OTTAWA — The Globe and Mail
Published Monday, Oct. 12, 2015 8:13PM EDT | Last updated Tuesday, Oct. 13, 2015 12:05PM EDT
Many Canadians see Governor-General David Johnston as a nice man who greets foreign dignitaries, reads a speech from the throne that others write for him and hands out awards. But a week from today, they may learn how important a role he plays in the life of the nation.
If the polls hold, Canadians could wake up to a hung Parliament after the 42nd general election, with no party able to command a majority of seats in the House of Commons. In that case, tradition, precedent and Mr. Johnston’s discretion could determine who governs Canada and for how long.
Earlier this year, Prime Minister Stephen Harper asked Mr. Johnston to extend his tenure for another two years. According to those close to the discussions, Mr. Harper anticipated the possibility of a hung parliament, in which no party won a clear majority of seats and it was unclear which party would form government.
A former professor of law, law-school dean and university president, Mr. Johnston had been repeatedly called upon by both Liberal and Conservative governments to offer advice in difficult situations, before Mr. Harper chose him for Governor-General in 2010.
Mr. Harper asked Mr. Johnston to stay on because he wanted someone with experience and skill at Rideau Hall, in the event of a close or uncertain result Oct. 19.
While we may understand that in a general election we vote for a local candidate in our riding and that the winners of these 338 contests then meet in the House of Commons and invest confidence in a government, in fact most people vote for a party and its leader.
This discrepancy between the parliamentary democracy that we have and the American-style assumptions that voters make “is a serious problem,” maintains Bruce Ryder, an authority on constitutional law who teaches at York University’s Osgoode Hall Law School.
“The important rules of the Canadian Constitution are conventional and unwritten and for that reason they are somewhat murky and open to contestation,” he says. “But nevertheless, they are absolutely crucial to the operation of our system of parliamentary government. And the governor-general plays a very important role in the situation that we’re likely to have with a closely hung parliament.”
For example, both Conservative Leader Stephen Harper in this election and Liberal leader Paul Martin when he was prime minister said that whichever party wins the most seats on election night gets to govern.
Not so. “That’s a political decision, not a constitutional one,” says Adam Dodek, a constitutional scholar who teaches at the University of Ottawa faculty of law. Only the prime minister may advise the governor-general, Prof. Dodek points out, and Mr. Harper will still be Prime Minister the day after the election. Whether the Conservative Party comes in first, second or third, Mr. Harper has the right to advise Mr. Johnston whether he wishes to form a government and test the confidence of the House of Commons.
“In 1993, Kim Campbell, as prime minister, had the right if she so desired to meet the House and suffer her fate,” he adds.
But since Mr. Harper has declared he will step down as prime minister unless his party wins the most seats, he would need a plurality to continue governing, which introduces another complication: Both Liberal Leader Justin Trudeau and NDP Leader Tom Mulcair have repeatedly declared that they would never, ever prop up another minority Conservative government.
Could Mr. Harper advise Mr. Johnston that he intended to form a government and then refuse to meet the House of Commons? Constitutionally, Parliament does not have to meet until next June, a year after the previous Parliament was dissolved.
However, long before then Mr. Johnston would likely intervene. A governor-general would let a government exist without testing the confidence of the House for “a few months and not more than a few months,” says David Schneiderman, a University of Toronto law professor, who has a new book, Red, White and Kind of Blue, that examines the drift in Canadian political culture away from its Westminster roots and toward the American model. “You don’t want to prolong uncertainty.”
Prof. Dodek concurs. “If a question of confidence is unclear, then it would be within the powers of the Governor-General to encourage the Prime Minister to call the House back earlier,” he says. “And obviously, there would be a lot of things going on in the background.”
In all of these scenarios, one principle would govern all others: Mr. Johnston would search for a party and a leader who could provide stable government.
“The governor-general operates as an independent referee acting in our interest,” is how Prof. Ryder puts it.
If any political leader tries to abuse the unwritten rules of the Constitution to seize or cling to power, or to force a premature and unnecessary election, then the Governor-General is there to protect those rules and to keep Parliament working.
“She or he is a single-use fire extinguisher,” says Prof. Dodek, though because the position is unelected, “if a governor-general says no to a prime minister, there must be a massive abuse of power by the prime minister.”
All observers trust Mr. Johnston to act with wisdom and discretion, whatever the situation.
“He’ll be attentive to the precedents,” Prof. Schneiderman predicts. “I don’t think he would ever play political favourites.… I like to think he’d do a good job of it and there’s no reason to think otherwise.”