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On the Formation of Government Hugo Cyr*

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On the Formation of Government Hugo Cyr* On the Formation of Government Hugo Cyr* During the last decade, in Quebec and Lors de chacune des élections générales fédérales elsewhere in Canada, the media have competed ou québécoises ayant mené à la formation to be the fi rst to declare on election nights who d’un gouvernement minoritaire au cours de will form the next government. Irrespective la dernière décennie, les médias se sont fait of whether they predicted that any political concurrence pour annoncer en primeur qui party would be able to obtain a majority of allait former le prochain gouvernement, et ce, seats, these announcements have been made avant même que l’un ou l’autre chef de parti within only a few hours of the polls closing. se soit exprimé de quelque façon que ce soit sur Th ese announcements have systematically les résultats des élections. Les médias ont pris la preceded any public statement by the leaders très fâcheuse habitude de remplacer l’ensemble of the political parties involved. Indeed, the du corpus de règles et principes constitutionnels media have developed the unfortunate habit applicables à la formation du gouvernement of substituting an entire set of constitutional par l’application de la maxime simpliste rules and principles leading to the formation suivante : « le parti politique ayant fait élire of government by a simplistic heuristic: “Th e le plus grand nombre de députés a gagné political party that wins the largest number les élections et a droit de former le prochain of seats wins the election and has the right to gouvernement ». Les médias présentent la chose form the next government.” Th e media present comme s’ il s’agissait d’un automatisme, d’une the issue as automatic, merely a matter of simple question d’arithmétique. arithmetic. Or, si cette heuristique ne cause pas de Even if this heuristic works well when a party diffi cultés particulières lorsqu’un parti has won a majority of seats, it is completely politique remporte une majorité de sièges, elle inadequate as a statement of the constitutional est tout à fait inadéquate pour décrire le droit law and conventions related to the formation et les conventions applicables en matière de of government in our parliamentary system. formation du gouvernement dans notre système parlementaire. Th is article thus aims to fl esh out the Canadian constitutional rules and principles applicable Cet article vise donc à expliciter les règles et to government formation and illustrate how principes constitutionnels canadiens applicables constitutional considerations come into play à la formation du gouvernement et à illustrer in the variety of possible scenarios. A quick les diff érents facteurs constitutionnels devant reference tool is appended to the text to entrer en ligne de compte en fonction des facilitate consultation of the applicable rules divers cas de fi gure possibles. Un aide-mémoire and principles to those diff erent situations. se trouve en annexe du texte de manière à faciliter la consultation de ces règles et principes applicables à ces diverses situations. * LLB, BCL (McGill), LLM (Yale), LLD (Université de Montréal). Dean, Faculté de science politique et de droit, Université du Québec à Montréal, member of the Centre de recherche interdisciplinaire sur la diversité et la démocratie au Québec (CRIDAQ) and Lawyer (Barreau du Québec). Th is article is a translation of a longer article published in French, at Hugo Cyr, “De la formation du gouverne- ment” (2013) 43:2 RGD 381. Th at article received the Prix Germain-Brière from the Revue générale de droit. Note that the principles, rules and practices related to the “Prime Minister” and “Governor Gene- ral” apply mutatis mutandis to “premiers” and “lieutenant governors” unless expressly mentioned. 103 On the Formation of Government Introduction During each of the federal general elections or Quebec elections that have led to the formation of a minority government over the last decade, major television stations have competed to be the fi rst to announce who would form the next government,1 even before the leader of one party or another spoke out in any way about the election results. Why is there such a competition? Of course, social media have put pressure on traditional media to broadcast information faster, but while that may impact the speed of delivering individual results, it does not necessarily explain the race between themselves to call who would form the new government. Perhaps they are attempting to show that they are more relevant and that they off er higher quality information than other sta- tions. Alternatively, perhaps they are seeking to please an audience eager to hear the results and move on to something else. Who knows? What we do know, however, is that by systematically announcing that the party with the larger number of seats would form the next government, the “fourth estate” practically settles the issue of knowing who should form the next government and as such dismisses the numerous possibilities constitutional law off ers the members of Parliament in this matter. In other words, the media pre-empt the role of duly elected parliamentarians in choosing the next government. Indeed, the media has acquired the unfortunate habit of replacing the en- tire corpus of constitutional rules and principles applicable to the formation of government by the simplistic maxim: “Th e political party who gets the largest number of MPs elected wins the elections and has the right to form the next government.” Th e media present this as if it were automatic, which is to say a simple matter of arithmetic. Not even a few hours after the polling stations close, televised media, with certainty and authority, tell the entire population 1 For a detailed account of how major television stations raced to announce who would form the next government during the 2004, 2006, 2008, and 2011 federal elections and the 2007 Quebec elec- tion, see Hugo Cyr, “De la formation du gouvernement”(2013) 43:2 RGD 381, 385. In 2015 federal election, CBC News (Canada Votes 2015 Election Night, Livestream, online: <http://live.cbc.ca/ Event/Canada_Votes_2015_Election_Night/197448957>) and Radio-Canada (Hugo Dumas, “On s’est couché tôt!”, La Presse+ (20 October 2015) 23) projected a Liberal government at 9:40 P.M. Eastern Time. Th at was 10 minutes after polls had closed in Ontario and Quebec while polls were still open in British Columbia. TVA did it a minute later (ibid). At 10:32 P.M. Eastern Time TVA projected that it would be a majority government and Radio-Canada followed 5 minutes later with the same projection (ibid). Same for CBC (CBC, Livestream: Canada Votes 2015). Th e 2015 Quebec election to an even faster call: CTV projected a Liberal government at 8:18 P.M., TVA at 8:22 P.M., and 3 minutes later, Radio-Canada followed (Richard Th errien, “Des analystes étonnés et sonnés”, Le Soleil (8 April 2015) 24). CTV projected a few minutes later, at 8:36 P.M., that it would be a majority government and Radio-Canada was the fi rst French-speaking broadcaster to announce the same at 8:43 P.M. (ibid). 104 Th e Crown in the 21st Century - Volume 22, Issue 1, 2017 Hugo Cyr who will form the next government. As their only caveat, they allow for the possibility that vote counts could be incorrect. But when no party obtains a majority of seats, they do not describe the political situation; consciously or not, they shape it.2 And once electronic media reach a consensus regarding the identity of the next government, it becomes very diffi cult for political actors to stray from this consensus. Th is is even truer considering that, should we believe some surveys, Canada’s population in general, and Quebec’s population in par- ticular, have a very poor understanding of our political system: most citizens even believe they vote directly to elect their prime minister!3 Yet even i f the heuristic according to which “the party having obtained the largest number of seats forms the government” causes no particular diffi culty when a political party obtains a majority of seats — as it controls a majority of seats, the party is thus assured that it has the House’s confi dence, — it is in- adequate as a method of describing the applicable law and conventions in rela- tion to government formation. In reality, according to applicable constitutional conventions, when no party obtains a majority of seats,4 it is impossible to determine who will form the next government by relying only on the number of seats won by one party or another. 2 Th e day following general elections, printed media followed suit. All used as their headlines the same conclusions as electronic media. For the 1979 general federal elections, the matter was simpler since the incumbent Prime Minister, Pierre E. Trudeau, had declared that very evening: “I think it’s my duty at this time to recommend to my colleagues that we hand the government over … . Th at I recommend to the governor-general that he ask Mr. Clark to form a government.” (Claude Henault & Julia Elwell, “Trudeau sees ‘duty’ to hand it to Clark”, Th e [Montreal] Gazette (23 May 1979) 1). Th us newspapers were not taking much of a risk by using headlines such as: “Tories poised to form minority government”, Th e [Montreal] Gazette (23 May 1979) 1. Th ings degenerated, however, for subsequent elections. Th e printed media subsequently assumed and declared that the party having won a plurality of seats would form a minority government — notwithstanding the possibility for the other parties to enter into a coalition to form the government.
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