Whatever the outcome of Monday's election, constitutional questions will arise that have major consequences for the life and work of Canada's 41st Parliament.
If the election gives the Conservatives a majority in the House of Commons, there's no doubt that Stephen Harper will remain as Prime Minister. Still, there's an important question about the life of the new Parliament: When will it meet?
Section 38 of Canada's Constitution states that "the Governor General shall from Time to Time … summon and call together the House of Commons." What does "from Time to Time" mean? The troubling answer is that Canada is virtually alone among the world's parliamentary democracies in not having a constitutional rule or well-established practice requiring parliaments to meet soon after an election. Since 1945, the average number of days from the election to the first sitting of the newly elected Parliament has been 75. The only limit is the section of the Charter of Rights that requires there be a sitting of Parliament and provincial legislatures every 12 months.
Even if the Harper Conservatives win a majority, it's important that the Prime Minister advise the Governor-General to summon Parliament within a short time - perhaps even shorter than the 37 days that elapsed before Parliament met after the 2008 election. Among other things, the passing of the budget should not wait until the fall.
There's an even stronger case for summoning the House quickly if no party has a majority. Until Parliament meets, we won't know who has its confidence - and commanding the confidence of the House is the licence to govern in our system of parliamentary government. Mr. Harper has the right to carry on as Prime Minister whether or not his party has more seats than the Liberals but only as a "caretaker government" that can take no initiatives. It would be intolerable if Mr. Harper were to follow the example of Joe Clark, who, after the May 22, 1979, election, formed a minority Conservative government but then waited until Sept. 10, 140 days after the election, to test whether his government had the confidence of the House.
When the House does meet and no party has a majority, there are basically three ways of forming a government. First, the Conservatives can simply carry on as a minority government hoping to win support, issue by issue, from opposition MPs. Second, either the Conservatives or the party that finishes second in seat numbers can form a legislative alliance with one or more other parties that would agree to support them on the basis of a shared legislative program. Such an agreement between David Peterson's Liberals (who finished second to Frank Miller's Conservatives) and Bob Rae's NDP gave Ontario a stable minority after the 1985 provincial election. In this option, the parties supporting a Liberal or NDP government would not have cabinet positions. The third option is a coalition government in which two or more parties form a government and share cabinet posts.
All three options are constitutionally legitimate. Indeed, in the dozens of parliamentary democracies around the world, it's highly unusual for any party to have a parliamentary majority. Governments in most of these countries are either coalitions or single-party minorities supported through alliances with opposition parties.
If the Conservatives don't win a majority on Monday, Mr. Harper isn't likely to try to form a coalition government or make a legislative alliance with any opposition party. So what would happen if his government fails to win the support of any opposition party when the House meets in late May or early June and is defeated on the Speech from the Throne?
At this point, constitutionally, Mr. Harper has two options. He could resign and advise the Governor-General to invite the leader of the party with the second-largest number of seats, either Michael Ignatieff or Jack Layton, to form a government. Or he could advise the Governor-General to dissolve Parliament and call another election.
It's the second case that lands us in a "constitutional crisis" similar to the Byng-King affair of 1926. The principle that the Governor-General must be guided by in considering Mr. Harper's request is that a prime minister's advice (even if the prime minister has lost a confidence vote in the House) should be rejected only if doing so is necessary to protect the integrity of our parliamentary system. Calling an election, the fifth in seven years, just a few weeks after the last election when there's a plausible alternative government that can command the confidence of the new Parliament may well be such a situation.
Of course, it all depends on whether Mr. Ignatieff or Mr. Layton can make a plausible case that a government one of them heads will be supported by a majority in the House. The Governor-General will need more than their good intentions to have the compelling case he needs to justify rejecting the Prime Minister's advice.
If Monday's election produces a House in which no party has a majority, let's hope our political leaders have the good sense to work together to avoid a Byng-King constitutional crisis.
Peter H. Russell is professor emeritus of political science at the University of Toronto.