Minority Report: Forming Government in the 43rd Parliament

The 43rd Canadian general election will be held on October 21. Social and mainstream media are atwitter at the prospect of a House of Commons where no party holds a majority of seats. The result could be a minority government, or the first formal coalition since 1920, or both.

Many are speculating: who will be the prime minister after October 21?

The answer is simple: Justin Trudeau remains prime minister, regardless of the election result, until he resigns, dies or is dismissed.

To the extent this is surprising reflects the misinformation that exists around government formation in Canada. Although we have a constitution similar in principle to that of the United Kingdom, we endure a deluge of news about United States politics, which seeds public confusion. The media exacerbate the problem by declaring a party (and its leader) as having “won” an election based on seat count, while further confusion is sowed by partisans seeking to sway public opinion.

Accordingly, we wish to summarize some key points that will hopefully be of assistance to the reader both on election night and in the days and weeks that follow.

Constitutional Primer

As a primer, recall that all federal government action is taken in the name of the Crown. Therefore, there should always be a government to advise the Crown and to be responsible for the Crown’s actions. The Crown is represented in Canada by the governor general.

When Parliament is dissolved, all 338 seats in the House of Commons are vacated. However, the prime minister and the rest of the cabinet continue in place. This is not mere ceremony – they hold the full legal authority of their cabinet offices, although they are constrained by the caretaker convention.

Election Outcome: One Party Wins a Majority of Seats

The “simplest” election outcome is when the party in government wins a majority of House seats: that party simply continues in government.

A similarly “simple” outcome arises when an opposition party wins a majority of House seats, although there is often confusion about the mechanics. Modern Canadian custom provides that the prime minister will signal an intention to resign to the governor general, who then invites the leader of the majority party to form government. On the pre-arranged date of the outgoing prime minister’s resignation, the incoming prime minister and the rest of the cabinet are then sworn in.

In the unlikely event that a prime minister obstinately refuses to resign despite another party winning a majority of House seats, the only legal remedy is dismissal by the governor general (a measure of last resort that never been used against a Canadian prime minister).

Election Outcome: No Party Wins a Majority of Seats

Things become potentially much more complicated if no party wins a majority of seats, a situation sometimes referred to as a “hung parliament”.

Contrary to popular belief, the governor general does not select the prime minister from among party leaders.

Instead, the prime minister retains the right to meet the House and present an agenda (by convention contained in the Speech from the Throne). This is because, as mentioned above, a prime minister remains in office, regardless of an election result, until resignation, death or dismissal by the governor general.

However, while the incumbent prime minister has the legal right to meet the House and present an agenda, much will depend on negotiations between the parties. A party (or parties) in government without a majority of seats must always rely on the votes of opposition members. If the government can no longer hold the confidence of the House, convention requires that the prime minister resign or advise dissolution.

Also, contrary to popular belief, an incumbent prime minister does not need to resign just because another party obtains a plurality of seats in the House. A prime minister whose party is reduced to second place retains the right to meet the House and present an agenda. While no prime minister in such a situation has exercised this right since 1925, it has occurred recently at the provincial level. It remains open to the House to indicate that the incumbent government no longer holds confidence.

Hung parliaments can produce many possible outcomes, as shown by recent Canadian experience:

  • After the 2018 New Brunswick election, the seat distribution was 22 PC, 21 Liberal, 3 People’s Alliance, and 3 Green. Liberal Premier Brian Gallant prepared a throne speech and met the House, but resigned after losing a confidence vote. The lieutenant-governor then invited the PC leader, Blaine Higgs, to form government. Premier Higgs obtained the confidence of the legislature through the support of the People’s Alliance.
  • After the 2017 British Columbia election, Premier Christy Clark’s Liberals held a plurality (but not a majority) of seats. The NDP and Green Party held the balance of seats, and announced a confidence-and-supply agreement that would permit NDP leader John Horgan to hold confidence. Nonetheless, Premier Clark prepared a throne speech and met the House, but resigned after losing a confidence vote, and the lieutenant-governor invited Mr. Horgan to form a government.
  • After the 2006 federal election, Prime Minister Paul Martin’s Liberals lost their plurality in the House of Commons to Stephen Harper’s Conservative Party. Prime Minister Martin quickly announced he would resign as prime minister and did not attempt to test the confidence of the House, thereby ending 13 years of Liberal rule.

Should the upcoming election produce a hung parliament, we look forward to election night and beyond to see how the parties (and any independent members) negotiate among themselves to determine who will form government.