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  But hung parliaments and minority governments can become controversial, leading to constitutional crises. If a first minister and his or her government lose the confidence of a majority of the members of the House of Commons or a legislative assembly, that first minister has lost the prerogative right to be first minister and to offer obligatory advice to the governor general or lieutenant governor on the exercise of executive power. In these circumstances, key executive power regarding the functioning of parliamentary institutions reverts to the hands of the vice-regal representative.

  If a first minister, having just lost a confidence vote, expressly demands dissolution of the House of Commons or the legislative assembly and the calling of new elections, does the vice-regent have the right to say no to such “advice”? Or can and should the leader of Her Majesty’s Loyal Opposition be called upon to see if he or she can form a government capable of sustaining the confidence of the legislature? If a first minister and government have been recently defeated on a confidence motion, does the vice-regent have an obligation to see if another party leader can form a viable government, thereby enabling the current legis­lature to continue in existence? If so, does the governor general or a lieutenant governor have the right to appoint an opposition party leader to the rank of first minister even if that party leader has not won the most recent election? If a first minister has apparently lost the confidence of the legislature and is facing a pending vote of confidence to officially confirm this loss, does the first minister have the right to advise the prorogation of the legislature so as to pre-empt a vote of confidence? Does a governor general have the prerogative right to refuse such advice as being unconstitutional? If need be, do representatives of the Crown have the power to dismiss a democratically elected first minister in favour of another parliamentary leader?

  Welcome to the complexities of the reserve powers of the Crown. While most minority governments do not lead to these types of problems and questions, some do, and these unique circumstances have defined how and why the reserve powers can and should be exercised. The sover­eign and her vice-regents have the prerogative to exercise real political power in the resolution of these constitutional controversies. The exercise of these powers, though, is not arbitrary. They are rooted in constitutional principles deriving from the concept of responsible government and based upon a set of cases and precedents dating back over a century.

  Case #1: Prime Ministerial Arrogance — 1896

  In special circumstances, the Crown is not obliged to follow advice. Take the federal election of 1896, when Conservative prime minister Charles Tupper was defeated by Wilfrid Laurier’s Liberal Party. Traditionally, a transition period follows the election. During this time, the outgoing first minister and cabinet clear out their offices, archive their files, and dismiss their personal and partisan advisers. Since the country or province can never be without a government, however, the defeated first minister is still head of government. A defeated first minister only ceases to be prime minister or premier when he or she tenders a resignation to the vice-regent on the day that the new first minister is sworn into office.

  The transition period of 1896 was a controversial one. Although by convention the old government simply acts in a caretaker function, Prime Minister Tupper opted to conduct public affairs and patronage politics. During this interval, he approached Governor General John Hamilton-Gordon, Earl of Aberdeen, advising him to make a variety of appointments to the Senate and the courts. All the nominees were well-known Conservatives. To Tupper’s shock, Aberdeen refused this advice, deeming the request constitutionally improper in that the prime minister had just lost the election and no longer possessed the right to advise such appointments. Only the newly elected prime minister had the right to offer such advice to the governor general. Rebuffed in this manner, Tupper and his government promptly resigned, and Aberdeen then appointed Laurier as prime minister. Among Laurier’s first actions was advising the governor general to appoint a variety of Liberal Party supporters to the Senate and the courts — advice that Aberdeen accepted as obligatory.[2]

  The key lesson here for future constitutional crises is that a vice-regent can refuse the advice of a first minister if the governor knows, or believes, that the first minister has lost the confidence of the parliamentary assembly. In such circumstances, the governor is free to exercise his or her own discretionary judgment with respect to the principles and practices of responsible government.

  Case #2: The King–Byng Thing — 1926

  Following the federal election of 1925, the Liberal government of William Lyon Mackenzie King confronted a complex Parliament. The Conservatives led by Arthur Meighen had won the most seats with 116, while the incumbent Liberals had been reduced to 99. The Progressives (a farmer-labour party) had won 24, and a further 6 seats went to other representatives. In this 245-seat House of Commons, these results meant the continuation of a hung parliament dating back to 1921, but with the Conservatives now being the lead party, just 7 seats short of a majority.

  In the days after this election, Mackenzie King, still the incumbent prime minister, contemplated tendering his resignation. He went to the governor general, Sir Julian Byng, Viscount of Vimy, to discuss matters. Byng suggested that the “dignified” course of action would be for King to resign, clearing the path for Meighen to become prime minister. After much consideration, King decided to remain in office and meet the new Parliament to see whether the new House of Commons would sustain his Liberal administration.

  Parliament convened on January 7, 1926, with Governor General Byng reading the speech from the throne. The government’s policy agenda was socially reformist and progressive, and on January 15, the Progressives supported the throne speech. Prime Minister Mackenzie King then settled down to governing.

  What we see here is a party coming second in an election creating a viable minority government with the support of a third place party. This outcome was, and is, perfectly constitutional in that the majority of the members of the House of Commons have the right to determine whether a government commands their confidence. If that majority is centred upon a combination of members representing second and third place parties, so be it.

  Mackenzie King’s political fortunes soured, however, with the emergence of a corruption scandal in 1926. It was doubtful by that summer whether the Liberals could continue to count on the support of the Progressives. By late June, the Conservatives, after months of attacking the government for its unethical management of public monies, moved a motion of censure against the government. It appeared likely that most Progressives would vote along with the Conservatives, bringing down the King government.

  Late on Friday, June 25, after four days of debate on the censure motion, the prime minister secured an adjournment on this vote until the following Monday. On Saturday, King went to Rideau Hall to speak with the governor general. The prime minister advised Byng to dissolve Parliament and order the calling of a new election. The governor general refused. Byng believed that just because Mackenzie King could not sustain a government did not mean that Arthur Meighen couldn’t. Byng mentioned that the Conservatives controlled the most seats in the House and that Meighen should be given his opportunity. The prime minister left this meeting without making any announcement of his plans. He brooded over the weekend, and then on Monday, June 28, King once again visited Rideau Hall. He again advised the dissolution of Parliament and the calling of an election. Once again, Byng refused, and at this point Mackenzie King resigned. Byng summoned Arthur Meighen to Rideau Hall, where he was appointed prime minister and charged with forming a government.

  Meighen’s ill-fated government was short-lived. Although his Conservatives held the greatest number of seats in the House of Commons, he still required the support of the Progressives to sustain his ministry, and this he could not get. There were just too many political and policy differences between these two parties. After only four days in office, Meighen’s gove
rnment lost a confidence motion, obliging the prime minister to see the governor general and advise the dissolution of Parliament and the calling of a new election. As it was now clear that no combination of parties in the current House of Commons could sustain a government, Byng accepted this advice and called for a new election in the fall of 1926. The Liberals won this contest, gaining a majority government.

  The King–Byng Thing of 1926 has attracted enormous scholarly attention, and opinions are mixed regarding the appropriateness of the governor general’s actions. Byng has had his defenders; the greatest of these was one of Canada’s foremost constitutional scholars, Eugene Forsey.[3] Professor Forsey always argued that the governor general was not a “rubber stamp,” and that there are times when the representatives of the Crown are required to carefully assess the constitutional and political dynamics of a crisis situation prior to rendering an independent judgment. According to Forsey, Byng was fully within his rights to refuse King’s requests for dissolution on the grounds that the Parliament was fairly young, having been in existence for only eight months, and the possibility existed that a party leader other than Mackenzie King could command the confidence of the House of Commons.

  More recent scholarship on these events has subjected Forsey’s defence of Byng’s action to searching criticism. These challenges, however, have not been on the basis of the governor general’s right to exercise independent discretionary judgment regarding a first minister’s command. Rather, they have focused on the quality of that discretionary judgment. Political scientists Frank MacKinnon and J.R. Mallory and law professors Peter Hogg and Patrick Monahan[4] all agree that Byng was fully within his rights to deny King his requested dissolution and that the governor general had the right to call upon Meighen to form a government on account of the principles outlined by Forsey. But to these analysts, Byng failed to fully appreciate the political situation that Meighen would be facing. As both Mallory and Hogg stress, Byng should have foreseen the exquisitely difficult situation Meighen would be placed in were he to become prime minister: he would be required to gain and maintain the support of the Progressive Party, long ideological foes of the Conservatives. Given this tension, Byng should have anticipated the problems that would engulf his newly appointed prime minister and not made the appointment. “It is clear,” writes Peter Hogg, “that Lord Byng’s failure to follow Prime Minister King’s advice was unwise, since a dissolution in fact turned out to be necessary.”[5]

  Case #3: The Liberal–NDP Accord in Ontario — 1985

  In the Ontario provincial election of 1985, the Conservatives, led by Premier Frank Miller, won a minority government, eleven seats short of a majority. The premier announced that he would soon convene the newly elected legislature, with the lieutenant governor, John Black Aird, reading the Conservative’s throne speech. In the weeks leading up to the start of the new assembly, however, Liberal leader David Peterson and the leader of the NDP, Bob Rae, met to discuss whether their parties could reach agreement on sustaining a new government.

  These discussions culminated in what became known as the Liberal–NDP Accord. This document established a formal legislative alliance between the two parties, committing them to vote down the Conservative government at the first opportunity and establish a Liberal minority government with a progressive legislative agenda. The accord also affirmed that the New Democrats would support the Liberal government on all votes of confidence in the legislative assembly for a period of two years, while the Liberals promised they would not seek a new general election during these same two years. Once signed and made public, a copy of this document was forwarded to the office of the lieutenant governor, informing him that once the Miller government was defeated, a new government was waiting to assume power. When confronted with the reality of the Liberal–NDP Accord, Miller publicly announced that a “reasonable conclusion” to this situation would be for him to ask for and receive the dissolution of the assembly and the holding of a new election, even though the previous election had occurred only about two months earlier.

  Such thinking, of course, was completely at odds with the now standard interpretation of the reserve powers, set by the precedent of the King–Byng Thing of 1926. If the premier took exception to this logic, the lieutenant governor did not. Prior to the opening of the new assembly, Aird let it be known to all party leaders that if the Conservative government was defeated on its throne speech, he would not consent to the dissolution of the legislature. Rather, he would call upon the leader of the opposition to form a government.[6] And this scenario transpired on June 18, 1985.

  This Ontario case reveals a number of constitutional truths respecting hung parliaments and minority governments. It is perfectly acceptable for a leader who led his or her party to a second place electoral result, as did David Peterson in 1985, to be called upon to become first minister if this party is the one that can gain sufficient support from a third party so as to have a working majority in the assembly. The key consideration in any hung parliament is not which leader has the most party members elected, but which leader is able to command the confidence of an overall majority of members of Parliament. If one party leader demonstrates his or her incapacity to command such confidence, the governor has the right, during the early life of the assembly, to determine if some other party leader can show such capacity. Once again, in navigating the twists and turns of minority governments, the representatives of the Crown are required to exercise keen political judgment.

  Case #4: The Prorogation Crisis of 2008 —Did the Governor General Do the Right Thing?

  The prorogation crisis of 2008 rivals the King–Byng Thing as a cause célèbre in the role of the Crown in dealing with hung parliaments. Not since 1926 has a single decision of a governor general come under such profound scrutiny and such intense criticism.

  The basic contours of this crisis were outlined at the beginning of this chapter. It simply bears repeating here that Conservative prime minister Stephen Harper, leading a minority government not even two months old, faced the prospect of a combined parliamentary opposition ganging up on his government and voting it and him out of power through a non-confidence motion. A Liberal–NDP coalition government would then take the place of the Harper administration, with this government having the legislative support of the Bloc Québécois for a period of eighteen months. The agreement here had its antecedents in the Ontario Liberal–NDP Accord of 1985. All these details were not only made public on December 1, but were transmitted to Governor General Michaëlle Jean in a formal letter signed by all three opposition leaders.

  The details of Prime Minister Harper’s quest to avoid the non-confidence vote have been narrated earlier. Here, we probe the merits and implications of Madame Jean’s decision. We know from media reports that the governor general and the prime minister discussed “Canada’s economic situation, the viability of an alternative coalition government and the mood of Parliament.” It was also reported, likely by someone close to the governor, that “Ms. Jean made clear to the Prime Minister that she was not a rubber stamp for his request to shut down Parliament until late January; that it was within her constitutional discretionary power to turn him down.” We learned that “halfway through the meeting, Mr. Harper and Mr. Lynch, Ottawa’s top civil servant, were left alone in the room while the Governor General and Ms. Cook [Madame Jean’s secretary] went to confer with special advisers Peter Hogg, former Osgoode Hall law dean and author of the definitive scholarly work on constitutional law in Canada,” and Peter Russell, professor emeritus of political science at the University of Toronto. Following this meeting within a meeting, Madame Jean returned to the prime minister and agreed to his request.[7]

  Most constitutional experts argue that Governor General Jean came to the constitutionally and politically appropriate conclusion. Ned Franks, an expert on parliamentary procedure and a leading defender of the governor general’s decision, has highlighted the requirement for Madame Je
an to exercise shrewd political judgment. To start, no prime minister had ever been denied a request for prorogation. But this fact alone could not have been determinative to the outcome of Madame Jean’s decision, or the meeting with the prime minister would not have lasted as long as it did. That they discussed the mood of Parliament and the viability of an alternative coalition government points to the heart of the governor general’s concerns. It is highly likely, in Franks’s assessment, that the prime minister would have questioned both the legitimacy and competency of the alternative Liberal–New Democrat coalition. He likely would have argued that both the Liberals and the NDP had lost the last election, that they had never campaigned on the idea of forming a coalition government, and that the proposed coalition was based on a rotten foundation: it would require the continued support of the Bloc Québécois. Rather than being confronted with a government-in-waiting should his government fall, the prime minister no doubt pointed out, the governor general was being presented, by Messieurs Dion and Layton, with a catastrophe waiting to happen — a federal government lacking political legitimacy, questioned and doubted by most Canadians, and needing the support of sovereignists to survive.