The Aftermath of the Canadian Federal Election – Sébastien Grammond

To everyone’s great surprise, the Canadian federal election of October 19 returned a majority Liberal government headed by Justin Trudeau. The immediate consequence of that majority was to render theoretical the speculation that took place in the last few weeks of the campaign about the consequences of a “hung Parliament,” i.e. a situation where no party obtains a majority in the House of Commons.

Canada’s political system is based on the Westminster model. Contrary to the United Kingdom, Canada has a written constitution, but that constitution says nothing about the formation of government. Rather, this is a subject governed by unwritten constitutional conventions. Most scholars agree that in a hung Parliament, the cardinal rule is that the government must always have the confidence of the House of Commons, which means the support of a majority of members.[1] The party that obtains that confidence may or may not be the party with the largest number of members. Canadian history offers examples of situations where the party with the second largest number of seats succeeded in forming the government.

Yet, during the election campaign party leaders stated publicly that their understanding of the convention was different and that the government would be formed by the party with the largest number of seats. Such a strategy had been deployed by the Conservative Party in 2008, during the “prorogation crisis,” to denigrate the proposed Liberal-NDP coalition and to delay the vote of no confidence that would have brought down the Conservative government. However, during this election campaign there was much more public awareness of the relevant constitutional conventions and the possibilities they opened. In particular, both the Liberal and NDP leaders stated publicly that they would never support a Conservative minority government. This led to a wide discussion of the possibility that even if the Conservative party won the most seats, it would be brought down by a no confidence motion on the earliest occasion, leading to a minority Liberal or NDP government. This discussion also sprung speculation about the tactics the Conservative government could use to hang on to power to postpone or avoid a vote of no confidence. It is perhaps too early to reach conclusions about the motivations of the voters, but one credible hypothesis is that the will to avoid a hung Parliament is one of the factors explaining the surge of the Liberal vote in the last week of the campaign.

Several issues of interest for constitutional lawyers were discussed during the election campaign, including reform of the Senate and the attitude that the federal government should take in the event of another referendum on Quebec independence. While the NDP’s promise of abolishing the Senate requires negotiations with the provinces to agree on a constitutional amendment,[2] the Liberal party stated quite clearly that it felt no need to reopen the constitution. As a result, Senate reform will be of limited scope. Senators will remain unelected and will hold office until they reach 75 years of age. However, the Liberal project is that Senators will be chosen among a pool of candidates screened by a non-partisan committee, in the hopes of increasing the qualifications of Senators and avoiding the blatantly partisan appointments that often took place in the past.

The Liberal platform contains other proposals that might influence Canada’s institutional development. Most importantly, the Liberal party promised that the 2015 election would be the last one fought under the “first past the post” system usually associated with the Westminster parliamentary system. While the Liberals have not yet chosen a specific alternative, possible reforms include proportional representation and transferable vote. Such alternatives have on occasion been studied at the provincial level. However, the issue tends to be raised by political parties that are in opposition. When those parties end up forming the government, their interest frequently wanes. Moreover, proposed reforms at the provincial level were rejected in referendums in Ontario (2007) and British Columbia (2005, 2009). Should proportional representation or transferable vote be adopted at the federal level, this would precipitate a major shift in Canadian political culture. Majority governments would become the exception rather than the norm. Political parties could no longer hope to gain a majority, and would need to develop a culture of cooperation. Parties that obtain a small proportion of the popular vote that is spread evenly across the country, such as the Green Party, would benefit. Conversely, the hopes of the Conservative Party to return to power would become slim, unless it develops the ability to reach agreement with other parties that are more to the center of the political spectrum.

The Liberal platform also included a promise to reform the process for the appointment of Supreme Court judges. On that front, the Conservative reforms of the last decade were largely cosmetic,[3] and were abandoned when media reports revealed that the government failed to listen to consultations with the legal community. It remains to be seen whether the new government will also reform the process for the appointment of trial and appellate judges, perhaps finding inspiration in the reforms undertaken by the Tony Blair government in Britain in 2005. Once again, the issue is whether the government will voluntarily relinquish a power that it has long enjoyed. This, in fact, is merely one instance of the ever-increasing concentration of power at the Prime Minister’s Office, which has been repeatedly denounced.

Some institutional issues might also deserve the attention of the new government despite not having being included in the Liberal platform. Election legislation is of particular concern. Over the last few years, amendments were made to the Election Act that ended public subsidies for political parties; that denied the right to vote to citizens living abroad for more than five years; and that imposed more onerous identification requirements – changes that were perceived as favouring the party then in power. One could ask whether a government holding a mere majority in the House of Commons should be able to amend election legislation. Perhaps a solution would be to subject amendments to the Elections Act to a qualified majority requirement, thus ensuring that they obtain cross-party support. Another issue relates to the uncertainty that still surrounds the constitutional conventions regarding the formation of government. It would certainly be beneficial to prepare a “cabinet manual,” as was done in Britain after the 2010 election, to provide at least a semi-official view of what those conventions are, thus reducing the likelihood of conflicting interpretations.

During the campaign, the contending parties took different stances about Quebec’s place in Canada. A lightning rod was the NDP’s “Sherbrooke Declaration,” which recognized, among other things, that Quebec could become independent from Canada though a simple majority vote in a referendum. Accordingly, the NDP promised to repeal the so-called “Clarity Act,” enacted by the previous Liberal government, which suggests that a qualified majority would be required, although it does not set a specific threshold. In contrast, the Liberals defended the Clarity Act; they also rejected reopening the constitution, either to reform the Senate or to respond to eventual Quebec demands.

This leaves the “Quebec question” in a state of uncertainty. Popular support for independence remains at a low point; in the last two elections, the Bloc québécois has not obtained the 12 seats necessary for its recognition as an official party. However, the question of Quebec’s symbolic adhesion to the 1982 constitution has not been resolved and does not appear to be on the short- or mid-term agenda of the Quebec government. One could argue that judicial decisions and administrative practice have implemented many of the provisions of the Meech Lake Accord, the demise of which in 1990 precipitated a series of events that led to the 1995 Quebec referendum on independence.[4] Formal amendments, however, appear to be out of sight. Opinion polls published during the campaign showed minimal public support for the idea of reopening the constitution to satisfy Quebec’s demands. Even among those who are more sympathetic to Quebec, the common wisdom is still that trying to amend the constitution is too risky. Fear of repetition of the 1990-1995 scenario appears to be an insuperable obstacle to major constitutional change.

Sébastien Grammond
Professor, Civil Law Section, University of Ottawa

[1] See, e.g., Hugo Cyr, “De la formation du gouvernement” (2013) 43 Revue générale de droit 381.

[2] Sébastien Grammond, “Qui peut réformer le Sénat canadien?” (2014) 48 Revista catalana de dret públic 53.

[3] Sébastien Grammond, “Transparence et imputabilité dans le processus de nomination des juges de la Cour suprême du Canada” (2006) 36 Revue générale de droit 739; Adam M. Dodek, “Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit” (2015) 67 Supreme Court Law Review (2d) 111.

[4] Sébastien Grammond, “Louis LeBel et la société distincte” (paper submitted to the Cahiers de droit); Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Oxford: Hart, 2015) at 54-56.

To everyone’s great surprise, the Canadian federal election of October 19 returned a majority Liberal government headed by Justin Trudeau.

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