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Guy Giorno: The next federal election will be anything but ordinary. Here are the important constitutional questions to consider

Commentary

Prime Minister Justin Trudeau and Gov. Gen. Mary Simon during a cabinet swearing-in ceremony at Rideau Hall in Ottawa, Dec.20, 2024. Spencer Colby/The Canadian Press.

The winner of the federal Liberal leadership race will be appointed as prime minister and, sooner or later, lead the party into a general election. That’s the general expectation and the most likely path, but it is not the only possible outcome. Under an alternative scenario, constitutionally sound and entirely proper, Justin Trudeau would remain in office, effectively as caretaker, while Canada’s political parties, including his Liberals under new management, contest the election.

Since the advent of party leadership conventions/elections, only five national leaders (Louis St. Laurent, Pierre Trudeau, John Turner, Kim Campbell, Paul Martin) won leadership contests in circumstances resembling the present. All were sworn in before deciding the timing of dissolution and a general election. Pierre Trudeau, for example, was elected on a Saturday, transitioned, took office as prime minister two Saturdays later, and obtained dissolution the following Tuesday. Of these five, only St. Laurent and Martin presented their new ministries to the House and proposed legislative agendas in traditional Speeches from the Throne. (Pierre Trudeau appeared before the House solely to inform it that Parliament had been dissolved; the other two never attended a House sitting as prime minister.)

While Trudeau will probably relinquish office and leave his successor to handle election timing, he would be entitled to stick around as PM during an election campaign that he initiates. It’s worth exploring why and how this might occur.

The constitutional context

First, it is necessary to recap the constitutional context. A prime minister remains in office until death, resignation, or dismissal. Though rarely used, the mere existence of the reserve power of dismissal is an essential constitutional safeguard. A Canadian provincial premier has not explicitly been dismissed since the removal of Edward Prior, of British Columbia, in 1903. Canada’s prime minister has never been sacked, though Charles Tupper’s 1896 election denial, in the form of an attempt to cling to power and dispense patronage despite a Liberal majority, surely warranted firing. James Bowden argues convincingly that Lord Aberdeen’s refusal to act on Tupper’s advice, forcing the latter to resign, was effectively the dismissal that Tupper richly deserved. While a check on unbridled prime ministerial power is obviously needed, I have previously expressed concern about placing this tool in unelected, unaccountable, and oft-unqualified hands.

As it should, the mention of reserve powers places a spotlight on the Governor General’s ability to perform the core functions of her constitutional role. Stephen Harper felt that constitutional competence must be the primary factor in the selection of vice-regal representatives. The sole question asked of his Governor General Consultation Committee, succeeded by his Advisory Committee on Vice-Regal Appointments, was “Will the next Governor General be able to serve without partisanship and according to the Constitutional role he/she will be given?” Trudeau famously scrapped the Harper committee and, as was revealed in the wake of the Julie Payette debacle, also dispensed with vetting. Even when Trudeau came late to the advisory committee concept, Harper’s criterion of fidelity to the constitutional role was replaced with celebrity (“outstanding Canadians”). Fortunately, Canada pays for the country’s pre-eminent constitutional and legal expertise to be available to the GG. She has access to the best advice concerning her constitutional role.

Upon the prime minister’s resignation (or death or dismissal), the GG selects a replacement. Constitutionally, the power of selection belongs to the GG, not to a political party, a parliamentary caucus, or an exiting leader. The outgoing first minister will often express a view on the succession, but this is not “advice” that the GG is bound to follow. The reserve power to name a prime minister, when the office becomes vacant, belongs uniquely to the GG.

Exercise of this power is circumscribed by convention. In the United Kingdom, it is understood that the Sovereign will select someone able to command the confidence of the House of Commons. In Canada, the convention is commonly described as a requirement to call on the leader of the party with the most seats (even if only a plurality) in the lower House. Whether these ways of expressing the convention are substantively the same is beyond the scope of this short essay. It is worth noting that the appointments of John A. Macdonald’s three immediate successors (Abbott, Thompson, Bowell) reflected the active exercise of vice-regal discretion.

Once the GG commissions someone to form a new government, and only then, the individual is known as “prime minister-designate,” one of the most misused terms in Canadian politics. The word’s obvious meaning is that a “designate” has been designated by somebody; the somebody is the GG, not news media consensus or a political party’s constitution. Nonetheless, more than a few commentators will be quick, but wrong, to dub March 9th’s Liberal victor as our prime minister-designate.

Under the Liberal Party of Canada constitution, section 44, the leader assumes office immediately upon election. Not so the office of prime minister. Constitutionally, there will not be an opening until Trudeau formally offers his resignation to Her Excellency. (In 2003, Jean Chrétien had the Canadian Constitution on his side when he made clear that, leadership election be damned, he would resign as PM when good and ready.) Trudeau has announced the intention to resign and presumably intends to do so shortly after March 9th, but there exists an alternate course that is both viable and proper.

Trudeau could instead advise the dissolution of Parliament, which would trigger a general election—an election in which none of the party leaders is the incumbent prime minister. Under this scenario, he would remain in office while exercising restraint under the “caretaker convention“ (avoiding anything but business that is routine, non-controversial, or urgent). Following the election, he would tender his resignation. Presumably, he would not follow this route without the agreement of his successor.

It would be constitutionally proper for Trudeau to act in this manner, and there is a precedent. When Gary Doer was elected to lead the governing Manitoba New Democrats in 1988, he did not become premier. The incumbent NDP premier, Howard Pawley, chose not to tender his resignation to the lieutenant-governor. Instead, Pawley remained in office during the general election, while observing the caretaker convention. When he ultimately resigned, the lieutenant-governor commissioned Progressive Conservative leader Gary Filmon, whose party had won a plurality of seats, to form a new government. (In that instance, dissolution had occurred, and a general election was already underway when the NDP elected its new leader. Nonetheless, the example demonstrated that what vacates the office of a first minister is not a partisan leadership contest but the incumbent’s resignation.)

Choices abound for any new Liberal leader 

Under which conditions would a new party leader benefit from campaigning in a general election unencumbered by the office of prime minister?

One consideration is whether the new leader wishes to govern for months (as opposed to days) before the campaign starts. This would require the support (in confidence votes, regardless of whether a written agreement is executed) of an opposition party. Otherwise, if opposition parties hold to their stated intentions, a general election is imminent. The “snap election” (this is an internationally-recognized term, not just a Canadianism) would be triggered in one of three ways: if the new prime minister advises dissolution; if the new ministry loses a vote of confidence after which the prime minister seeks dissolution; and if Trudeau advises dissolution, governs as caretaker, and formally resigns after voting day.

Presumably, the new Liberal leader will want to control the triggering of the general election, but this could be achieved through the cooperation of Trudeau. In other words, the Liberals can get an election on their timing regardless of which Liberal is PM.

The usual practice is to be sworn in and to form a government before the election call. However, the usual practice often precedes electoral defeat. Including the era before party leadership conventions, most leadership transitions of federal governing parties have been followed by defeats at the polls. Against that grim backdrop, an alternative merits consideration. Heading into the 2025 general election, the leadership winner must decide whether, in the immediate term, the office of prime minister is a benefit or a burden.

The words “Right Honourable Prime Minister” might place a patina of gravitas on someone whose most notable achievement outside politics was attending graduate school. Conversely, an individual who needs no vice-regal commission to demonstrate qualification and substance might relish the freedom to campaign untethered to the Trudeau legacy and undistracted by short-term mechanics of government formation.

An intra-party federal government transition usually takes two weeks. (Measured from date of election as leader to date of swearing-in as prime minister, Pierre Trudeau and Turner each took 14 days; Campbell, 12 days. Martin’s 28-day transition and St. Laurent’s 100-day transition were longer because Chrétien and King, who alone had constitutional control over their own exits, took the time they wanted.) How significantly would a pre-election government transition divert focus and energy away from the coming campaign?

Cabinet formation—including decisions on people, structures, committees, and staffing (not to mention possible realignment of the public service)—is a significant undertaking for a prime minister and the whole team. New ministers’ first days are swamped by departmental briefings, on top of organizing offices and readying for the next parliamentary session. Their time in charge will be short: as soon as the election is called, they will slip into caretaker mode; after an election, cabinet membership inevitably changes. Perhaps the thousands of person-hours consumed by cabinet making will be to the party’s net benefit in the upcoming campaign; if not, then the transition might wait.

Because Parliament stands prorogued, a prime minister who wants to meet the House must prepare the traditional Speech from the Throne, a ritualistic, stilted formalization of a political agenda. The throne speech—which originated in the Sovereign’s practice of telling members the regal priorities that led him to summon Parliament—remains an important constitutional convention, but its value as a public communication tool is greatly diminished. Over time, the budget has become the principal parliamentary means of communicating an agenda; even then, in the digital era, extra-parliamentary communication channels are most vital in reaching Canadians. A new leader might well conclude that a throne speech is not the place to invest in pre-election positioning.

Appointments, another prerogative of the prime minister, may be either a hindrance or help. Turner’s partisan patronage defined his brief ministry and disastrously affected the party’s election campaign. A new leader might opt to defer the spoils of power until after the election, partly as an incentive to the team, but mostly because managing appointments beforehand is an unneeded distraction or worse.

What about crises that occur during the campaign? Would it be better for a new prime minister to manage critical files (say, tariff negotiations) while simultaneously campaigning? Or would Canada’s response capacity be nimbler and stronger if Trudeau and his old cabinet remained in place and in charge until after the election? One can make arguments either way.

Conflict of interest likely will not be a factor in the decision making but the chosen course will have statutory implications, particularly for anyone not currently serving in government. A contestant from outside the cabinet will become subject to the Conflict of Interest Act and its many restrictions, not upon election as leader, but upon appointment as prime minister. Members of a prime ministerial transition team, including volunteers, are subject to a five-year Lobbying Act prohibition. While the laws provide some room for waivers and reductions, government and transition roles assumed weeks before an election can have profound, career-limiting impacts.

Perhaps the most important consideration is the new leader’s positioning relative to Trudeau. Upon swearing-in, a new prime minister would at once assume responsibility for Trudeau-era policies, programs, and statutes. Very little can be changed or undone immediately; everything that continues, the new PM would own. The assembly of a new cabinet from remnants of the Trudeau team would be another link between the new PM and the outgoing ministry. Further, even in caretaker mode during a general election, a sitting prime minister must respond to events and answer for problems that arise. Likely, Trudeau’s successor would be forced to defend many acts and omissions of the nine previous years.

The most dramatic way to show a break from the past might be for a new leader to let Trudeau be the one to seek dissolution, resigning after the general election. This would allow the next Liberal leader to campaign as an outsider and agent of change who is “unburdened by what has been.”

Guy Giorno

Guy Giorno served as chief of staff to Ontario Premier Mike Harris and Prime Minister Stephen Harper. He currently leads the Political Law practice at the Fasken law firm.

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