Justin Trudeau Remains Prime Minister But Also Subject to the Caretaker Convention


Results of the Election        

On 21 October, voters elected members to a minority parliament, the fourth in the last fifteen years. In this House of Commons, engorged to 338 members since 2015, a party needs at least 170 to form a majority, though 171 serves as a more practical barrier considering that the House of Commons usually elects a speaker from the governing party; majority governments prefer not to have to call on the Speaker to cast tie-breaking votes in favour of the government as a matter of course. The official standings gave the Liberals a strong plurality but left them 14 MPs short of a practical working majority. The Liberals would therefore need the support of either the Bloc or New Democrats, along perhaps with that of the Greens when the occasion permits.

Party Seat Count Popular Vote Vote Total
Liberals 157 33.1 5,911,588
Conservatives 121 34.4% 6,150,177
Bloc Quebecois 32 32.5% in QC (7.7%) 1,377,234
New Democrats 24 15.9% 2,845,949
Greens 3 6.5% 1,160,694[1]

The Conservatives won the plurality of the popular vote, but the Liberals won the plurality of seats because Conservative support remains inefficient, highly concentrated and very strong as it proved in Alberta and Saskatchewan. The Conservatives won a staggering 69.2% of the popular vote in Alberta and all but one of the province’s 34 seats. The Conservatives also swept all 14 of Saskatchewan’s seats under a commanding 64.3% of the popular vote there. The Conservatives even won a plurality of the popular vote (34%) and seats (17) in British Columbia, versus the Liberals’ 26.1% and 11 seats. The New Democrats also picked up 11 seats and 24.4% of the popular vote in our Pacific province. Vancouver Island produced two-thirds of the Greens’ victories (the other being in New Brunswick). However, Central Canada mostly came through for the Liberals and made their plurality. The Liberals claimed the plurality of popular support in Ontario, 41.4% and 79 seats compared to only 33.2% and 36 seats to the Conservatives. The Liberals also won a less decision plurality of the popular vote in Quebec: 34.2% and 35 seats, with the Bloc not far behind at 32.5% and, rather neatly, also 32 seats; the Conservatives rounded out at 16%, but highly efficient and nicely concentrated enough in Quebec City and its environs on the South Shore of the St. Lawrence to translate to 10 seats. Perhaps the Conservatives can take heart that they won back three seats in New Brunswick and one in Nova Scotia. The Conservatives remain shut out of Newfoundland & Labrador and Prince Edward Island, while the Liberals won nothing in Alberta and Saskatchewan.

Historically minded readers (I presume, at this point, that this captures most of you) might appreciate the grand coincidence at play here: as in 1972, the Liberals saw their commanding majority reduced to mere plurality under a Prime Minister named Trudeau who, four years prior, had led his party to victory amidst much enthusiasm, good will, and perhaps also, media acclaim.

Justin Trudeau Rejects Coalition and Will Continue with a Single-Party Minority Government

Justin Trudeau has remained throughout the writ and shall remain in office as Prime Minister of Canada, though he will need to re-construct his cabinet, given that the Conservatives’ conquest of Saskatchewan deprived of his seat the redoubtable Ralph Goodale, who holds one of the most prominent and important posts in cabinet as Minister of Public Safety, a role that comes with responsibility for one line department and five other agencies in the security and intelligence community. Other key ministers in what the British call the Great Offices of State retained their seats: Bill Morneau, Minister of Finance; Chrystia Freeland, Minister of Foreign Affairs and International Trade; Harjit Sajjan, Minister of National Defence. But Goodale will, by convention, have to resign from cabinet once Prime Minister Trudeau undertakes a re-shuffle.

The Prime Minister announced today, 23 October 2019, that he will meet the 43rd Parliament at the head of a single-party minority government and rejected a coalition and probably even also a confidence-and-supply agreement: “They will be various and varied conversations, but I can tell you it is not in our plans at all to form any sort of formal coalition — formal or informal coalition.”[2] The Trudeau government would therefore have to find support from another party, ad hoc and case by case, as the Harper government did in two minority parliaments from 2006 to 2011. (Presumably, the Conservatives would have to support the Trudeau government on construction of the Trans-Mountain Pipeline, which Trudeau pledged to undertake today and which the New Democrats and Greens have rejected).

British Prime Minister Benjamin Disraeli once remarked in the 19th century, “England does not love coalitions.” Neither, it seems, does Canada. Since Confederation, Canada has seen only one coalition government, the ill-fated Unionist Coalition between Sir Robert Borden’s Conservatives and most English-speaking Liberals from 1917 to 1920, which nearly tore the Dominion asunder in the Conscription Crisis. The Cabinet itself consists of 15 Conservatives, 9 Liberals, and 1 Labourite; interestingly, however, it spanned two majority parliaments (from 12 October 1917 to 10 July 1920), and the Liberals and Conservatives ran in the war-time election of 1917 on a joint slate, as a coalition instead of as two separate parties.[4]

Prime Minister Trudeau further announced that he will advise Governor General Payette to swear in his re-constructed cabinet on 20 November 2019.[5] This, in turn, raises questions on when the 1st session of the 43rd Parliament will meet, the application of the Caretaker Convention, and the potential need for Governor General’s Special Warrants.

A trio of proclamations dissolved the 42nd Parliament and issued writs of election on 11 September 2019, named 21 October as polling day, made the writs returnable for 11 November 2019, and scheduled the pro forma despatch of business for the 1st session of the 43rd Parliament for 18 November.[6] However, if the Governor General will not swear in the new cabinet until 20 November 2019, then the Prime Minister will have to delay convening the 43rd Parliament by at least a few days. Proroguing the intersession is routine; the pro forma despatch of business essentially acts as place-holder.

For example, in 2008 when the Harper government found itself under similar circumstances (a strong plurality only 12 short of an effective majority plus Speaker), Prime Minister Harper delayed meeting the 40th Parliament from its pro forma convening on 12 November 2008 only by a week, until 18 November 2008.[7] Prime Minister Trudeau could conceivably do the same, delaying the first meeting of the 43rd Parliament until, say, the week of 25 November or 2 December 2019. As a practical matter, Prime Minister Trudeau will almost certainly have to advise Governor General Payette to convene the new parliament by mid-January 2020 at the latest, especially if money becomes a concern. Under the Financial Administration Act, the Governor General’s Special Warrants allow the Government of Canada to appropriate monies when “urgently required for the public good” directly from the Consolidated Revenue Fund, which Parliament then retroactively approves, if and only if parliament stands dissolved, and then only for a limited duration beginning upon the date of the issuing of writs until 60 days after the date fixed for the return of writs – in this case, from 11 September 2019 until 10 January 2020.[8]  Minority parliaments should meet sooner rather than later so that the House of Commons can settle the question of who governs within a reasonable time and in order to preserve the neutrality of the Office of Governor General.

But this still raises some interesting questions on the Caretaker Convention and a reasonable debate over whether it should end upon a major shuffling of cabinet in the 29th Ministry, or, alternatively whether the Caretaker Convention should only end when (or if) the Trudeau government first wins the confidence of the new House of Commons.

The Caretaker Convention Should Still Apply Until the New Parliament Meets – But It Might Not

For the second time in 2019, an incumbent Liberal government has seen its majority reduced to a plurality. Lyle Skinner and I noted in our post from August 2019, “‘There’s Nothing Strategic About This: How Dwight Ball’s ‘New Government’ Distorted the Caretaker Convention” that Premier Ball attempted to bypass the Caretaker Convention, effectively letting the Lieutenant Governor, rather than the House of Assembly, decide when it ended. Dwight Ball went through this charade of having himself re-appointed to an office that he already occupied as the head of a “New Government” for purely political and self-interested purposes. In short, Ball claimed that the Lieutenant Governor had “re-appointed” him as Premier and sworn in a new cabinet on 30 May 2019 so that he could demonstrate, in the most punctilious and pedantic way, that he had adhered to a document produced by Newfoundland and Labrador’s Executive Council Office, Guidelines on the Conduct of the Public Service During an Election Period. In so doing, Ball claimed to have met the House of Assembly not only already inherently possessing, but also deliberately exercising, plenary executive authority even before meeting the new legislature on 10 June and re-tabling the budget, let alone before demonstrating that his Ministry commands the confidence of the newly elected House of Assembly. This document, clearly drawing inspiration from its federal counterpart, says:

The caretaker period beings once the election writ is issued and continues until after the election reveals a clear result (i.e., the incumbent government is clearly re-elected or a newly elected government is sworn in). 

If an election results in the incumbent government being re-elected, public service business can return to normal operations on the day following the election. If a new government is elected or if an election result is unclear about which party will form the government, then caretaker guidelines continue to apply until a government is clearly identified as sworn in.[9]

The Privy Council Office’s third edition of the Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff, and Civil Servants During an Election, released in September 2019, almost rejects that the vote of the House of Commons determines when the Caretaker Convention has ended and effectively places that authority in the Governor General and Prime Minister:

The caretaker period begins when either the Government loses a vote of non-confidence or Parliament has been dissolved (either as a result of the Prime Minister asking for dissolution, or because of an election date set by legislation). It ends when a new government is sworn-in, or when an election result returning an incumbent government is clear.

Under this framework, then, Prime Minister Trudeau could make the same argument as Premier Ball: in effect, the Governor General Payette would release Prime Minister Trudeau from the Caretaker Convention on 20 November by swearing in cabinet ministers as part of a broad re-shuffle. But, if I can inject my own pedantry into this analysis, I would also question the accuracy of that interpretation. In Canada, the tenure of the Prime Minister or Premier determines the tenure of the Ministry as a whole, and that term only ends upon the resignation or death of the first minister. As such, PCO’s own Guide to Ministries Since Confederation clearly defines the 28th Ministry as beginning on 6 February 2006 when Governor General Michaelle Jean swore in Stephen Harper as Prime Minister and ending on 3 November 2015, when Governor General David Johnston accepted Harper’s resignation; in other words, this single tenure spans three parliaments elected in 2006, 2008, and 2011, and with several cabinet shuffles in between.[10] (But as of 23 October 2019, PCO has taken the irritating and coy decision to take down all information on the current 29th Ministry on the grounds that it is now “under revision.”)

I would also argue that PCO should subject this paragraph to some minor edits in the 4th edition of the Guidelines, because at the moment it covers eventualities that pertain in majority parliaments but not necessarily in minority parliaments. In this case, logically, the Caretaker Convention cannot end “when a new government is sworn-in” because a new government might not be sworn in for several years! The Trudeau government has remained in office since 4 November 2015 and will remain in office until he resigns, and the reshuffle which will take place on 20 November 2019 will not constitute a swearing in a new government but merely the re-organisation of an existing one. Therefore, I argue that the Caretaker Convention will apply until the House of Commons demonstrates its confidence in the Trudeau government (ideally, in November or early December 2019 rather than January 2020), and that the swearing in of new ministers in a reshuffled cabinet will not lift it on 20 November.

For all these reasons, the Caretaker Convention should remain operative in minority parliaments under the government (whether incumbent or new) can demonstrate that it commands the confidence of the House of Commons, either by winning a vote on the Address-in-Reply or another confidence matter like a money bill. If the House of Commons first meaningfully decides who governs, as opposed to the Governor General, then the Caretaker Convention should only lift if the House of Commons sustains the Trudeau government on a matter of confidence (like the Address-in-Reply or a money bill), and not when the Governor General swears in new cabinet ministers in a refreshed 29th Ministry.

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Notes

[1] CBC News, “Canada Votes 2019,” accessed 23 October 2019.

[2] Kathleen Harris, “Trudeau Rules Out Coalition, Promises Gender Equity in New Cabinet,” CBC News, 23 October 2019.

[3] Canada, Privy Council Office, “Tenth Ministry” in Guide to Ministries Since Confederation, 9 January 2018; The Globe, “Working Out the Details for Election New Interests: Understanding Reached Is There Shall Be No Distinction Between Liberal and Conservative Candidates Supporting the Union Government,” 13 October 1917, page 3.

[4] Canada, Privy Council Office, “Tenth Ministry” in Guide to Ministries Since Confederation, 9 January 2018; The Globe, “Working Out the Details for Election New Interests: Understanding Reached Is There Shall Be No Distinction Between Liberal and Conservative Candidates Supporting the Union Government,” 13 October 1917, page 3.

[5] National Post, “Trudeau Says New Cabinet To Be Sworn In On Nov. 20, No Plans for Any Type of Coalition,” 23 October 2019.

[6] Canada Gazette, Part II, Extra, Vol 153, No. 1 (Ottawa: Her Majesty the Queen in Right of Canada, 12 September 2019), 1-6.

[7] Canada Gazette, Part II (2008-09-08) Extra, Vol 142, No. 4 (Ottawa: Her Majesty the Queen in Right of Canada, 8 September 2008), 1-4; Canada Gazette, Part II Extra, Vol 142, No. 5 (Ottawa: Her Majesty the Queen in Right of Canada, 10 November 2008), 1-2.

[8] Financial Administration Act (Canada) R.S.C., 1985, c. F-11, section 30; Canada, Treasury Board Secretariat, “Governor General’s Special Warrants,” 19 October 2015.

[9] Newfoundland and Labrador, Executive Council Office, Guidelines on the Conduct of the Public Service During An Election Period (St. John’s: Cabinet Secretariat, Spring 2019), 3.

[10] Canada, Privy Council Office, “Twenty-Eighth Ministry” in Guide to Ministries Since Confederation, 9 January 2018.

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This entry was posted in Caretaker Convention, Constitution (Conventional), Crown (Powers and Office), Formation of Governments. Bookmark the permalink.

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