Could a refusal to transfer power happen in Canada? There are reasons to worry.

 

Unlike the United States, much of how Canadian democracy is “supposed to work” isn’t constitutionally codified. This forms a troubling vacuum where a close election could easily spawn a legitimacy crisis just as ferocious as post-2020 America.

At the root is an indefensible fact: Canada’s constitution, and relevant legislation, do not outline basic facts on how or when a prime minister assumes or leaves office — allowing competing theories of precedent and propriety to fill the vacuum. This invites the possibility of a prime minister whose party loses its parliamentary majority or plurality in a general election yet refuses to step down —in defiance of what’s been standard practice for most of Canadian history— and instead appeals to archaic traditions to justify prolonging his time in office. For most of Canadian history, this standard practice of defiance appeals to an archaic tradition of prolonging his time in power.

An increasingly fashionable theory states that an incumbent prime minister holds office indefinitely until parliament explicitly votes to unseat him. In turn, Parliament convenes at a time of the prime minister’s choosing (no later than “twelve months” after the last sitting, says the constitution), meaning a stubborn enough prime minister could spend a year puppeteering post-election ambiguities to maximum personal advantage.

Suppose Justin Trudeau’s Liberals were to lose their parliamentary plurality in the next election and be replaced by a Conservative one. In that case, Trudeau could cite this expansive theory of incumbent prerogative to remain in power for months, rather than concede defeat and hand the reins to a Conservative administration. This would award him ample time to hammer out a legislative agreement with one of parliament’s third or fourth place parties, then convene a parliamentary sitting at the latest possible moment to ratify the arrangement and extend his stay in power even longer. During last year’s election, Trudeau-friendly voices in the media and academia disingenuously claimed this was “literally how” Canadian democracy had always worked.

In reality, such grasping tactics have not been attempted in Canadian federal politics in 95 years. For decades, the clear Canadian norm has been for the party with the most seats to install a prime minister — and promptly after an election.

In 2006, for instance, the last time an incumbent prime minister’s parliamentary plurality was narrowly replaced by a plurality of a rival party, Liberal Prime Minister Paul Martin offered a concession to Conservative leader Stephen Harper on election night. “The people of Canada have chosen him to lead a minority government,” he declared.

Martin’s concession saw Harper inaugurated two weeks later, which awarded him the ability to convene parliament and “test the confidence of the House” — which he received by unanimous consent three months after the election.

Yet 2006 was long ago, and a decade under Harper has since persuaded many on the left that Tory rule must never again be endorsed “in any way.”

Could it work? Confident “explainer” columns may instruct the public to regard breaking nearly a century of transition-of-power procedures as no big deal. Still, Conservatives would no doubt disagree, and acrimonious litigation would likely follow. Regardless of thefinal outcome, considerable damage would be done to the credibility of Canadian democracy as one governed by mutually respected norms.

Since Canada has three or four center-left parties but only one center-right one, it was perhaps inevitable that the former would eventually conclude that some manner of co-operation could permanently shut out the latter. The moment it becomes a settled progressive consensus that a Conservative minority government must never be permitted to assume power, the Tories’ only remaining strategy will be to win an uncontestable parliamentary landslide of the sort they presently seem nowhere close to achieving.

Well, those are the rules, progressives will reply. But if that’s true, perhaps they could spare the nation future headache and just pass a statute saying so.

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