It is almost exactly one month to Election Day in Canada and the party leaders have been making all sorts of statements with a view to garnering sufficient votes to form the next government. Some of their statements, however, have had constitutional implications. In today’s Globe & Mail, Professor Eric Adams of University of Alberta has presented a quick summary of the leaders’ misconceptions as to who gets to form a government in the event there is no one party with a majority in the House of Commons. His article, “Minority Governments: The constitutional rules of the game” outlines how Conservative leader Stephen Harper, NDP leader Tom Mulcair and Liberal leader Justin Trudeau all get it wrong when it comes time to articulating the rules for formation of government.

Professor Adams quite properly observes that these statements may be motivated, not by the desire to be accurate, but rather by the objective of securing some political gain. But he goes on to note that it is not the political leaders who get to make the rules. The constitution sets the rules and, insofar as who gets to decide who will get a crack at forming the government, it is the Governor General who holds that responsibility.

Even if these were not calculated positions of political gain, but genuine misunderstandings of our constitutional rules, party leaders are players – not referees – in the game.

By constitutional convention, the authority to govern is determined not by the number of seats a party wins, but by decisions of the Governor-General. His decisions are constitutionally constrained by the principles of responsible government and historic practice, which keep our system democratic, accountable and rooted to venerable parliamentary traditions, no matter what obfuscations or convenient positions politicians take during political battle.

Professor Adams goes on to note that, while the Governor General takes his advice from the prime minister, he is not bound to follow that advice and will seek advice (and has sought advice) from independent constitutional scholars and advisors on the questions that are before him. He observes that our current Governor General, David Johnston, is well equipped having been a law professor and dean of law:

Mr. Johnston may face similar constitutional choices over the next several months. He is well equipped to handle them. As a former law professor and dean of law, he is intimately acquainted with the interpretation of legal texts and precedent.

Moreover, as have governors-general before him, he will have independent and impartial constitutional experts to consult as required. In reaching conclusions and making choices, he will be guided not by personal whim, political preferences or muddled politicking, but rather by a much lengthier and sturdier set of constitutional traditions and conventions that span the Commonwealth.

I commend Professor Adam’s article to you.

As well, not only have the political leaders been misleading the public as to the constitutional conventions that determine how governments are formed. but both Stephen Harper and Tom Mulcair have muddied the constitutional waters in other areas. Both have stated during this campaign that they are not going to make any more appointments to the Senate to deal with the growing 20+ vacancies. Again, these declarations are patently unconstitutional. The Prime Minister does not appoint senators. The Governor General does. Of course, by constitutional convention, the Governor General has appointed senators on the Prime Minister’s advice but the express terms of the Constitution Act, 1867 make it clear that, at the end of the day, it is the Governor General’s responsibility and obligation to fill vacant Senate seats. Section 24 makes it quite clear that the Governor General is to summons qualified people to the Senate:

24. The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.

If that was not clear enough, the drafters of the 1867 Act then went on to cover off the question of Senate vacancies in section 32:

32. When a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.

The Supreme Court of Canada has only so recently pronounced in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 at para. 18:

The primacy of our written Constitution remains one of the fundamental tenets of our constitutional framework…

If the prime minister of the day fails to provide the advice needed by the Governor General to fill Senate vacancies, then at some point, the Governor General must fulfill his constitutional obligations as expressly spelled out by our written Constitution. Can one foresee the Governor General either dismissing such a prime minister who is refusing to provide the advice in accordance with constitutional convention or maybe even having to act unilaterally to fill Senate vacancies? Since there is a good possibility that it may be either Stephen Harper or Tom Mulcair as Canada’s prime minister after the October 19th election, there is a good possibility that, on the Senate vacancy issue alone, Governor General David Johnston may have a growing constitutional crisis to which he will have to respond.

Professor Adams ended his article by suggesting that Governor General Johnston would respond to those concerned by our political leaders’ respective constitutional misunderstandings and misstated gaffes by saying: “Don’t worry, the Constitution endures.” I agree: Professor Adams is correct. And what’s more is that we may well get to observe the Governor General acting in his constitutional role more often and in more different ways than we have ever seen before.

I remain

Constitutionally yours,

Arthur Grant