Philippe Lagassé: Ultimately, the confidence convention is all that matters

The constitution is about what is legal, while politics is about what is seen as legitimate. Ideally those overlap, but we need to think about scenarios where they pull in opposite directions.

By: Philippe Lagassé

Does the party that wins the most seats during a Canadian election almost always get to govern? Yes.

Is there a sense of fairness and democratic legitimacy that underpins this custom? Sure.

Does that mean that a governing party would be illegitimate if they stay in power after winning fewer seats than another party, or that they’d be violating constitutional convention if they did so? No.

Are there a few examples of this we can point to, particularly in the provinces? Yes, and here’s a reminder of how and why this is possible.

When it comes to government formation and endurance, the confidence convention is all that matters, constitutionally speaking. Although the confidence convention and the custom that the party with the most seats governs are usually aligned, sometimes they aren’t. In those cases, the confidence convention trumps custom.

Given recent election results and the presence of four major parties in the House of Commons, these questions are important and it’s worth considering how things might unfold differently than usual in the next general election.

The point of doing so isn’t to lend support to the Liberal Party or to encourage a coalition between the Liberals and the NDP. Instead, it’s worth being clear on what is constitutionally possible, because having a viable government that can command the confidence of the Commons is the core of Canadian parliamentary democracy. Our system evolved to ensure that governments are (usually) able to govern with a degree of certainty and stability. Cabinet solidarity, political parties, and party discipline, along with the confidence convention itself — all were shaped by the need to maintain a degree of consistency and endurance for the executive branch of the state. That’s why the question of who gets to govern matters, not because of some ideological or partisan concern.

With that in mind, let’s discuss how things might unfold.

To begin with, nobody seriously doubts that the Conservative Party would be invited to form government if they were to win more than about a dozen more seats than the Liberals in the next election.

As a number of commentators have noted, if Prime Minister Justin Trudeau refused to resign after the Conservatives won a sizeable plurality, it would look desperate, and be cast as an affront to democracy and the “will of the people.” The political part of our constitution would weigh heavily against such a move and it probably wouldn’t be a particularly stable situation as a result. In fact, were the Liberals to do so, they would likely be setting the stage for a Conservative majority in the near future. This is compounded by the fact that the Liberals have been in power since 2015. Resisting a transition of power when there’s been a clear shift in the electoral landscape would likely be untenable for the prime minister’s personal hold on power in particular.

But what if the margin were smaller? What if the Conservatives only won, say, five more seats than the Liberals? Maybe the same political calculus as above would apply. But it might not. If the seat difference between the Liberals and Conservatives is narrow, and the Conservatives would have a good deal of difficulty governing, the Liberals might decide to chance it. A deal with the NDP would need to be struck to ensure that the government could survive for a while, which is what we have now, and such an agreement could be used to defend the Liberal's decision. If the Conservatives only win a slim plurality, centre-left and progressive voters could understandably ask why the existing Liberal-NDP pact shouldn't stay the course

Simply put, the smaller the margin between the two largest parties, the harder it is to claim that a party with fewer seats shouldn’t govern, particularly if the one with the fewer seats is better placed to maintain confidence through an agreement with a third party. If the party with fewer seats is clearly better able to command the confidence of the Commons, and the seat difference between the two largest parties is small, it can govern if it so chooses.  

We have two recent provincial examples of how this works. Following the 2017 election in British Columbia, the NDP replaced the Liberals as the governing party after a vote of non-confidence, despite the Liberals having more seats than the NDP, since the NDP had the support of the Greens. Following the 2018 election in New Brunswick, by contrast, the serving Liberal government tried to maintain confidence despite having one less seat than the Progressive Conservatives, but they couldn’t get support from another party. The Liberal government fell and the Progressive Conservatives formed a new government.

Neither of these cases is exactly analogous to the federal Liberals staying on if they win fewer seats during the next election. As noted, the fact that the Liberals have been in power since 2015 will weigh heavily in favour of ceding power to the Conservatives if that happens. But we can’t rule out the possibility that the Liberals might decide to try to remain in power, perhaps with a new leader in place after a while, in hopes of being better positioned to win more seats next time. If they do decide to stay on and they are able to maintain confidence, there will be nothing unconstitutional about their decision, however rare or politically risky if would be.

The Conservatives, of course, would be free to slam the Liberals, accuse them of undermining the will of the people, and so forth. If the margin between them and the Liberals is narrow though, the Conservatives would probably see the Liberals staying on as a blessing in disguise. Governing with a very small plurality with the help of the Bloc would be difficult, whereas waiting for voters to get so fed up of the Liberals that they elect a Conservative majority could be far more attractive. Getting back to the idea that our system has evolved to favour stable governments, the Conservatives would be wise to let weakness and instability of a second-place Liberal government play out until Canadians decide that they’ve had enough.

Philippe Lagassé is associate professor and Barton Chair, Carleton University.

---

The Line is entirely reader funded. If you value our work and worry about what will happen when the conventional media finishes collapsing, please make a donation today.

---

The Line is Canada’s last, best hope for irreverent commentary. We reject bullshit. We love lively writing. Please consider supporting us by subscribing. Follow us on Twitter @the_lineca. Fight with us on Facebook. Pitch us something:  lineeditor@protonmail.com.

---