Minority government could force Governor General to flex constitutional muscle

​The man whose ceremonial role revolves around pomp, ceremony and celebration of Canada could soon be thrust into raw politics and constitutional wrangling.

As the Queen's representative in Canada, Gov. Gen. David Johnston represents the country on trips abroad, receives royal visitors at home and honours Canadians for heroism and achievement. But if Monday's election leads to a minority government, he could soon be forced to flex his constitutional muscle.

• The Sunday Edition: What happens post-election if no party wins a majority?
• Compare the federal party platforms and election promises
• Women in politics: Why the parliamentary gap still exists
• Poll Tracker: Follow the latest polling trends and seat projections

Along with the pomp and ceremony comes power, and Johnston could ultimately decide who leads the country and when Canadians will return to the polls.

"He's called the head of state in Canada, but really 99 per cent of what he does is what the government either allows him to do, or wants him to do," constitutional expert Ned Franks told CBC News. "But then there are these strange instances where the Governor General has to act independently of the advice from the prime minister. And the outcome of an election which produces no majority party is one of those."

Big decisions ahead?

Depending on the outcome, Johnston could decide, for example, whether to dissolve Parliament and hold an election if a minority government is defeated in a confidence matter such as the speech from the throne, or whether to give another party or coalition a crack at governing.

Much of that will depend on timing, said Franks, professor emeritus at Queen's University.

"It depends on the time after the House has met that the government is defeated. The sooner it's defeated, the more likely the Governor General is to invite a leader of the opposition to become prime minister," he said, adding a written agreement of support for a fixed period from another party leader would help in that case.

The Governor General's fundamental constitutional role is to ensure that Canada has a prime minister and a government in place at all times.

A spokeswoman for the Governor General's office acknowledged that "various scenarios" could arise if no party wins a majority of seats.

"Our office will not hypothesize on potential courses of action the Governor General may take following the results of the general election," said Marie-Ève Létourneau.

Létourneau said that throughout their mandates governors general regularly meet with and are advised by constitutional experts on any matter related to their role. These discussions take place in "strict confidence," she said.

Advice from constitutional experts

During the 2008 parliamentary crisis, then governor general Michaëlle Jean met with several constitutional experts at Rideau Hall on the question of whether to shut down Parliament in order for the Conservative government to avoid a confidence motion.

At the time, a coalition was threatening to bring down the government and install a Liberal-NDP coalition, to be led by then Liberal leader Stéphane Dion, with the support of the Bloc Québécois.

As Canada's acting head of state representing the Queen in a constitutional monarchy, the Governor General has prerogative powers that can be invoked in times of a constitutional and political impasse.

In the end, Jean granted Harper's request to prorogue Parliament and the coalition collapsed.

Peter Milliken, former longtime House Speaker and an expert in parliamentary procedure, said the Governor General always remains neutral and careful not to take sides in any partisan dispute.

If a minority government is elected Monday, he expects past convention would likely help dictate future decisions, such as what to do if that minority government is brought down quickly on a confidence motion.

"If they get defeated, they may say we'd like another election, but I think the Governor General would in most circumstances say, 'Sorry there are other people ready to form a government and I think they deserve an opportunity,'" he said. "And that will be that."

Some believe that too much power is vested in the Governor General without accountability and transparency. Duff Conacher, co-founder of Democracy Watch, said the fate of election timing and governments should be based on a clear set of rules rather than one unelected individual's decisions.

"Most countries in the world, of any sort that call themselves a democracy, have clear, public, post-election rules, and we don't have them," he told CBC Radio's As It Happens in a recent interview.

Constitutional crisis or political upheaval?

These turbulent periods in Canada's history are often characterized as parliamentary or constitutional "crises," but Franks said they are really more about political upheaval.

"The crisis isn't in the Constitution, because it's fairly clear. The crisis is the people in it — how they're handling things and the circumstances. So it's a crisis for the government."

And while the Governor General would be expected to follow elections closely, Franks said Johnston could be more plugged in than usual with this fluid and unpredictable campaign.

"He's going to have a lot of interest in this," he said. "He might be one of those governors general who makes a major decision that becomes a constitutional precedent."