Canadians in dark about power transfer

Harper and Johnston missed a chance to educate public, writes Adam Dodek.

“When will Stephen Harper resign as prime minister?” Just over a week has passed since Justin Trudeau “won” the federal election, and people are still asking this question.

I am quite certain that Harper already has offered his resignation to Gov. Gen. David Johnston. This conclusion is due to constitutional detective work that I have done rather than reading any public announcement. Sadly, at a time when Canadians could most benefit from shining a light on the constitutional mechanics of responsible government, we have been left in the dark groping to try to figure out what’s happening.

Two people can shine a light on what’s happening: Harper and Johnston. But they haven’t.

The Governor General and the prime minister have missed a great opportunity to educate Canadians about how our system of government works. Instead, they have remained silent at a critical constitutional moment.

Here is what we can deduce based on past practice and constitutional convention. On election night, Harper publicly conceded defeat to Justin Trudeau. Privately, the next day the prime minister should have called on the Governor General at Rideau Hall to officially advise him of the election results and that consequently he could no longer command the confidence of the newly elected House of Commons when it convenes. Therefore, Harper would have formally tendered his resignation to the Governor General and recommended to him to commission Trudeau to form a government and become prime minister. The resignation would not be effective until just before Trudeau is sworn in as prime minister. This is why Harper remains prime minister now. This is explained in generalities on the Governor General’s website, but it is not enough.

The Governor General should have issued a news release informing Canadians that he had accepted Harper’s resignation and had commissioned Trudeau to form a new government.

A second opportunity was missed when the Governor General would have contacted Trudeau’s office and requested to meet with Trudeau to formally commission him to form a government and become prime minister. At this point, it became accurate to speak of Trudeau as the “prime minister-designate” because only the Governor General can designate someone to become prime minister. Since the Governor General used this term at the memorial ceremony last Thursday at the National War Memorial, we can assume it is accurate.

We know certainly that Trudeau’s office must have spoken with the Governor General’s office in setting the Nov. 4 date for the swearing-in of Trudeau as prime minister. Yet there is no information to this or any related effect on the Governor General’s website.

Osgoode Hall Law School Dean Lorne Sossin and I have previously argued that the Governor General should be far more forthcoming in disclosing the reasons for controversial decisions like contested prorogations. The practice of secrecy surrounding communications between the prime minister and the Governor General is simply no longer justified. Even William Lyon Mackenzie King and Lord Byng of Vimy disclosed their correspondence at the time. (A constitutional crisis occurred in 1926 when Byng, then governor general, refused a request by his prime minister, King, to dissolve Parliament and call a general election.)

Here I am arguing for something far less extreme. The prime minister and the Governor General should simply publicly recognize the formal procedures occurring behind the scenes that facilitate the healthy operation of the system of parliamentary democracy that has served Canadians so well for nearly 150 years.

Canadians are woefully under-informed about how our Constitution works. Our system of government should not be an episode of Murdoch Mysteries left to constitutional experts and pundits to decode.