Removing the Virtual Right of First Ministers to Demand Dissolution: Electoral Reform, Minority Government, and the Democratic Deficit
Aucoin, Peter, Turnbull, Lori, Canadian Parliamentary Review
Five of ten provincial governments--New Brunswick, Prince Edward Island, Quebec, Ontario, and British Columbia--are considering changes to the way in which votes cast during provincial elections are translated into seats in their provincial legislatures. Federally, the Law Commission of Canada has recommended specific changes to the electoral system. This article considers one possible consequence of major electoral reform--the more frequent occurrence of minority or coalition government--and suggests a need to rethink certain traditional Canadian conventions of responsible government, namely the virtual right of Canadian prime ministers and premiers to dissolve the legislature and call elections when they see fit, even after their governments have lost the confidence of the legislature. It recommends new protocols to govern the respective powers of first ministers and governors general or lieutenant governors in the operation of responsible government.
The prospect of greater frequency of single-party minority governments (or coalition-party majority governments which are more susceptible to collapse into a single-party minority government than are single-party majority governments) demands a reconsideration of the virtual right of a first minister to call an election when her or his government is defeated on a vote of confidence in the legislature. Under the constitution, a prime minister or premier merely advises the Crown (the Governor General or Lieutenant Governor) to dissolve the House and thereby call an election. No constitutional expert denies that the Crown in Canada possesses a residual power to deny a first minister's request for dissolution. Yet, as the tradition has evolved in Canada, the first minister has assumed a virtual right to dissolution, even when their government is defeated in the legislature on a matter of confidence. There is one major exception to this right, but, even in this circumstance, unfortunately, there is an entirely unsatisfactory degree of uncertainty about what the Crown should do in granting or refusing dissolution.
At a time when most Canadian governments are addressing the so-called "democratic deficit", (1) a deficit that is partly due to a perceived excessive concentration of power in first ministers, the issue of a first minister's prerogative to call an election following a defeat in the legislature has not yet been addressed in the agenda of democratic reform that is now in fashion in several jurisdictions. Indeed, the one remedy to check the perceived excess of power vested in first ministers to can elections, namely the proposal to legislate fixed election dates, is amazingly silent on this most critical issue.
In British Columbia, a first jurisdiction to legislate fixed election dates, the statutory provision to accommodate the requirement of responsible government, that is, that an election may be called as a consequence of the defeat of a government in the legislature on a matter of confidence, provides for no protocol on the matter. Nothing is said about the fact that there is an alternative to an election in this circumstance. The alternative, of course, is a new government summoned by the governor and formed from the existing legislature without a new election. In this instance, the first minister of the defeated government will have already submitted her or his resignation to the governor, thus bringing that government to an end, or will do so when a new government is formed.
The Canadian Tradition
In Canada, the responsibilities of a Governor General or Lieutenant Governor (hereafter a governor) are now usually thought of as ceremonial. The principles of representative democracy, to say nothing of precepts of direct democracy, are deemed to have overtaken a governor's discretionary powers in the actual conduct of government. Given this understanding, it is generally assumed that a first minister's request for dissolution should almost always be granted. …