OTTAWA - Academic constitutional experts are publicly advising the Governor General to call on the leader of the opposition to attempt to form a government if the Conservatives are defeated on a non-confidence vote.

The advice appears in an open letter signed by thirty-five law professors and political scientists from universities across Canada following a December poll that revealed widespread confusion among Canadians about the basic rules of Canada's constitutional system.

The expert letter points out that democratic legitimacy in our system is based on the principle of responsible government, which requires that a Cabinet have the support of the House of Commons to govern. If that support is lost, the Governor General is no longer bound by the advice of the Prime Minister and may either call on another leader to form a government or dissolve Parliament for an election. As the majority of members of the House of Commons have provided assurances of their support for a government led by the leader of the opposition, the constitutional scholars advise that: "It is our opinion that in the event of a non-confidence vote or a request for dissolution of Parliament after only 13 sitting days of the House of Commons, the Governor General would be well-advised to call the leader of the opposition to attempt to form a government".

The letter with the full list of signatories is below and available at:
www.constitutionacts.blogspot.com

HOUSE RULES

In light of the recent events, it has become clear that many Canadians are unfamiliar with some of the basic rules of our constitutional democracy. In a recent Ipsos Reid poll, 51% of participants mistakenly thought that Canadians directly elect their Prime Minister. We feel that it is our duty, as constitutional scholars, to clarify for the public the rules governing the appointment of government.

After a general election, the Governor General of Canada normally asks the leader of the party that has gathered a majority of seats in the House of Commons to become the Prime Minister and to form a government. According to the principle of responsible government, the government must enjoy the confidence of the House of Commons in order to govern legitimately. Our Constitution requires that the Prime Minister and the cabinet, not being elected directly by the people, enjoy the support of a majority of the elected members of Parliament. In our parliamentary system, it is precisely this support that gives the government its democratic legitimacy. Without this democratic support, the Prime Minister and his cabinet have none.

When the general election does not return a majority of seats to any one party, the Governor General will then have to appoint as Prime Minister a Member of Parliament who is able to gather enough support to sustain the confidence of the House for a reasonable period of time. If the person who was Prime Minister prior to the dissolution of the House of Commons has not yet resigned and it is unclear which party or parties could gather sufficient support from the members of Parliament to lead a government after a fresh election, the Governor General may let that person try to govern until it is made clear that he or she does not enjoy the support of the House. In a minority situation, the Prime Minister cannot claim to have "won" a right to govern. At best, he or she can claim to have the right to try to sustain the confidence of the House.

When a minority government loses the confidence of the House, the Governor General is no longer bound by the advice of the Prime Minister. The Governor General must then exercise what is known as her "personal prerogatives". She may dissolve parliament and call for a new election or, if the elections have been held relatively recently (opinions range between 6 and 9 months), she may invite the leader of another party to attempt to form a government that would enjoy the confidence of the House of Commons. The same may be true if the Prime Minister of a minority government were to request a dissolution of the House early after an election. In fact, certain authorities, such as Eugene Forsey, even claim that "[i]f a government asks for dissolution whilst a motion of censure is under debate it is clearly the Crown's duty to refuse".

While, in our parliamentary system, as it is the case in the Commonwealth in general, the Governor General (or the person fulfilling a similar role in other jurisdictions) may offer the opposition leader the opportunity to form the government in such circumstances, other parliamentary systems give the opposition the right to form a new government (i.e. Spain's and Belgium's constitutions) and, in the case of Germany, the constitution even makes it an obligation in certain circumstances.

Such rules are meant to avoid creating an incentive for minority government Prime Ministers to make successive calls for elections until one party gathers sufficient support to form a majority government. Successive elections can be quite disruptive, if only because without a functioning Parliament to vote on matters of supply, unelected officials are forced to adopt special measures to pay for the operations of government.

When the Governor General exercises her personal prerogatives and decides whether or not to dissolve Parliament or call the opposition parties to form a new government, she must act in a judicial manner, with total impartiality. In such circumstances, she must be guided by her duty to protect the Constitution and, in particular, the principles of democracy and responsible government.

It is our opinion that in the event of a non-confidence vote or a request for dissolution of Parliament after only 13 sitting days of the House of Commons, the Governor General would be well-advised to call the leader of the opposition to attempt to form a government. This would be most appropriate in the circumstances where that leader has already gathered the assurance that he would enjoy the support of a majority of votes on any issue of confidence for the next year or so. The principle of democracy would be protected in so far as the new government would enjoy the support of a majority of the elected officials. This would ensure the stability of our political system.

In alphabetical order:

Prof. Stéphane Beaulac, Law, Université de Montréal

Prof. Karim Benyekhlef, Law, Université de Montréal

Prof. Denis Boivin, Law, University of Ottawa

Prof. Pierre Bosset, Law, Université du Québec à Montréal

Prof. Barbara Cameron, Political Science, York University

Prof. Duncan Cameron, Political Science, Simon Fraser University

Prof. Mark Carter, Law, University of Saskatchewan

Prof. Michele L. Caron, Law, Université de Moncton

Prof. Rachel Chagnon, Law, Université du Québec à Montréal

Prof. François Chevrette, Law, Honorary Dean, Université de Montréal

Prof. Prof. John H. Currie, Law, University of Ottawa

Prof. Hugo Cyr, Law, Université du Québec à Montréal

Prof. David Docherty, Dean of Arts, Political Science, Wilfrid Laurier University

Prof. C.E.S. (Ned) Franks, Political Science, Emeritus Professor, Queen's University

Prof. Sébastien Grammond, Law, Acting Dean, University of Ottawa

Prof. Andrew Heard, Political Science, Simon Fraser University

Prof. Martha Jackman, Law, University of Ottawa

Prof. Jennifer Koshan, Law, University of Calgary

Prof. François J. Larocque, Law, University of Ottawa

Prof. Lucie Lemonde, Law, Université du Québec à Montréal

Prof. Roderick A. Macdonald, Law, F.R. Scott Professor of Constitutional and Public Law, McGill University

Prof. Heather MacIvor, Political Science, University of Windsor

Prof. Errol P. Mendes, Law, University of Ottawa

Mr. Brendan Naef, Ph.D. candidate in law, University of British Columbia

Prof. Charles-Maxime Panaccio, Law, University of Ottawa

Prof. Dennis Pilon, Political Science, University of Victoria

Prof. Dianne Pothier, Law, Dalhousie University

Prof. Denise Réaume, Law, University of Toronto

Prof. David Robitaille, Law, University of Ottawa

Prof. Peter H. Russell, Political Science, Emeritus University Professor, University of Toronto

Prof. Bruce Ryder, Osgoode Hall Law School

Mr. Maxime Saint-Hilaire, Law, Associate Researcher, C.R.E.U.M. and Centre Marc Bloch (Berlin), LL.D candidate, Université Laval/Université de Cergy-Pontoise

Prof. Lorne Sossin, Law, University of Toronto

Prof. François Tanguay-Renaud, Osgoode Hall Law School

Prof. Sophie Thériault, Law, University of Ottawa

Prof. Paul G. Thomas, Duff Roblin Professor of Government, University of Manitoba

Prof. Jean-Pierre Villaggi, Law, Université du Québec à Montréal

Prof. Jeremy Webber, Honorary Dean, Canada Research Chair in Law and Society, University of Victoria

Prof. Margot Young, Law, University of British Columbia