Cabinet-making in Canada

The wake of the 42nd General Canadian election the House of Commons has returned a majority Liberal government under the leadership of Justin Trudeau. As we discussed earlier, one of his first priorities is the appointment of the 29th Canadian Ministry and what will become the Liberal government cabinet (set to happen on 4 Nov 15 with a Swearing-in Ceremony at Rideau Hall). These collective appointments will become the executive arm of government, one of the most important parliamentary institutions, so let’s take a look at what goes into building a modern Canadian cabinet, and the procedure and law that surrounds its creation.

House of Commons Procedures and Practice 2nd Ed explains executive authority as “vested in the Sovereign and exercised by the Governor in Council.” It goes on to further explain that this authority is exercised “by and with the advice and consent of the Queen’s Privy Council for Canada; in practice, it is the Governor General acting with the advice and consent of the Prime Minister and Cabinet.” Privy Councillors are appointed by the Governor General on the advice of the Prime Minister and these appointees are styled “Honourable” for life (the Prime Minister being styled “Right Honourable” for life).

It is important to distinguish between the Ministry, the cabinet and the Privy Council. From the House of Commons Procedure and Practice 2nd Ed:

Although the terms “Ministry” and “Cabinet” are commonly used interchangeably, in fact a Ministry is composed of both Cabinet Ministers and Secretaries of State. Most Cabinet appointees are designated Ministers in charge of government departments (or ministries) although some may be given responsibility for an important policy portfolio.[156] Secretaries of State are assigned to assist Cabinet Ministers in specific areas within their portfolios.[157] They are members of the Ministry (sworn to the Privy Council) but not of Cabinet.[158] In addition, the Parliament of Canada Act provides for the appointment of Parliamentary Secretaries (Members who assist Cabinet Ministers but who are not members of the Ministry).[159] Finally, provision may be made for the appointment of an Acting Minister in the event a Minister is absent or incapacitated, or the office is vacant.

The appointments made in the formation of the Ministry and cabinet represent one of the most important decisions made by a governing Prime Minister. Justin Trudeau has an 184 member strong caucus from which to draw his Ministry and build a cabinet. He has already begun to inform Canadians on how he will approach the formation by the inclusion of 50/50 men and women and a reach out to aboriginal Canadians. Considering that the Liberal party swept through 4/5 Canadian regions, Trudeau will have a significant pool of people to draw experience and representation on his cabinet. House of Commons Procedure and Practice 2nd Ed explains the Prime Minister’s prerogative regarding the formation and composition of the cabinet:

A Prime Minister’s choice of Ministers is influenced by political considerations respecting, for example, geography, gender and ethnicity. However, the Prime Minister alone decides on the size of the Ministry and what constitutes an appropriate balance of representation.

Swearing-in ceremony of Canada's new Prime Minister, The Right Honourable Stephen Harper, and his cabinet at Rideau Hall. Photo by Julie Oliver, Ottawa Citizen. Canwest News Service.
Swearing-in ceremony of Canada’s new Prime Minister, The Right Honourable Stephen Harper, and his cabinet at Rideau Hall. Photo by Julie Oliver, Ottawa Citizen. Canwest News Service.

The exact size of Canadian Ministries and cabinets have fluctuated and for the most part have grown over the course of Canada’s history. Pierre Trudeau remarked in his Memoirs in a caption for a photo showing his cabinet that the photo was from a “time when cabinets could fit around a single table.” In the featured image for this post, Prime Minister John Diefenbaker is seen with Her Majesty Queen Elizabeth II, Prince Philip, Governor General Vincent Massey and the entire 18th Canada Ministry (National Film Board of Canada, MG01/XVII/JGD438). The inline photo is from the swearing-in ceremony of the 28th Canadian Ministry chaired by Stephen Harper. You can see the significant difference in size and visible representation from 1957 to 2006.

Post-election, What Happens Now?

The results of 42nd Canadian General Election. Liberal candidates from across the country were elected to 184 seats in the House of Commons, earning a majority government under the leadership of Prime Minister in-waiting Justin Trudeau. The Conservative Party of Canada saw candidates elected in 99 ridings and will form the Official Opposition in the 42nd Parliament of Canada. Trudeau will (within the next two weeks) appoint the 29th Canadian Ministry from among his 184-strong caucus. The NDP was reduced to third party status with 44 seats and the Bloc next in line with 10 seats. Green Party leader Elizabeth May held her Saanich–Gulf Islands riding on Vancouver Island. But the results of this election are probably not news to you. The question is what happens now that the election has finished and we have a new majority government in Canada?

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Canada election results 2011/15. BBC News.

First let’s understand what has happened in parliament as a result of the election. Most importantly, the 41st Parliament of Canada has given way to the 42nd Parliament. This is the largest parliament in Canadian history with 338 seats distributed evenly across ridings roughly equally representing over 35-million electors. The direct result of casting a ballot on 19 Oct 15 was the formation of this parliament. This is why you were not handed a ballot with the name Justin Trudeau, Thomas Mulcair, Stephen Harper or Elizabeth May on it (unless you lived in their particular riding of course).

As a result of the formation of the 42nd Parliament of Canada, a new ministry is now required. Through responsible government, the Governor-General is compelled to appoint persons who have been duly elected into parliament to form the Canadian Ministry and who gets appointed to lead it depends on who can command the confidence of the House of Commons. Once a new parliament is formed, convention dictates that the Governor-General assess parliament to determine the potential requirement for new ministry (or the continuance of the current) and designates a Prime Minister, if required. Justin Trudeau is currently technically the Prime Minister in-waiting because he has not been designated by the Governor-General (that I know of as of this being posted), but that is a really technical detail; Justin Trudeau will lead the next ministry and will become Prime Minister with a majority government. During this entire period, the current Prime Minister has not been relieved of his responsibility as the leader of the country. Stephen Harper at the time of this publication is (was) still Prime Minister of Canada and leader of the 28th Canadian Ministry. Justin Trudeau has indicated that he will appoint a new cabinet in two weeks which will start with a swearing-in ceremony at Rideau Hall overseen by the Governor-General of Canada. This will be the official start of the 29th Canadian Ministry under Justin Trudeau.

This all might seem very technical but there are some implications for our country. Suppose, for example, that something tragic happened in the country, no doubt Stephen Harper would be legally permitted to issue orders if required. He might listen to input from Trudeau, as the Prime Minister designate, but whether there is an exact requirement is legally dubious. On the flip side, suppose for some reason Justin Trudeau was unable to fulfill his duties as an MP and thus as Prime Minister (for example, a major illness suddenly discovered). A new person could be appointed by the Liberal caucus and eventually elected by the party membership to take his place. This could happen at any time during the ministry as well, however it would start a new ministry (and Trudeau would be required to resign). But these are topics for other posts, the important thing is that the Prime Minister from a legal standpoint is just the person who can marshal command of the House of Commons (all major federal parties have developed internal mechanisms for how this person is elected and legitimized within the party and parliament through convention).

Now, we may not know to what extant Harper may still exercise power as out-going Prime Minister but we do know that Trudeau and his soon-to-be ministry are moving in on parliament. In the coming two weeks Harper will move his office out of the Langevin Block (home of the PMO and Privy Council) and Justin Trudeau will move in. There are already indications that public servants at the Privy Council (the bureaucratic arm of the PMO) have begun to comb through the Liberal platform to present options on how to implement their promises. In short order, briefing material will be created for each soon-to-be-appointed minister that will include a letter from the leader explaining his vision for their portfolio and sometimes a letter from the Clerk of the Privy Council of Canada. Most of this material has most likely already begun to be put together by civil servants across the country.

Trudeau himself will be busy combing through his caucus to build a representative government. Cabinet-making in Canada has always been a particular art. All of the way back to the United Province of Canada when cabinet required an absolute balance between French and English (often with two leaders speaking different policy agendas). In modern political times the cabinet must still be balanced with representation from Quebec, but also from Eastern Canada (where the Liberals preformed very strongly), Central Canada and Western Canada. The cabinet will also have to include a proportional number of woman and aboriginals reflecting the values of Canadians. The Liberal government will need new-Canadians and people of all perspectives in order to build a cabinet which is representative of the people. And we also cannot forgot competency, which is required of every minister in order to quarterback the leaders’ vision for the government and implementation of policy within their respective departments.

So the short answer to the question of what is happening post-election is that Harper remains Prime Minister until the new ministry is sworn-in and the Liberals, in particular Justin Trudeau, are extremely busy.

Image of Trudeau from CBC News. Election 2015/2011 results from BBC News.

Could Harper Hold on to Power Without a Plurality of Seats in the House of Commons

…the short answer is yes. The long answer is the purpose of this post. The question is, could Prime Minister Stephen Harper hold on to power without earning a plurality of seats in the House of Commons on Monday, 19 Oct 15? Before we can answer the question, however, there are a few misconceptions we have to clear up and a few terms we have to define and better understand.

The Ministry. House of Commons Procedure and Practice 2nd Ed describes the Ministry as “exercis[ing] the practical functions of government, [which] has no fixed maximum duration. Its duration is measured by the tenure of its Prime Minister and is calculated from the day the Prime Minister takes the oath of office to the day the Prime Minister dies, resigns or is dismissed.” Stephen Harper is the Prime Minister of the 28th Canadian Ministry which was sworn in with the confidence of the House of Commons on 6 Feb 06. The Ministry continues regardless of the outcome of an election and thus the composition of each particular parliament. The 28th Canadian Minister continues at the time of this being published.

The Parliament. House of Commons Procedure and Practice 2nd Ed defines parliament as the period “between elections during which the institution of Parliament exercises its powers—is calculated from the date set for the return of the writs following a general election to its dissolution by the Governor General.” There is also a five year limit set on any part in accordance with the Constitution Act and that there must be a sitting once every 12 months. The parliament which just ended was the 41st Parliament. Stephen Harper has been Prime Minister through three distinct parliaments (two being  hung parliaments) which combined had seven separate sessions.

A Session of Parliament. A session exists within a parliament. Every parliament convenes in the first session of the respective parliament with a Speech from the Throne, an election of a Speaker of the House of Commons and the swearing-in of Members (this opening is often made distinct from others in calling it the opening of parliament). Subsequent sessions open with all of the fanfare of the first session, however do not include the election of a Speaker and the swearing-in of Members. The ending of one session into another is called prorogation of parliament and it is trigged by the Governor-General on the advice of the Prime Minister.

Hung Parliament. Often referred to as a minority government parliament. A hung parliament is one in which a clear option for the Governor-General in terms of who will be invited to form government is not present. In a hung parliament, the sitting Prime Minister retains the Ministry and carries on in government (the incumbency convention) but often in modern times a new Ministry is formed by the leader of the party with the plurality of seats in the House of Commons (if not the sitting Prime Minister).

On 2 Aug 15 the 41st Parliament came to a close when the writs were dropped by the Governor-General David Johnston on the advice of Prime Minister Stephen Harper. It started the longest campaign in modern Canadian political history. On 19 Oct 15, Canadians will head to the polls and cast ballots for candidates in the largest number of elections ever to take place in the country– 338 in total. From all of those elections, partisan (or independent) candidates will earn seats in the House of Commons– Canada’s legislature– and the 42nd Parliament will be composed. Out of the composition of the 42nd Parliament one of two things will happen; (1) the 28th Canadian Ministry will be invited to continue to govern or (2) the 29th Canadian Ministry will begin with a new leader being invited to form government. The first situation could happen if the Conservative Party of Canada receives a majority of seats in the House of Commons, a plurality of seats in the House of Commons or, in a hung parliament and without a plurality of seats, invokes the incumbency convention. The second situation could happen if, in a hung parliament and without a plurality of seats, Stephen Harper steps down as Prime Minister and the Governor-General invites the leader with the plurality of seats to form government or if another party wins a majority of seats in the House of Commons.

Let’s use the most recent poll numbers and seat projections from Eric Grenier at threehundredeight.com to understand a plausible situation where Stephen Harper would legitimately and constitutionally hold on to power without having a majority of seats or a plurality of seats in the House of Commons. Suppose a Conservative upset resulted in that party taking the high end of 139 seats to the low end of the Liberals with 124 seats. Regardless of how many seats the NDP, Green Party and Bloc have the 28th Canadian Ministry would be standing to the right of the Speaker during the opening of the 42nd Parliament. Whether or not their Speech from the Throne would pass is another question, and as a matter of confidence it would mean the end of that Ministry. However, the opening itself could be delayed up to an entire year after the closing of the last Parliament, specifically 2 Aug 2016. Even if the NDP and Liberals decided to merge and form a majority of seats in the House of Commons, they would have to convince the Governor-General that the incumbency convention should not stand, which would be a tough sell.

Another example where Stephen Harper could hold on to power is more sinister in terms of how Canadians have come to understand the function of the House of Commons and the formation of government (which, for the record, is largely misinformed) but I would argue is more plausible than the first situation (at least in terms of the composition of parliament as a result of the election). Let’s say it goes right down the middle of Mr. Grenier’s seat count projection. The Liberal Party taking 149 seats, the Conservative Party 118 and the NDP 66 (again, it wouldn’t matter how the other parties came out). In this instance the 28th Canadian Ministry would continue as per the incumbency convention. There is a snag here however, as all three federal leaders have stated that they believe the statement that the leader with the plurality of seats gets first crack at forming government to be true and so, politically speaking, Harper would face pressure to step down (thus keeping the incumbency convention intact as well). However, Stephen Harper could decide to not step down, remain Prime Minister and delay the opening of parliament to buy time. This is highly unlikely, but would be well within the bounds of the Constitution.

The situation becomes even more aggravated if we close the gap between the Conservatives and the Liberals in terms of seat count (most likely how the chips are going to fall in my opinion). Imagine the Liberals taking 130 seats to the Conservatives taking 128 seats. Stephen Harper would remain Prime Minister and one or both remaining major federal parties would most likely be looking to a leadership convention. In that instance, a delay in the opening of parliament, or even an immediate opening of it, would change the landscape. It would become even tougher for the Liberals and the NDP to vote down Harper in the House of Commons if a delay in opening parliament included the election of a new Conservative leader who could face parliament with a Throne Speech riddled with goodies  for the other federal parties.

There are several scenarios in which Stephen Harper could remain Prime Minister into the 42nd Parliament of Canada. The only sure way for critics to see him out for 24 Sussex Drive would be for the Liberals or the NDP to win a clear majority of seats in the House of Commons. Considering that a majority government outcome in the election has pretty much all but been ruled out during this extremely long campaign, we just may all be in for a constitutional lesson tomorrow evening.