Casting and Counting Ballots
Canadians not amongst those who voted in the advanced polls in record numbers shall go to the polls today (myself included) to elect their MPs for the 44th Parliament. However, Elections Canada has cautioned that we might not know the final results of this election, and the winner in each of the 338 ridings, for up to 5 days (26 September), because of the logistics of this pandemic election. Elections Canada explained in a recent press release:
“Given the number of local special ballots we have received, we expect most of the country’s 338 ridings to report the results of their local special ballot count on Tuesday, September 21, and the vast majority to finish counting by Wednesday, September 22. However, due to high volumes or logistical challenges, the full count may take up to four days in some ridings.”
While Elections Canada can start counting ballots cast in local advance polls on election night, and the mail-in ballots and ballots cast by Canadian Armed Forces personnel up to 14 days before polling day (so as of 6 September), it cannot start counting local mail-in ballots (from locals who vote by mail within their own ridings) until tomorrow, 21 September. It is possible that these could tip the balance in some closely contested ridings. And given that the opinion polls taken throughout this campaign from 15 August to 19 September have shown a consistent statistical dead heat between the Liberals and Conservatives, with each hovering between 31 and 34%, we seem poised to elect another minority parliament today – so close races could affect the overall outcome of the general election and make the difference between a plurality or a majority for one party over another.
The incumbent government remains in office until the incumbent prime minister tenders his resignation and that of his cabinet colleagues to the Governor General. Justin Trudeau’s “term” as prime minister began on 4 November 2015 and shall continue until he resigns. He has remained prime minister throughout this election and remains so now. The party standings shall determine whether he can continue serving as prime minister and meet the upcoming 44th Parliament later this fall.
Our tradition of strong party discipline in Canada means that if one party wins an outright majority of the seats in the House of Commons – at least 170 in this case ((338/2)+1) – then that party shall form government. If the Liberals win a majority, then the Trudeau government will simply continue in office. If the Conservatives win a majority, then Trudeau will have to resign the premiership so that Her Excellency Mary Simon can then invite Erin O’Toole to form the next government and appoint him prime minister.
However, most opinion polls consistently showed the Liberals and Conservatives locked in tie in the lower- to mid-30s throughout this campaign, which would make a majority parliament unlikely.
If we end up electing another minority parliament, then as a first step Prime Minister Trudeau and the Liberals will remain in office. The initiative rests with the incumbent prime minister. Depending upon the exact and final party standings and the statements of the leaders of the other political parties, Trudeau will decide whether to announce his intention to resign, or, alternatively, his intention to remain in office by working with – most likely – Jagmeet Singh and the New Democrats.
Several politicians over the years have argued that the party which wins the plurality of seats in a minority parliament should form government. For instance, in 2010, Nick Clegg, then leader of the Liberal Democrats in the United Kingdom, said: “Whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to seek to govern, either on its own or by reaching out to other parties.” In 2019, Andrew Scheer, then the leader of the Conservative Party of Canada, said much the same: “the party that wins the most seats should be able to form the government.” Scheer added: “the other convention in modern Canadian politics is that a prime minister who enters into an election and comes out of that election with fewer seats than another party, resigns.”
There are good precedents to support Clegg’s and Scheer’s claim. Generally speaking, the party which wins the plurality of seats in a minority government ends up forming government – but this is not necessarily true. In other words, even if the Conservatives win a plurality of seats, the Trudeau government could still remain in office by striking up a confidence-and-supply agreement with the New Democrats, who would then support the Trudeau government and vote with the Liberals on supply and other key policies in exchange for some input over government bills, or by forming a coalition that would see some New Democratic MPs join cabinet.
Many precedents in Canada (some old and some recent) show that the incumbent prime minister can decide whether to meet a minority parliament and test the confidence of the new House of Commons or, alternatively, whether to resign and allow the Governor General to appoint a new prime minister before summoning the new parliament. Scheer alluded to the fact that most incumbent prime ministers whose parties lose their plurality do decide to resign, but they do not necessarily have to resign.
Federal Precedents, 1925-2006
The only federal precedent in which the incumbent prime minister opted to remain in office after another party won a plurality in a minority parliament occurred in 1925 – and with such considerable controversy that it has never happened again. On 29 October 1925, Canadians returned 115 Conservatives, 100 Liberals, and 22 Progressives, 2 United Farmers of Alberta, 2 Labourites, and 4 independents out of 245 MPs. The Liberals lost 18 seats relative to the previous election in 1921, and the Conservatives won 46.1% of the popular vote and came within 9 seats of a majority. Mackenzie King even lost his own seat in all the turmoil. But despite all this, King decided to stay in office and test the confidence of the 15th Parliament. This generated ferocious opposition in the conservative press and ultimately sowed the seeds for the King-Byng Affair in June 1926. But Prime Minister King stated unequivocally that “the only manner in which rule by the people could be made possible was to allow parliament to decide who was to govern.” King also restrained his incumbent government to a caretaker (probably on the insistence of Governor General Lord Byng), declaring: “Until Parliament meets, the Government will refrain from making any appointments other than those essential to carrying on the public business.” Meighen denounced King’s constitutionally correct formulation as a “usurpation of power” and claimed a popular mandate to govern. Meighen argued that King had clung to power “in defiance of a heavily adverse verdict from the people of Canada.” Frankly, it is unthinkable that a prime minister who lost its own seat would remain in office under the same circumstances in the early 21st century.
In 1957, incumbent Liberal Prime Minister Louis St. Laurent decided to resign one week after the election and after the overseas military ballots had been counted. John Diefenbaker had led the Progressive Conservatives to a plurality but in a very close margin in this minority parliament: 112 seats to the Conservatives, 105 to the Liberals, 25 to the Cooperative Commonwealth Federation, and 19 to Social Credit. The Liberals could have formed a coalition or struck a confidence-and-supply agreement with the Co-operative Commonwealth Federation (ancestor of the New Democratic Party), with their combined 130 seats, though the Progressive Conservatives could also have combined forces with the right-wing Social Creditists for a total of 131 seats. The 4 independents could have determined who governed. But the Liberals had by 1957 remained in government uninterrupted for the previous twenty-two years, and the momentum had gone against them; St. Laurent opted to resign. Diefenbaker called a snap election in 1958 after newly-minted Liberal leader Lester Pearson suggested that the single-party minority government simply resign, and led the Progressive Conservatives to the largest landslide in Canadian history up to that point. (Brian Mulroney beat that record in 1984).
In 1962, the erratic “Dief the Chief” reduced his the Progressive Conservatives to a plurality, but he remained in power. The Conservatives won 116 seats versus 100 to the Liberals; the CCF returned 19 MPs, and Social Credit saw 30 of their candidates elected. In that case, the right-wing block won 146 versus the 119 to the left-wing parties. But that did not prevent Lester Pearson from tabling a motion of non-confidence in the Diefenbaker government in February 1963 after several ministers resigned; the CCF and Social Creditists sustained the motion, and the House voted 142 to 111 against the government. In that election of 1963, Lester Pearson led the Liberals to a strong plurality of 129 (133 made a majority at the time) opposite 17 New Democrats, 95 Conservatives, and 24 Social Creditists. Diefenbaker resigned and made way for Pearson.
Canadians elected another minority parliament in 1972 in the closest results yet between the two largest parties: 109 Liberals, 107 Conservatives, 31 New Democrats, 15 Social Creditists, and 2 independents. Pierre Trudeau remained in office as prime minister and, like Pearson before him, depended upon the New Democrats for a majority in the House of Commons.
Canadians elected another minority parliament in 1979. During the Leaders’ Debate in 1979, Joe Clark declared, in what has become an infamous blunder, “We will govern as though we have a majority.” And Clark’s full quote reveals that he necessarily believed that the party which wins the plurality of seats should be allowed to form government:
“If there is a minority government — and I very much hope that there won’t be — I very much hope that we will be given the opportunity to form a majority government. If there is a minority, I intend to govern entirely on the program that the Progressive Conservative Party has installed forward, not on somebody else’s program. We will be governing as though we have a majority, although it would be far easier, naturally, far more effective, for the system, I believe, if we had the certainty of there being four years in office for a government in which to plan.”
At first, Clark appeared disappointingly prescient rather than foolish; in May 1979, the Progressive Conservatives won 136 seats, while the Liberals only returned 114 MPs. The New Democrats and Social Creditists rounded out the House of Commons with 26 and 6 seats, respectively. Like 1957, this produced an incredibly close split between the two right-wing parties and the two left-wing parties, 142 vs 140. Clark went down in a spectacularly stupid, unnecessary, and obstinate defeat in December 1979 when the Commons voted against his government’s budget because it would have imposed a carbon tax of 18 cents per Imperial Gallon on gasoline.
On 23 January 2006, Stephen Harper’s Conservatives won a plurality of seats, and Prime Minister Paul Martin took to the podium that night to announce that he would resign the premiership and as leader of the Liberal Party instead of meeting the new parliament; Governor General Michaelle Jean appointed Stephen Harper as Prime Minister on 6 February 2006. Harper’s Conservatives governed for the next two years with the ad hoc support of either the New Democrats, Bloc Quebecois, or even the Liberals, depending on the issue, until he called a snap election in August 2008.
The balance of federal precedents does show – with one notable exception in 1925 – that the incumbent prime minister resigns if his party loses its plurality to another in a minority parliament.
Yet these precedents still do not necessitate resignation under all circumstances where an opposition party wins the plurality of seats in a minority parliament, because other political parties holding the balance of power in a minority parliament could still choose to extract some concessions from and lend their support to the incumbent government because these parties combined could form a parliamentary majority.
The argument for resignation also seems strongest when the incumbent prime minister led a party which had remained ensconced in power for over a decade, like Paul Martin in 2006 (the Liberals had governed for 13 years), Gordon Brown in 2010 (New Labour had also been in power for 13 years), and Christie Clark in 2017 (where the Liberals had been in government for 16 years). The incumbent prime minister’s decision whether to resign or remain depends heavily as well on the number of parties elected to the House of Commons, their relative strength toward one another, and whether, ideologically and programmatically and politically, the constellation of smaller parties can support the beleaguered incumbent government or not. For instance, the New Democrats would almost certainly never support the Conservatives because of the ideological and programmatic differences between the parties, while the Bloc Quebecois might under some circumstances be more inclined to support a Conservative government.
If the Conservatives win a plurality of seats today, then the question of who forms government in the 44th Parliament could come down to the standings of the other parties, especially the New Democrats and Bloc Quebecois, and what Jagmeet Singh and Yves-Francois Blanchet, want to do. Yukon’s general election earlier this year could provide an instructive precedent, too: in this case, the incumbent Liberals ended up tied with the Yukon Party (equivalent to the Conservatives) at 8 seats each; the New Democrats held 3 seats and the balance of power and decided to form a confidence-and-supply agreement with the incumbent Liberals, keeping Premier Sandy Silver in office with a working majority of 3 until 2023.
I shall watch these results with great interest.
- Justin Trudeau Remains Prime Minister But Subject to the Caretaker Convention (October 2019)
- Andrew Scheer Is Not Exactly Wrong: Forming Governments in Minority Parliaments (October 2019)
 Sarah Turnbull, “Elections Canada Says It Could Take Up to Five Days to Count Every Last Ballot,” CTV News, 15 September 2021.
 Elections Canada, “Election Day Reminders for Electors: News Release – the Federal Election Is Today,” 20 September 2021.
 John Paul Tasker, “Scheer Says ‘Modern Convention’ Means Trudeau Must Quit if He Doesn’t Win the Most Seats,” CBC News, 17 October 2021.
 F.C. Mears, “Promise Is Given to Refrain from Making Appointments,” The Globe, 4 November 1925.
 F.C. Mears, “‘Usurping of Power,’ Meighen Charges,” The Globe, 5 November 1925.
 Peter Russell, Two Cheers for Minority Government: The Evolution of Canadian Parliamentary Democracy (Toronto: Edmond Montgomery Publishing, 2008), 25-26.
 Russell 2008, 29-30.
 Parl Info, “26th Parliament: Party Standings in the House of Commons,” accessed 20 October 2019.
 Parl Info, “29th Parliament: Party Standings in the House of Commons,” accessed 20 October 2019.
 Paul Martin in CBC Archives, “Paul Martin Concedes Defeat, Announces Resignation,” 23 January 2006. Office of the Governor General, “Date for the Swearing-in of the Honourable Stephen Harper as the 22nd Prime Minister and of his Cabinet,” 26 January 2006.
 CBC News, “Yukon Liberals, Reduced to Minority, Embrace the NDP,” 28 April 2021.