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.
The way out for Mr. Harper, at least in the short term, is a request – also made to the Governor-General – to prorogue Parliament, in effect to shut the institution down temporarily. This would buy the government time to build political opinion against the idea of a coalition, and would put the durability of the coalition plan to the test. The idea of a Liberal-NDP government supported by the Bloc may have seemed good yesterday. It might not be so appealing for the participants in six or seven weeks' time, when Parliament would presumably resume with a Speech from the Throne. (And to be clear, Parliament is normally prorogued to a date on which it will return. This is an important principle. Otherwise we have a dictatorship.) Normally, such “Instruments of Advice” from the prime minister are simply rubber-stamped by the governor-general. They are generally simple matters of legislative scheduling by the government, and the governor-general does not have discretion to deny them.
This case is very different. To prorogue now would obviously be a shabby act by Mr. Harper. It would be the Conservatives who could be accused of being anti-democratic, of preventing Parliament from expressing its will on a matter of confidence over its handling of the economy. Mr. Harper would be shown to be a leader in retreat, fearful of facing the elected representatives of the people of Canada. Still, if Mr. Harper does request a prorogation, it would be very difficult for Ms. Jean to turn him down. The Governor-General would then need to ask herself whether it is worth a constitutional crisis over a measure that would delay Parliament for a matter of weeks.
The unwieldy three-way alliance of the opposition parties, led by the lame duck Mr. Dion, is clearly not promising as a prospective government. But Mr. Harper and the Conservatives must make their arguments on the merits, debating the good of Canada, without resorting to knowingly erroneous arguments about the Constitution. And if their decision is to attempt to save their political hides through proroguing Parliament, then it is a decision that they will have to wear.
In her expected actions this week and next, Ms. Jean will simply, and, one assumes, correctly, be exercising long-standing powers of the Crown in support of Canada's parliamentary democracy.