The numbers

On October 19, 2015, after almost ten years of Conservative rule, Canadian voters elected a majority Liberal government led by Justin Trudeau, eldest son of former Liberal Prime Minister Pierre Elliott Trudeau. The Liberals obtained 184 seats (and 39.5% of the popular vote) in a newly expanded House of Commons of 338 seats, well clear of the 170 seats required for a majority. The Conservative Party, with 99 seats (32% of the popular vote) forms the Official Opposition. The New Democratic Party, which had led the polls for much of the campaign and which served as Official Opposition in the last Parliament, returns to third party status and numbers more typical of its recent history: 40 seats (20% of the popular vote). The sovereigntist Bloc Québécois obtained 10 seats (5% of the popular vote) and the Green Party retained its single seat (with 1% of the popular vote). Overall voter turnout increased from 61% to 68.5%, a level not seen in Canada since the 1990s. Aboriginal Canadian voting increased dramatically, as much as 20% in some ridings according to early reports, and a record 10 Aboriginal MPs were elected to Parliament. Eighty-eight female MPs were elected, up from 76 in 2010. Women now form 26% of the total number of MPs in the Canadian House of Commons.

On November 4, on a remarkably warm and quite spectacular sunny autumn day, Justin Trudeau and his Cabinet were sworn in at Rideau Hall, the residence of the Governor-General of Canada, outgoing Prime Minister Stephen Harper having resigned earlier that morning. Trudeau’s Cabinet strikingly reflects the diversity of Canada itself. Firsts for a federal cabinet included gender parity (15 men and 15 women), an Aboriginal Minister of Justice and a Muslim-Canadian minister.

The symbols

The numbers and the weather hint at but cannot capture the extent to which Canada is now caught up in a wave of heady optimism, as if something that had been thought lost has now been happily rediscovered. Even those who did not vote for the Liberal Party on October 19 cannot help but notice the striking change of tone in the nation’s federal politics. So tight was the Harper Conservative’s control on executive power and a Harper-centred message that the Liberals distinguish themselves by their openness in almost all that they do. Justin Trudeau announced on election night that he would return to the “sunny ways” of former Liberal Prime Minister Wilfrid Laurier, the first French Canadian to hold that office. Laurier was referring to the fable in which the wind and the sun argue about which is stronger, and test their strength on a passing stranger whose coat they will try to remove. The wind blew violently, causing the stranger to wrap his coat more tightly around him. The sun shone brightly and warmly, eventually causing the stranger to remove his coat. Trudeau chose to emphasize “sunny ways” and “positive politics” in order immediately to distinguish himself from Harper’s wind-like methods. At the Cabinet swearing-in ceremony ministers arrived in a coach, like a sports team, rather than in the government vehicles normally seen moving ministers around Ottawa. They walked up from the gates of Rideau Hall to the building, waving to over an estimated 3 500 Canadians who had come to watch the pageantry. After the ceremony, the Prime Minister and his Cabinet met the public, drawn to Rideau Hall by the weather and the excitement of a new political era. After a first Cabinet meeting, ministers met with the press and showed no desire to return to Harper-like control of journalists’ questions. When asked by journalists why gender-parity was important to him, Trudeau hesitated and then replied simply, in a casual style reminiscent of his father, “Because it’s 2015”.

Constitutional Issues

Above and beyond the numbers and the symbols, there are a number of constitutional issues that are worth noting. Some of these arose during the election and risk being forgotten in the optimism of the present moment. Others represent the new government’s likely constitutional agenda.

• Issues regarding the possibility of a hung Parliament

When the 2015 Canadian election campaign began, it quickly became apparent that the three main parties were running neck and neck. Polls consistently showed the three parties clustered between 25 and 35 per cent of likely voter support. This made the prospect of a hung Parliament very likely. And just as in the UK earlier in the year, the thought of a hung Parliament elicited a huge amount of constitutional commentary.

Unlike the UK, however, Canada does not have a Cabinet Manual which helpfully summarizes the rules regarding matters such as government formation. The lack of such an authoritative document allowed party leaders to explain the constitutional rules, the conventions in this case, in ways that best suited their own interests. For example, since at least 2008 when his Government had been almost toppled by a coalition of parties, Prime Minister Harper had deliberately tried to inculcate his own interpretation of the fundamental rules of responsible government. Despite having adopted a different position in 2004 when he was in opposition, Harper after 2008 stressed, first, that whichever party received the most votes in an election was the “winner” of the election, and that, second, an attempt to dislodge the “winner” by means of a coalition or other party cooperation was somehow illegitimate.

Harper’s rewriting of British, Commonwealth and Canadian parliamentary rules was no doubt aided by the inevitable confusion between American and Canadian ways of proceeding. When Harper visited a newly-elected David Cameron in 2010, he noted to those willing to listen that, as leader of the party with the largest number of seats after the election, Cameron was properly the winner of the election in just the way Harper had always insisted was the case, conveniently ignoring the fact that Cameron’s ability to govern was dependent on a coalition partner. Harper was undoubtedly aware that his own party had no likely political allies, making it all the more important to de-legitimize coalitions and affirm the “winners” right to govern.

In an interview with the Canadian Broadcasting Corporation (CBC) during the 2015 election campaign, Harper stated, and it is worth quoting:

… I think you – you have to have the most seats in Parliament to go to the Governor General and that’s – you know, in this country in our system, we have what’s called a Westminster style system, um and we don’t – we don’t, you know, elect a bunch of parties who then as in some countries, get together and decide who will – who will govern. We ask people to make a choice of a government. And so I think that the party that wins the most seats should form the government.

Harper’s statement produced a great deal of criticism from constitutional commentators who tried to remind Canadians that the fundamental question turned not on winners and losers but on which leader could command the confidence of the House of Commons. They noted that, somewhat ironically, Harper was abandoning his right as Prime Minister to have a first attempt at obtaining the support of the House, even if his party did not come first in the polls. However, confusion continued to reign, as both the Liberal and New Democratic Party leaders essentially subscribed to the “winner” rule. This confusing state of affairs needs some explaining. Essentially the other leaders were speaking out of both sides of their mouths. On the one side, they were protecting themselves from criticism from Harper about the supposed illegitimacy of a sort of coalition-based coup d’état; and yet on the other side, they were stating clearly that they would in no circumstances support a minority Conservative government. The second statement meant, of course, that even a “winning” Conservative minority would fail to command the confidence of the House. Some commentators feared that Harper’s sense of the winner’s “right to govern” would cause him to respond to defeat of a Conservative Speech from the Throne by asking the Governor General to dissolve Parliament, thereby allowing the Conservatives to use their more plentiful campaign finances to fight a new election, possibly based on the illegitimacy of the other parties defeat of the rightful election “winner”.

We may never know what Stephen Harper and his advisors really planned in the event of a hung Parliament, or what the Governor General would have done in response. We have already learned, however, that there was discussion in the final, possibly desperate, days of the campaign to borrow David Cameron’s pledge not to run for re-election. On the basis of this scenario, some speculated that Stephen Harper might announce his intention to resign and delay the convening of Parliament until many months after the election while the party selected a new leader, the delay and the change of leader perhaps increasing the likelihood of convincing the Governor General to accede to a request to dissolve Parliament after defeat of a Speech from the Throne.

All this to say that there was a great deal of confusion regarding the constitutional rules applicable to minority situations, and considerable fear that Stephen Harper would use every ruse available to exploit that uncertainty in order to keep him or, at the very least, his party in power. It is striking to note that, earlier in the year, during the U.K. election, David Cameron had labelled an attempt by a second-place Labour to form a government in a minority situation as a “con-trick”. This produced a rebuke from none other than Lord O’Donnell, the former Cabinet Secretary, who reminded the Prime Minister that, according the Cabinet Manual (itself signed off by Cameron), the next Prime Minister would be the person able to command the confidence of the House, regardless of whether he “won” the election. Canadian constitutional commentators had made the same point over and over again, but perhaps due to the absence of an authoritative guide such as the Cabinet Manual, their protestations sometimes appeared to be lost in the noisy election chatter.

Clearly, before the next election, Canada must set down the relevant rules in its own version of the Cabinet Manual, perhaps with input from the country’s newly enlarged coterie of expert commentators. The Privy Council Office, Canada’s Cabinet Office, has made an important start in this direction by setting out the caretaker conventions.

• Important issues for a new Government

The new Liberal government is bound to have an expansive legislative agenda even if one simply considers the number of Conservative initiatives that the new government will want to terminate or put right. Part of the Conservative strategy to stay in power, in the absence of any likely political allies, was not only to emphasize that the party with the most votes “wins”, but also to build its power base around keeping the “core” voters happy and drawing in other voters strategically by means of cleverly designed wedge issues. The Conservatives, for example, appealed to their core voters by enacting tough law and order legislation, including many more mandatory sentencing minimums, in spite of the fact that these laws are ineffective according to experts, unneeded given declining crime statistics, and arguably unconstitutional given the protections in the Canadian Charter of Rights and Freedoms. They stoked fear of terrorism and produced security-focused legislation that was redundant, probably unconstitutional, and lacking in oversight mechanisms – all of which was likely to prompt concerted opposition protest, which could then be criticized as “soft on terrorism”. Foreign policy and foreign aid was too often based on electoral needs rather than the interests of the country as a whole. In some cases the Conservatives’ inaction was just as significant as action. The plight of Aboriginal Canadians was all too often not on their radar. And for the past ten year’s Canada has remained stalled in what could fairly be described as a state of climate-change denial. All of this and more is likely to change.

I need hardly add that the strategy employed by Stephen Harper’s Conservatives is available to any party on any point of the political spectrum so long as our political system appears to reward it. My argument in favour of a Cabinet Manual is not just a call to write down the conventional rules so that they are better understood. Conventions, as Ivor Jennings reminded us, are based on precedents and actors’ behavior; but there is also a reason for the rule, most often democracy — ideally the best sort of democracy possible, and one which does not leave itself open to manipulation and abuse.

It cannot be good for democracy if a party is tempted and able to gain and maintain power by appealing only to roughly a third of the electorate. Where parties’ policies and values substantially overlap this is perhaps a less serious situation, but where a party with few shared policies or values governs with the support of and then on behalf of such a narrow constituency, that is bad for both democracy and the rule of law. Laws which are enacted to appeal to a party core rather than to respond to the real needs of all members of society do not commend themselves to the sort of respect that those who believe in the rule of law wish to promote. And so, clarifying the conventional rules in a Cabinet Manual is just a start. Pressing realities such as climate change and justice for Canada’s indigenous peoples have to be addressed urgently. Justin Trudeau’s Liberals have committed themselves to electoral reform, and that would seem to be a must as well, in order to avoid the temptation to abuse the political system in the manner just described. If movement towards some version of proportional representation seems too radical a step to take, then adoption of the alternative vote or ranked ballot is called for as soon as possible. This seems to be the direction in which the Liberals are heading at the moment. It is to be hoped that they keep on track.

The new Government will also have to consider reform of the Upper House. The Harper Government’s attempts to do so were deemed unconstitutional by the Supreme Court of Canada. Stephen Harper had subsequently taken the ill-advised step of announcing that he would not even consider making new appointments to the Senate, a position that is presently under legal challenge. Justin Trudeau is likely to propose more moderate reforms, perhaps an advisory panel to make merit-based non-party-affiliated appointments to the Upper House, essentially populating the Red Chamber with cross-benchers.   News reports indicate that these proposals have already been deemed constitutionally viable by the expert advisors at the Department of Justice.   Given the present Conservative majority in the Senate, it is clear that the Liberal government will have to make the Senate, and Senate reform, a priority.

The Government House Leader has confirmed that Parliament is to be recalled in early December when the Governor General will read the Speech from the Throne setting out the new Government’s priorities. Those interested in Canadian constitutional development will want to keep an eye on what happens then.

Peter C. Oliver is Full Professor at the Faculty of Law, University of Ottawa and Co-Director of the Public Law Group. He would like to thank UKCLA Canadian correspondent, Grégoire Webber, and his colleagues Adam Dodek and Carissima Mathen for helpful comments and suggestions regarding this post. He is of course responsible for the opinions set out here and for any remaining errors and omissions.

(Suggested citation: P.C. Oliver, ‘Canada: Election 2015’ (9th Nov 2015) (available at https://ukconstitutionallaw.org/))