Government formation: formal rules, informal customs

With the Ontario election underway, we’re back to discussing the rules of government formation in Canada.

Mark Jarvis has a useful summary of the rules here.

Hugo Cyr has a comprehensive discussion of the conventions here.

In addition to these resources, I’d highlight the following points.

The Premier stays the Premier until she resigns or is dismissed by the Lieutenant Governor. This is the reason that first ministers have the right to meet the legislature first, regardless of the results of an election. The Premier can always try their chance at meeting the legislature to demonstrate or regain confidence. The Premier can even do this if they know they’re going to lose a confidence vote. Until they resign, they remain the Premier and therefore have the right to test confidence.

The Lieutenant Governor, meanwhile, won’t dismiss a Premier unless they’ve lost a confidence vote, they still refuse to resign, and there’s an alternative government that can carry confidence. (Needless to say, that’s never happened in Canada.)

Now, it’s customary for Canadian first ministers to resign after an election is another party has won a majority of seats. And it’s also customary for first ministers to resign if another party has won a plurality of seats. But it’s not a constitutional convention that a first minister must resign if another party wins a plurality of seats during an election –despite what the Supreme Court suggested. In that situation, the first minister still has the option of trying to hold confidence by working with a third party. Here again, this is not all that common in Canada, but it’s possible.

This discussion may seem academic, but it’s important. As we’ve seen already in this campaign and in the last election in British Columbia, political parties will distort how our system of government operates for political gain or survival. If the Ontario election doesn’t result in a majority, the party that has the most seats will surely declare victory and argue that the ‘will of the people’ must be respected. However, the two other parties may be able to come to arrangement that would keep the party with a plurality of seats from governing. This may not be Canadian custom, but it is entirely constitutional. 

Don’t let any partisan tell you otherwise.


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