Death by Deadlock: The Fate of the Gallant Government

By James Bowden and Lyle Skinner 

Table of Contents


Executive Summary

“Our caucus met today and agreed that out of respect for New Brunswickers, we must avoid an unnecessary election and not face the house without a candidate for Speaker” – Liberal acting Government House Leader, Lisa Harris

Like a game of chess, have the results of the 2018 New Brunswick elections created a Legislative Assembly that is in a true stalemate that can produce no winner and must be dissolved prompting a new election? Or is the minority Gallant Government in fact in political checkmate, where any maneuver ultimately results in its defeat?

Our analysis shows that Gallant is likely in check rather than a stalemate but that he faces the strong possibility of being put into checkmate. From this, he only has two rational choices with a limited chance of success:

1) Not allowing any Liberal MLAs to become candidates for Speaker. As no other party will put forward a candidate, this will cause the Assembly to go without a Speaker and be unable to conduct any other business. The Assembly would become deadlocked. Historical precedents shows that Gallant will remain Premier, and that the Lieutenant-Governor should allow a reasonable amount of time for the Assembly to attempt to elect a Speaker. This process could allow for a political resolution. In the meantime, within the Assembly, Gallant could continue to negotiate for support from the Alliance and Greens to survive a Throne Speech vote. Outside, Gallant could use the procedural confusion to try and shift public opinion towards supporting his Government.

2) Putting a Liberal MLA forward as Speaker and then presenting a Throne Speech for the purposes of political posturing, daring the other parties to vote against it. As the precedents from Ontario in 1985 and British Columbia in 2017 demonstrate, this option is political suicide for a government wishing to remain in power.

Our article provides an overview of the political circumstances resulting from the recent election. We use constitutional principles, historical precedents, notably deadlocked Assemblies that were unable to put forward a Speaker (Prince Edward Island in 1859 and Newfoundland in 1908-09) to show that only Premier Gallant, and not the Legislative Assembly, can cause an early election by advising Lieutenant-Governor Roy-Vienneau to dissolve the Legislature. However, we will show that under these exceptional circumstances in New Brunswick, the Lieutenant-Governor is not bound to accept the advice from the Premier. Instead, depending on the path that Premier Gallant chooses, he will be forced to resign as Premier, enabling Lieutenant-Governor Roy-Vienneau to appoint Blaine Higgs as the New Brunswick’s 34th Premier since Confederation.

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Posted in Caretaker Convention, Confidence Convention, Constitution (Conventional), Crown (Powers and Office), Formation of Governments | 3 Comments

The Dominion of Canada in 1897

Political Map of the Dominion of Canada, 1897

Map of the Dominion of Canada in 1897

My thesis supervisor Rand Dyck gave me a copy of Handbook on Canada, an anthropological compilation published in 1897 by the British Association for the Advancement of Science. This book groups together various authors who had written on Canadian natural history and political history, including an early report from the Geological Survey of Canada and one of John George Bourinot’s essays on Canadian political institutions. The front matter includes this detailed fold-out political map of the Dominion of Canada, as it then existed.

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Posted in History of British North America | 1 Comment

Repealing a Statute While the Legislature Is Prorogued: Henry VIII Sleeper-Cell Clauses in Ontario

The Journal of Parliamentary and Political Law has just come out with its latest issue in which a short article of mine appears.

Also, I’ll have to find out whether David Bowden and I are related.

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Posted in Articles, Crown (Powers and Office), Prorogation, Separation of Powers | Leave a comment

Lawyers Despise the Notwithstanding Clause – Which Shows Why It Is Good

Marie Henein, probably now the most famous and prominent defence attorney in Canada, has written an open letter to Premier Ford in The Globe and Mail which corroborates the argument that I put forward here on Parliamentum yesterday: the Notwithstanding Clause has come to seen as unconstitutional in the British sense of the word despite being part of the Canadian Charter of Rights of Freedoms.

In a gleefully patronizing tone, Henein admonishes Ford for not understanding Canada’s system of government and accuses him of having supplanted the rule of law with a form of personal rule worthy of a Latin American caudillo, eastern European autocrat, or a Stuart king.

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Posted in Constitution (Written), Notwithstanding Clause, Separation of Powers | 6 Comments

Some Parts of the Constitution Are More Constitutional Than Others


The constitution cannot be unconstitutional. It follows therefore that one part of the constitution cannot be used to strike down or nullify another part of the constitution. This tautology, fittingly, sounds very obvious and simple – yet it still bears repeating with respect to the Constitution of Canada, a confounding Cherub (like that in the Book of Ezekiel) composed of disparate, even contradictory, parts that ought not fit together yet must fit together and reconcile with one another.

On 10 September 2018, Justice Belobaba of the Ontario Superior Court of Justice struck down the provisions of the Better Local Government Act reducing the size of Toronto City Council by half and using the federal and provincial electoral districts as the basis for the City of Toronto’s new wards, as unconstitutional; Premier Ford, in turn, announced that the government will introduce a bill re-acting these provisions under the Notwithstanding Clause. This recent controversy has brought to the fore an interesting and perhaps unique feature of Canadian constitutionalism: all parts of the Constitution of Canada are constitutional, but some parts are more constitutional than others.

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Posted in Amending Formulas, Constitution (Conventional), Constitution (Written), Notwithstanding Clause, Separation of Powers | 1 Comment