Stephen Harper's declaration on Friday that “Stéphane Dion does not have the right to take power without an election” is not an accurate statement about the Canadian Constitution. Contrary to what Mr. Harper claims, if the Conservative government is defeated in the House of Commons on a matter of confidence, Governor-General Michaëlle Jean will have the duty to consider whether another party or group of parties could form a viable government, with a working majority.
In fact, if Ms. Jean failed to consider that possibility, if she failed to consult with Mr. Dion, she would defy long-standing constitutional conventions and risk being accused of being a toady of Mr. Harper. No matter what the Governor-General decides, whether she sides with a request from Mr. Harper for a dissolution, or whether she opts to invite Mr. Dion to attempt to form a government with the New Democrats, supported by the separatist Bloc Québécois, she risks being accused of partisanship. It could get very ugly for Ms. Jean, when she returns from her European travels today.
There are reports in Ottawa of furious activity in the Privy Council Office, as the government readies briefs in an attempt to support Mr. Harper's position and to persuade the Governor-General that she must follow the advice of Mr. Harper and order an election. In truth, no prime minister after a defeat on a matter of confidence has the right to demand a dissolution of Parliament within a few months of the most recent election. This is a case where Ms. Jean must not rely on advice she receives from her ministry, but consider the views of independent constitutional authorities.
The Constitution Act, 1867, gives Canada a “constitution similar in principle to that of the United Kingdom.” Those words import a set of principles known as “conventions of the Constitution.” On the issue at hand, the rules were formulated in an authoritative fashion in 1950 in a letter by Sir Alan Lascelles, then the secretary to King George VI, who wrote that no “wise Sovereign” (and Canada is a constitutional monarchy, with the Governor-General acting for the Queen) would deny a dissolution unless: “(1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.” At the time of her appointment, questions were raised about the suitability of Ms. Jean for the role. She had few qualifications for such a high office. This will be the test.
There are also plans, apparently instigated by the Conservatives, to try to cow Ms. Jean with a demonstration at her official residence, Rideau Hall, and by the generation of artificial “public opinion” to influence her decision. The Conservative response, then, to the self-inflicted political crisis in Ottawa may degenerate into a storm-the-Bastille attack on the Governor-General personally, or on the office of the Queen's representative. Mr. Harper, whose own blundering created this mess, must resist the temptation to use a scorched-earth policy in order to get his way. He knows full well the Governor-General's role, and his duty, like that of his opponents, is to ensure the institution is not subsumed into the ugly partisanship that has enveloped Ottawa.
In resisting a change of government, Mr. Harper has understandably appealed to a genuine feeling among many Canadians that it is up to the voters to choose the party in power, not to partisan political manoeuvres. Strictly speaking, however, the voters elect members of Parliament, who include the MPs of the opposition parties. There is also a widespread and genuine feeling among Canadians that politicians should get on with the governing of the country, rather than turning again and again to the electorate.
