Norms and the norm that the Crown should be seen as neutral and non-partisan, vice-regal represen- Norms are the $ nal set of rules to be considered. tatives should only meet with party leaders if it In many ways, they can be considered the most truly necessary when it is unclear who will be important. ese morally-binding rules ensure able to secure the con$ dence of the legislature. that formal constitutional authority is exercised
12 Volume 28, Number 3, 2019 honourably and in keeping with fundamental A second norm pertains with the Crown’s constitutional principles. When norms are vio- dealings with the $ rst minister: lated, the Constitution and a& airs of government cannot operate properly, and the health of Can- ! e Crown should encourage " rst ministers to ada’s institutions is undermined. Unfortunately, exercise their powers honourably. except for evident cases, political actors may dis- First ministers are partisan politicians. ey agree about what norms demand and precedents struggle to gain the leadership of their parties, are not always a useful guide when determining to win the most seats during general elections, what is proper conduct. and to hold onto power once they have obtained it. ey face political opponents who are equally A $ rst norm addresses how the Sovereign determined. e temptation to bend the rules, to and her vice-regal representatives should act: do what it takes to win or survive, can be signi$ - cant. Occasionally, this can lead the $ rst minister ! e Crown should be, and be seen to be, neutral to abuse their constitutional authority or use it and non-partisan. in a dishonourable fashion. e severity of these abuses will vary. Such an abuse may be minor and As an apolitical head of state, the Queen defended as a fair use of the political advantages and her representatives must be above partisan a& orded the $ rst minister, such as calling an elec- politics and remain neutral in their dealings with tion when an opposition party has just named a politicians and constitutional questions. e new leader. 74 It may be notable but not especially legitimacy of these o# ces in modern democra- severe; Harper’s 2008 prorogation would argu- cies depends on their acting as guardians of the ably qualify here. But, it may also be quite prob- Constitution. If the Crown is seen to be insu# - lematic and evident. Using prorogation to force ciently neutral or favourable to one party or ide- a “no deal” Brexit in the United Kingdom would ological persuasion, its decisions can be called be an example. 75 Although these actions can be into question and the institution may be weak- undertaken while respecting constitutional con- ened. Accordingly, vice-regal representatives vention, and indeed thanks to convention, they must do everything they can to act neutrally and are ethically dubious. to be seen as be non-partisan. As the guardian of the Constitution, the Regrettably, certain conventions and prac- Crown has a duty to discourage a $ rst minister tices make it di# cult for the Crown to avoid from acting dishonourably, particularly when perceptions of partisanship. Having vice-regal formal advice is involved. Vice-regal represen- representatives read partisan throne speeches, tatives can attempt to change the $ rst minister’s for instance, demands that the Crown speak in mind, delay a decision to allow a cooling-o& politically charged terms. 72 Canadian govern- period, or tell the head of government that their ments have appointed former politicians to vice- actions are unbecoming of the minister of the regal o# ces, which paints the o# ce-holder with Crown. 76 As long as the $ rst minister is acting a partisan hue, whether justi$ ed or not. Politi- within the rules of convention, however, vice- cal actors who are frustrated with a vice-regal regal representatives must accept their advice, decision can accuse the o# ce-holder of bias. 73 unless they are prepared to compel the $ rst min- Poorly chosen words spoken by vice-regals can ister to resign. Constitutionally, $ rst ministers be misinterpreted by those looking for partisan are responsible for unethical decisions and can leanings. In light of these challenges, vice-regal be held to account for them. representatives must reiterate their neutrality Finally, norms must be relied upon to deal when it is questioned and ensure that they do with veritable institutional crises: not allow themselves to be manipulated by par- tisans. is is especially important during post- In an emergency, the Crown may need to act election periods when political contentiousness contrary to the convention to protect democracy is heightened. and the rule of law.
Constitutional Forum constitutionnel 13 While the Crown is constrained by conven- regal o# ces should explain their constitutional tion when dealing with a $ rst minister who is roles and activities. 79 e O# ce’s website details acting dishonourably, necessity dictates that the how the Crown’s powers are exercised and in Crown prevent genuinely unconstitutional acts what context. Press releases provided by the by the $ rst minister, even if this involves tem- O# ce also provide thorough explanations of the porarily setting aside convention. 77 Were a $ rst procedures followed during transitions, includ- minister to refuse to accept their dismissal, order ing the sequence of events that occur and how the armed forces to interfere with the democratic these re% ect relevant government formation process or the legislature, or attempt to remove rules. 80 At a minimum, these practices should be a Governor General without cause, the Crown emulated across Canada. could be forced to act independently. In nearly all cases, the legislature, the courts, or police Yet these measures are unlikely to be suf- should be permitted to deal with the problem $ cient. Ultimately, it may be necessary to pub- $ rst. If they are unable to do so, and the threat lish cabinet manuals, as has been done in New to democracy and the rule of law is su# cient, the Zealand and the United Kingdom. If done in Crown would have a duty to act. As an example, consultation with all parties in the legislature, this might involve using the Crown’s supreme a codi$ cation and categorization of the rules military command authority to countermand a could $ ll the gaps in knowledge that surround directive from the Prime Minister to the armed government formation and the Crown’s role in forces. e exact form of an exceptional action the process. As recent provincial elections dem- to guard democracy and the rule of law would onstrate, better understanding of these rules is depend on the circumstances, and there will sorely needed. always be a risk that the Crown’s actions will be considered illegitimate or premature. But the Crown’s normative duty to protect these princi- ples is a critical feature of Canada’s constitutional monarchy. 78 Endnotes * Associate Professor and Barton Chair, Norman Conclusion Paterson School of International A& airs, Carleton University. e rules that surround the Crown and govern- 1 See AV Dicey, Introduction to the Law of the ment formation are not obvious, especially to the th non-specialist observer. While this analysis has Constitution , 9 Edition (London: Macmillan, 1939) at 417. o& ered an assessment of the relevant conven- tions, practices, customs, and norms, academic 2 See James Mahoney & Kathleen elen, “A eory of Gradual Institutional Change” in James work cannot substitute for o# cial descriptions Mahoney & Kathleen elen, eds, Explaining and explanations of vice-regal roles and func- Institutional Change: Ambiguity, Agency, and tions. Likewise, vice-regal o# ces and o# ce- Power (Cambridge: Cambridge University Press, holders themselves would bene$ t from greater 2010) 1. clarity regarding their place in the process of 3 See Eugene A Forsey & GC Eglinton, “ e Question government formation. To this end, it would be of Con$ dence in Responsible Government” bene$ cial for all vice-regal o# ces to prepare and in Christian Leuprecht & Peter H Russell, eds, publish guidelines that explain the Crown’s con- Essential Readings in Canadian Constitutional stitutional powers and responsibilities. As well, Politics (North York: University of Toronto Press, vice-regal o# ces should be as transparent as pos- 2011) 33. Forsey and Eglinton prepared the study sible about how the Crown performs its constitu- in 1985 for the Special Committee on the Reform tional roles and functions. of the House of Commons. 4 See Geo& rey Marshall, Constitutional Conventions: e O# ce of the Lieutenant Governor of ! e Rules and Forms of Political Accountability Ontario provides the best example of how vice- (Oxford: Clarendon, 1984) 54-79.
14 Volume 28, Number 3, 2019 5 See Philippe Lagassé, “ e Crown and Prime 16 See Andrew Heard, “Constitutional Conventions Ministerial Power” (2016) 39:2 Can Parliamentary and Parliament” (2005) 28:2 Can Parliamentary Rev 17. Rev 19 at 20. 6 See Craig Forcese, “L’A& aire SNC-Lavalin: e 17 See Neil S Siegel, “Political Norms, Constitutional Public Law Principles” (9 February 2019), online Conventions, and President Donald Trump” (blog): Public Law Blog
Constitutional Forum constitutionnel 15 33 See Twomey, supra note 7 at 44-114. barbara-messamore-christy-clarks-indiscreet- 34 See Ward, supra note 31 at 173-194. remarks-risked-dragging-lieutenant-governor- 35 See Gary Mason, “On the Verge of Being into-controversy>. Dethroned, Christy Clark’s BC Liberals Seek 52 See references to the Prime Minister-designate in Atonement”, Globe and Mail (19 June 2017), online: Canada, Privy Council O# ce, Manual of O$ cial 16 Volume 28, Number 3, 2019 Michael Jackson & Philippe Lagassé, eds, Canada newfoundland-labrador/ches-crosbie-slams-ball- and the Crown: Essays on Constitutional Monarchy judy-foote-1.5139743>. (Montreal & Kingston: McGill-Queen’s University 74 See the example of Prime Minister Jean Chrétien Press, 2013) 101. requesting a dissolution of Parliament shortly a" er 67 Eric Adams, “ e Constitutionality of Prorogation” Stockwell Day won the leadership of the Canadian (2008) 18:1 Const Forum Const 17 at 19. Alliance in 2000. 68 See Twomey supra note 7 at 582. 75 See Sam Fowles, “Can the Prime Minister 69 See Hugo Cyr, “On the Formation of Government” Prorogue Parliament to Deliver a No Deal Brexit?” (2017) 22:1 Rev Const Stud 103 at 104-105. (10 June 2019), online (blog): UK Constitutional 70 In a pseudonymous letter to e Times in 1950, Law Association Blog Constitutional Forum constitutionnel 17 18 Volume 28, Number 3, 2019