I took this photo in June 2013 when I visited Government House in Victoria. The grounds host an array of beautiful gardens, which Victoria’s mild oceanic climate sustains year round.

The Vote in the Legislative Assembly

At around 5:30 Pacific Daylight Time on 29 June 2017, the Legislative Assembly of British Columbia carried New Democratic Party leader John Horgan’s motion of non-confidence and thereby defeated the Clark Ministry, by a vote of 44 New Democratic and Green MLAs to 42 Liberal MLAs.[1]

2  Mr. Horgan to move in amendment, seconded by Ms. Furstenau —

Be it resolved that the motion “We, Her Majesty’s most dutiful and loyal subjects, the Legislative Assembly of British Columbia in Session assembled, beg leave to thank Your Honour for the gracious Speech which Your Honour has addressed to us at the opening of the present Session,” be amended by adding the following:

“but Her Honour’s present government does not have the confidence of this House.” (MOVED.)[2]

In principle, Horgan’s amendment attaching a statement of non-confidence to the Address-in-Reply was redundant, because the Address-in-Reply to the Speech from the Throne  itself serves as a vote of confidence anyway. But whether the assembly votes against the motion to adopt the Address-in-Reply or votes in favour of an opposition amendment to the Address-in-Reply, the outcome remains the same: the assembly withdraws its confidence from the Ministry. The three Greens MLAs held up their end of the supply agreement and voted with the New Democrats.

Premier Clark Goes to Government House and Cops Out

Premier Clark then promptly rushed off to Government House to speak to Lieutenant Governor Guichon. She entered the building at 5:53 PDT and emerged at around 7:20 PDT.

https://twitter.com/JWJBowden/status/880598593194930180

In an ambiguous, cop out, like the end of Monty Python and the Holy Grail in rhetorical form,  Clark announced that she had nothing concrete to say and that the Lieutenant Governor was deliberating on a decision. Then around 7:45, CBC News reported that the Lieutenant Governor had asked John Horgan to form a new ministry. Surely, Clark should have waited an additional 10 to 15 minutes and only then announced everything properly in one go. That said, I suspect that Clark knew when she made her initial statement that the Lieutenant Governor had rejected her constitutional advice to dissolve the 41st Legislature and had therefore dismissed her, and Clark should therefore have made that more clear from the outset. It is very odd and improper that she did not.

The Lieutenant Governor Rejects Clark’s Advice to Dissolve, Thereby Forcing Her Resignation

The announcements should, ideally, have occurred as follows, within a few minutes of one another, because this method would have best preserved the principles of ministerial responsibility and the irresponsibility of the Lieutenant Governor:

1. Clark should have announced that she had tendered her resignation as Premier;
2. The Lieutenant Governor’s Office would then have published its press release announcing that the Lieutenant Governor had asked John Horgan to form a ministry;
3. John Horgan should have spoken shortly thereafter, as Premier-designate, and explained that the Lieutenant-Governor had asked him to form a ministry and that he accepted.

Lieutenant Governor Guichon released this short statement on Twitter:

“As the Lieutenant Governor of British Columbia, and as the representative of Her Majesty the Queen of Canada, I have met with Premier Clark and will accept her resignation. I have asked Mr. Horgan to form a government, he having assured me that he can form a government which will have the confidence of the Legislative Assembly.”[3]

Christy Clark’s Fairy Tales on Responsible Government

Clark’s second statement to the press was even more bizarre than her first and betrayed her ignorance of the principles of ministerial responsibility. Clark said:

I did ask the Lieutenant Governor tonight for a dissolution of the House. I offered my resignation and asked for a dissolution. And the reason I did that is because, as we had our conversation, it became very clear to me that the risk that would be posed by — what I believe the risk that would be there for changing the rules and really bending the rules of democracy in order to make another government work. So I told her that, and I talked to her about that. And when it became clear that I needed to ask for dissolution, which she made very clear that I only had two choices, I did ask for dissolution. Now, she hasn’t granted that request; she’s chosen another path. And I know that she will — I suppose — she’ll be able to talk to you about why she made that decision — I don’t know why, but she did, and I certainly accept that result. And, again, I certainly wish Mr. Horgan and Dr. Weaver the very, very best.” [4]

First, Clark’s remarks contain several curious turns of phrase, like the line, “I offered my resignation and asked for a dissolution.” That doesn’t make any sense. If a premier asks for a dissolution, then, by definition, she would continue as premier during the writ, in a caretaker capacity, because there is always only one ministry in office at a time. And if a premier offered her resignation, she would, by definition, no longer be able to tender constitutional advice to the lieutenant governor on anything — especially not something as serious and irrevocable as dissolution.

Second, it’s not entirely clear what Clark meant by “the risk that would be posed by […] changing the rules and really bending the rules of democracy in order to make another government work.” Presumably, she was not questioning the fact that the Lieutenant Governor of British Columbia possesses the authority, under exceptional circumstances, to reject a premier’s advice to dissolve the legislature. Clark might have been referring to the resignation of the current Speaker, Liberal MLA Steve Thomson, which is a shameful dereliction of duty on his part because the tenure of the Speaker is not tied to the tenure of the ministry, but rather to the life of the legislature itself.[5]  Once Lieutenant Governor Guichon summons the 2nd session of this 41st Legislature on Premier Horgan’s advice, the legislative assembly will have to elect a new speaker from the ranks of the 44 New Democratic and Green MLAs, which would reduce them to 43 active MLAs versus 43 Liberals MLAs and force the Speaker to cast tie-breaking votes on all matters of confidence. Steve Thomson has committed a lamented abdication of responsibility, and the Liberals have embarked on a parliamentary scorched-earth rampage to ensure that the 41st Legislature dies after a short and tumultuous life. The absence of only one MLA could cause Horgan’s ministry to fall, after which point he would advise Lieutenant Governor Guichon to dissolve the 41st Legislature. At this stage, I also suspect that Christy Clark will pull a Mackenzie King by declaring that Horgan should resign and that the Lieutenant Governor should re-commission her as Premier so that she can then advise Lieutenant Governor Guichon to dissolve the 41st Legislature.

Third, this statement strikes me as the most bizarre: “And when it became clear that I needed to ask for dissolution, which she made very clear that I only had two choices, I did ask for dissolution.” Obviously, after the legislative assembly has withdrawn its confidence from the ministry in a clear vote of non-confidence, the premier only has two options: ask for a dissolution, or resign. (See yesterday’s entry, “Some Discretion: On Dissolution and the Lieutenant Governor). What other options would there be? A withdrawal of confidence is a definitive act that necessitates one of two specific responses. There is no third option. The fact that Clark seemed to believe that there was — and possibly spent part of her audience with the Lieutenant Governor last night stalling, refusing to tender any advice at all, or even trying to advise prorogation after losing a vote of non-confidence in the chamber– reflects very poorly on her.

Fourth, Clark is wrong to suggest that “she’ll [Lieutenant Governor Guichon] be able to talk to you about why she made that decision [not to dissolve the legislature].” Since the Prorogation-Coalition Controversy of 2008, some scholars have promoted the notion that it is the responsibility of the governors to explain their decisions to reject one first minister’s constitutional advice and appoint another first minister thereafter.[6] This argument, born out of a misplaced ultra-democratic impulse, contradicts the fundamental principles of Responsible Government, namely, that the Crown of Canada, personified by the Queen of Canada and represented by the Governors, is personally irresponsible because “Ministers of the Crown take responsibility for all acts of the Crown” in its stead.[7] If anyone would “explain” Lieutenant Governor Guichon’s decision to reject Clark’s advice to dissolve the legislature, and thereby force her resignation, and, in turn, to appoint Horgan as Premier-designate, it would be Horgan himself. But in practice, such “explanations” are unnecessary, because we already know why the Lieutenant Governor took this course of action. Her Honour’s brief, factual and neutral press release contains all the information that we need: “I have asked Mr. Horgan to form a government, he having assured me that he can form a government which will have the confidence of the Legislative Assembly.” Lieutenant Governor Guichon rejected Clark’s advice because she could appoint Horgan as premier-designate, and Horgan can, in turn, take responsibility for Clark’s dismissal and the Lieutenant Governor’s decision to commission him to form a new ministry. Alpheus Todd, one of the most respected historians of Westminster Parliamentarism in the British Empire in the 19th century and the Parliamentary Librarian of the Dominion of Canada, elucidated all these principles so succinctly.

“The sovereign has an undoubted constitutional right to withhold his consent to the application of a minister that he should dissolve parliament. But, on the other hand, the Crown can only grant a dissolution upon the advice of a responsible minister. If the minister to whom a dissolution has been refused is not willing to accept the decision of the sovereign, it is his duty to resign. He must then be replaced by another minister, who is prepared to accept full responsibility for the act of the sovereign and for its consequences, in the judgement of parliament.”

“It is evident, therefore, that the sovereign — when in the exercise of this prerogative a dissolution is either granted or refused — must be sustained and justified by the agreement of a responsible minister. If this be constitutionally necessary as respects the sovereign, it is doubly so in the case of a governor.”[8]

Fundamentally, this is what Responsible Government means. At its core, Responsible Government is a trinity (three in one) of responsibilities: ministerial responsibility to the Crown, individual ministerial responsibility before the Commons, and collective ministerial responsibility & solidarity before the Commons.^[9] The ministry must command the confidence of both the governor, who grants ministers the authority to govern under the Crown, and of the legislative assembly, which must pass supply or else force either the ministry’s resignation or dissolution and fresh elections. And in practice, Responsible Government means that “Ministers of the Crown take responsibility for all acts of the Crown” and that the govenor acts on and in accordance with ministerial advice, save for exceptional circumstances, which in turn ensures the partisan neutrality of the Crown that he represents.^[10] The governor may reject or act contrary to ministerial advice only under exceptional circumstances precisely because of the exceptional consequence of his exercise of his discretionary authority: he forces the resignation of the Ministry and must appoint another that can subsequently take responsibility for those acts of the Crown. Ultimately, the governor’s first constitutional duty is to ensure that there is a duly constituted government in office at all times, because the Queen’s business must go on.[11]

John Horgan spoke briefly on the steps of Government House and declared: “I want to focus as quickly as possible on putting in place a cabinet and government structures so that we can get moving on the issues that matter to people […]”[12]

Government House itself flies the Union Flag and British Columbia’s provincial flag. The Lieutenant Governor’s Standard flies in the back garden (not visible here).

Transition of Power Between Ministries in Canada

 In Canada, transitions of power between ministries normally last two to three weeks and follow the general procedures outlined below.

Before describing what happened in British Columbia yesterday, it is helpful to outline how the transference of power between ministries normally occurs during a mid-parliamentary intra-party transition and during a post-election inter-party transition. Last night’s events would fall under a third category of mid-parliamentary inter-party transition.

A: Mid-Parliamentary, Intra-Party Transition of Power: McGuinty-Wynne Transition as Case Study

Lieutenant Governor Onley of Ontario published all of this information on the Lieutenant Governor’s website for public consumption at the time of these events; you can download it here: Onley (2013-01-25) Backgrounder on Constitutional Procedure of Changing Premier [13]

1. Incumbent first minister informs the governor of his intention to resign and becomes the “outgoing” first minister
2. The party leader poised to become the next first minister then becomes the “incoming” first minister
3. A few days later, the governor summons the incoming first minister, who then becomes the first minister-designate
4. The outgoing first minister and first minister-designate agree to the exact timeline for the transition.
5. 2 to 3 weeks later, the governor formally appoints the first minister-designate to office as first minister and swears in the rest of the cabinet

At the time, Lieutenant Governor Onley made clear that the intra-party, mid-parliamentary transition between the McGuinty and Wynne ministries occurred along the following timeline.

1. 12 October 2012: Premier McGuinty announced his intention to resign. The Liberal Party of Ontario then held an election amongst its members to elect a new party leader.
2. 26 January 2013: The Liberal Party elected Kathleen Wynne as its new leader.
3. 31 January 2013: Lieutenant Governor Onley recognized Wynne as Premier-designate. McGuinty & Wynne then coordinated transition.
4. 11 February 2013: McGuinty resigned, and Onley appointed Wynne as Premier.

B: Post-Election, Inter-Party Transition of Power: Harper to Trudeau Transition As Case Study

If we apply those procedures to the most recent federal general election of 2015, we would derive the following steps. This transition proved straightforward because the voters gave the Liberals a parliamentary majority, and because it occurred after an election when parliament was dissolved rather than mid-parliament, as the aforesaid example in Ontario did.

1. 19 October 2015: Canadians elected members for the 42^nd The Liberals won a parliamentary majority. Harper then became the outgoing prime minister & Trudeau became  the incoming prime minister.
2. 20 October 2015: Harper informed His Excellency that he intended to resign. Governor General Johnston summon Justin Trudeau later that day and made him Prime Minister-designate.
3. 4 November 2015: Harper resigned as prime minister, and the 28th Ministry went along with him. Governor General Johnston then appointed Justin Trudeau as Prime Minister and swore in the Cabinet for the 29^th Ministry.

C: Mid-Parliamentary, Inter-Party Transition of Power: Clark to Horgan

In this case, events have necessitated skipping the “incoming premier” stage and went directly to the “outgoing premier” and “premier-designate” phase.

1. 29 June 2017: After losing a vote of non-confidence in the legislative assembly, Premier Clark advises Lieutenant Governor Guichon to dissolve the 41st Legislature; Guichon rejects this advice, and thereby forces Clark’s resignation. Clark is now the outgoing premier.
2. 29 June 2017: Lieutenant Governor Guichon invites John Horgan, Leader of the Opposition and New Democratic Party, to form a new government. Horgan is now premier-designate.
3. 29 June to xy July 2017: The transition of power will take place, as Horgan lines up his choices for cabinet and incoming New Democratic ministers hire new staff, etc. The civil service would also do its necessary planning in order to support the incoming Horgan ministry. Clark will continue to serve as the Premier during this time, in a caretaker capacity, and hue only to routine and necessary government business.
4. xy July 2017: Lieutenant Governor Guichon will formally appoint Premier-designate Horgan as Premier of British Columbia and swear in the rest of his cabinet.

Shortly thereafter, in xy July or xy August 2017, Premier Horgan would most likely advise Lieutenant Governor Guichon to prorogue the 1st session in order to wipe the legislative slate and start anew, which would also allow the Lieutenant Governor to read his ministry’s new Speech from the Throne. The interession of this prorogation would probably be short because Horgan would probably want to meet the 2nd session of the 41st Legislature soon. In the 2nd session, MLAs will first have to elect a new speaker, since Steve Thomson has abdicated his duty, and then ask the Lieutenant Governor to read the Throne Speech. The assembly would then soon after vote on the Address-in-Reply to the Speech from the Throne.

The 2nd session will hang near the precipe even more closely than the 1st session did, because the Liberals have forced the legislative assembly to elect a new speaker from the ranks of the New Democratic and Green MLAs. After the election of this second speaker, 43 New Democrats and Greens will face off 43 Liberals, which will almost certainly force the speaker to cast tie-breaking votes on matters of confidence. Clark’s and Thomson’s revenge could soon topple Horgan’s ministry — which Clark would no doubt cite as retroactive vindication of her obstinacy yesterday — and British Columbian politics will easily keep the interest of politicos for the next few months. That said, Clark should not have been rewarded for these machinations with an early dissolution, and it was reasonable to let Horgan try to govern.

Similar Posts: 

• Some Discretion: On Dissolution and the Lieutenant Governor
• Can the 41st Legislature of British Columbia Elect a Speaker?
• Summary of My Panel at the Constitution at 150 Conference
• My Discussion on Government Formation at the University of Ottawa
• No Unilateral Dissolution
• Stop Appealing to the Governor General to Overthrow Responsible Government

Endnotes

            [1] British Columbia, Legislative Assembly, Debates of the Legislative Assembly (Hansard) 41st Legislature, 1st Session (29 June 2017), at 1720.

            [2] British Columbia, Legislative Assembly, Orders of the Day, No. 7, 41st Legislature, 1st Session (29 June 2017) (John Horgan).

            [3] British Columbia, Office of the Lieutenant Governor, “A Statement from the Lieutenant Governor,” 29 June 2017.

            ^[4] Justin McElroy & Richard Zussman, “Showdown at Government House: The Meeting That Ended 16 Years of BC Liberal Rule — Why Lieutenant Governor Guichon Rejected Premier Christy Clark’s Advice and Allowed the NDP to Form Government,” CBC News, 30 June 2017.

            [5] Charlie Smith, “Steve Thomson Resigns as Speaker of the BC Legislature,” The Straight, 29 June 2017.

                [6] Adam Dodek and Lorne Sossin, “When Silence Isn’t Golden: Constitutional Conventions, Constitutional Culture, and the Governor General,” chapter 7 in Parliamentary Democracy in Crisis, edited by Peter H. Russell and Lorne Sossin, 91-104 (Toronto: University of Toronto Press, 2009), 98, 102.

                [7] Sir John George Bourinot, Parliamentary Procedure and Practice, 4^th ed. (Montreal: Dawson Brothers Publishing, 1916): 102

            [8] Alpheus Todd, Parliamentary Government in the British Colonies, 2^nd Edition(London: Longmans, Green, and Co., 1894), 760-761.

^[9] Robert Macgregor Dawson, “The Constitutional Question,” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.

^[10] Sir John George Bourinot, Parliamentary Procedure and Practice, 4^th ed. (Montreal: Dawson Brothers Publishing, 1916): 102; R. Macgregor Dawson, The Government of Canada. 5^th ed. (1970), revised by Norman Ward (Toronto: University of Toronto Press, 1947): 175.

            [11] Canada. Department of Canadian Heritage. Ceremonial and Protocol Handbook.(Ottawa: Government of Canada, c. 1998): G.4-2; Henri Brun, Guy Tremblay, and Eugénie Brouillet, Droit constitutionnel. 5th Ed. (Montreal : Éditions Yvon Blais, 2008): 371.

            [12] Justin McElroy & Richard Zussman, “Showdown at Government House: The Meeting That Ended 16 Years of BC Liberal Rule — Why Lieutenant Governor Guichon Rejected Premier Christy Clark’s Advice and Allowed the NDP to Form Government,” CBC News, 30 June 2017.

            [13] Ontario, Lieutenant Governor of Ontario, “Constitutional Procedure Regarding a Change of Premier,” 25 January 2013.