Prime Minister Mark Carney waves following his speech at the Liberal national convention in Montreal on April 11.Christinne Muschi/The Canadian Press
Opinion on Canada’s New! Liberal! Majority! Government! has tended to divide into two camps.
On one hand are those, mostly to be found on the Conservative end of things, who denounce the process by which the Liberals attained their majority – five opposition MPs, crossing the floor one after the other, like baby ducks – as illegitimate, even undemocratic.
Canadians, in this telling, “voted for a minority Parliament” in the last election, only to be betrayed after the fact by “dirty backroom deals” between cynical Liberals and faithless opposition MPs. “If you want a majority government in Canada,” groused Conservative MP Aaron Gunn, “you should earn it at the ballot box.”
On the other hand are those, mostly on the Liberal end of things, who wonder what all the fuss is about. Floor-crossing, they remind us, is not new. It may be unprecedented for it to spell the difference between minority and majority government, but so what? We elect Parliaments in this country, not governments.
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We vote for MPs, what is more, not parties. We elect them, not merely to serve as human yard signs for their respective party leaders, but to use their judgment. If an MP wishes to break with his or her party and join another, that is his or her right. And if a majority of MPs decide to support the Liberal government – if, that is, the government enjoys the “confidence” of the House – that is all that matters, legally, morally and otherwisely.
Neither side has it wholly right. It’s true that MPs have a right to change their minds, if a party or its leader has become repugnant to them. No one voted for a “minority” government, so it’s silly to raise this as an objection.
On the other hand, it’s a bit precious to pretend that their party affiliation had nothing to do with their election. I’m all for greater autonomy for MPs. But to say that MPs should be more independent does not mean they are. The truth is that most MPs mostly owe their election to their party label. Up to a point, indeed, party labels are a good thing, providing voters with useful information about what the candidates stand for.
So voters in the floor-crossers’ ridings have a right to feel they have been had. The rest of us are entitled to wonder what the terms were, and whether they included free parking. No, MPs with principled objections should not be prisoners of their parties. But if jobs were offered, or pork was promised, that puts a very different colour on it – especially given the scale of the operation. Effective opposition, which is to say accountable government, is impossible if the government can just buy MPs’ allegiance wholesale.
There are, or should be, other ways for MPs to register their disaffection than to outright leave the party. If the problem is party policy, the remedy is to give them more freedom to depart from the party line here and there, provided they support its broad philosophy. If the problem is the leader, let MPs have more power to remove – and replace – the leader.
It makes no sense, then, to say that one either approves or disapproves of floor-crossing, in principle: it depends on the circumstances. Between banning it altogether and just waving it through there is likewise an appropriate compromise. MPs who wish to change parties should be free to do so, provided they first obtain the approval of their constituents, by resigning and running in a by-election.
All of which is well-trodden ground. One is struck, nevertheless, by the absolutist tone of the Conservative opposition: the repeated references to Mr. Carney’s majority as “illegitimate.” Even if it is hugely hypocritical – Conservatives have welcomed floor-crossers to their own ranks with hula dances in the past – it is rooted in a broader constitutional understanding that has become central to Conservative ideology of late.
Recall two recent controversies. Both turned on who should get to form a government, and under what circumstances. In the first, the “coalition crisis” of 2008, the Conservative government of Stephen Harper nearly fell to a coalition of the Liberals and the NDP, backed by the Bloc Québécois. Should the government be defeated in the vote then looming over its fall budget, the coalition had formally advised the governor-general, they stood ready to form a government.
Had the confidence vote gone ahead, and had Mr. Harper recommended dissolving the House in its wake, the governor-general would arguably have been within her rights to have refused: it had been barely two months since the election, after all, and there was an alternative government at hand.
Instead, he recommended she prorogue the House, staving off the confidence vote and leaving the coalition nowhere to go. Reluctantly she agreed, but not before leading Conservatives had mounted a quite ferocious campaign to discredit the coalition option. The coalition was a rickety contraption, to be sure – its dependence on the Bloc was particularly troublesome – but the Conservative argument was that any such transfer of power, without the explicit blessing of the electorate, was illegitimate.
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Which is constitutional nonsense. No less a figure than Sir John A. Macdonald was obliged to resign after the Pacific Scandal, in 1873. Power transferred seamlessly to Alexander Mackenzie, the Liberal leader, without an election. Mackenzie King was likewise forced to hand over power, in similar circumstances: mired in scandal, and heading for a confidence vote he was sure to lose. King screamed – he had demanded the governor-general, Viscount Byng, dissolve the House instead – but Arthur Meighen was duly appointed prime minister.
More recently, the Ontario Conservatives “won” the 1985 provincial election, in the sense of having won the most seats, but were soon defeated in the legislature. Power transferred to the Liberals, supported by the NDP, without an election. The same fate befell the British Columbia Liberals, under Christy Clark, after the 2017 election: replaced, after a brief attempt to govern, by the NDP, with the support of the Greens.
The second recent controversy was rather more theoretical. It erupted a couple of years ago, in response to speculation that the Liberals, then only a couple of points behind in the polls, might finish with fewer seats than the Conservatives – but still hold onto power, with the support of the NDP.
The prime minister remains the prime minister during an election campaign and after, whatever the result, until he is no longer so. As such, he has the right to meet the House, and to test whether he has its confidence. Only after it has been demonstrated that he does not is he obliged to resign – though he may choose to do so before then.
So a prime minister could “lose” an election, in the sense of finishing with the second-most seats, and still form a government, provided he had enough support from other parties. The Liberals had been able to govern with the support of the NDP before the election. There seemed no reason they could not continue to do so after.
Foul! cried a number of Conservatives. The only party that gets to form a government after an election, they insisted, is the party that got the most seats. That, they claimed, was established convention. Nonsense, again, only this time on stilts. The actual convention, as any constitutional scholar could tell you, is that the right to govern goes to the party that can command the confidence of the House.
It may have been the practice, more often than not, that the party that got the most seats formed the government, but not because of any convention to that effect. In most cases, “most seats” means a majority: the convention there is simply the confidence convention restated, since obviously a majority implies confidence.
In other cases, an incumbent prime minister might have come to the conclusion that there was no prospect of commanding the confidence of the House, whether because he had no other party willing to lend their support, or because his party was too far short of a majority to make the numbers work.
But on occasion prime ministers have, as have premiers: King in 1925 (the prelude to King-Byng); New Brunswick premier Brian Gallant in 2018. Why? Because they were close enough to make it worth a chance. (That neither government lasted long does not mean they were wrong to try.) Again, the issue is whether you can get to a majority, not whether you started with a plurality.
The question that is common to all of these is the same: who has the right to form a government? And the answer constitutional scholars would give is in every case the same: whoever has the confidence of a majority of the House. It doesn’t matter whether that majority is formed out of one party or several; whether it is assembled by one party first and another later; or whether the governing party happens to be the largest party.
Neither does it matter whether it is kept together by sheer nerve, as under Stephen Harper, or by a formal coalition, as proposed by Stéphane Dion, or by a supply-and-confidence agreement, as under Justin Trudeau – or by the addition of a few floor-crossers. Confidence of the House is all. That’s the convention.
And yet the Conservatives continue to insist on their own “conventions”: that power always goes to the party with the most seats; that power can only be transferred with the intermediation of an election; even that minority governments cannot grow to become majorities.
It isn’t just that there is no legal or factual basis to these claims. It is that it assigns no agency to MPs, or to Parliament itself. It essentially consigns Parliament to the role of an electoral college, with no power but to mirror the votes as they are counted.
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If, on the other hand, you think MPs are elected to wield power as legislators, then you are more likely to accept that they have the authority to remove one party from government and raise up another, or install a party in government though it had fewer seats than another, and so on.
Floor-crossers admittedly make things more complicated. Just as we want MPs to have some independence of party, without undoing parties altogether, so we should want MPs to exercise individual judgment in some matters, beyond what was spelled out in the platform – without completely thumbing their noses at the people who elected them. Voters delegate authority to their MPs. They don’t write them a blank cheque.
But it’s the broader philosophy behind the Tory attacks, in this as in other matters, that is concerning: the idea that everything is settled by a vote of the people, and nothing can be settled without it; that MPs have no more independence from the voting public than they have from their party leaders; that the settled consensus of constitutional scholars can be ignored if a large enough number of people with a small enough understanding of how our system works can be riled up enough. This is populism in its most primitive form.
Worse, it is an attack on the very concept of constitutional conventions, on which our system crucially depends. Conventions are based on what people have done in the past, and are therefore expected to do in the future: accepted practice, informed by constitutional reason. You can’t just make up your own. But that gets us into such thorny questions as who decides what’s a convention? And how is it enforced?
After all, it’s only a convention that we follow conventions.