On transitions

Bob Hepburn makes clear that while the Libs may still be in denial about the importance of cooperating to remove the Harper Cons from power, their best friends in the media are under no such illusions. But the most noteworthy contribution to Canada's discussion about post-election options comes from Aaron Wherry - particularly in highlighting what factors have, and have not, been taken into account in determining who gets a chance to form government:

(A) Progressive Conservative government in Ontario in 1985 was defeated in the legislature and replaced by a Liberal government that had signed a governing accord with the NDP caucus. Interestingly, it is recounted in this piece for Canadian Parliamentary Review that when the defeated premier, Frank Miller, tendered his resignation with Ontario’s lieutenant-governor, he advised that an alternative was prepared to govern: “It would appear that the Honourable Leader of the Opposition is able to gain the confidence of the House at this time.”

The lieutenant-governor of the day, John Black Aird, then issued a statement to explain the change:

In my capacity as Lieutenant-Governor of Ontario and as the representative of Her Majesty the Queen in Ontario, I have this day asked Mr. David Peterson to form a government, he having assured me that he can form a government which will have the confidence of the Legislative Assembly for a reasonable length of time.

On the advice of counsel with whose opinions I agree, I have advised Mr. Peterson that the agreement between the Liberal Party and the New Democratic Party, a copy of which had been delivered to me, has no legal force or effect and that it should be considered solely as a joint political statement of intent and that the agreement cannot affect or impair the powers or privileges of the Lieutenant-Governor of Ontario nor of the members of the Legislative Assembly.

Wherry goes on to note that there are also two precedents in which alternative governments might have had the opportunity to form government without the consent of the incumbent: the federal Parliament in 1980 when other parties did not seek the opportunity to replace Joe Clark's PCs (who had already won a confidence vote), and again in 2004 when no confidence vote was brought against Paul Martin's Libs. And there's one example of a party actually finishing second in seats and forming government over the objections of the incumbent which had lost a confidence vote (that being Saskatchewan's legislature in 1929).

But the review of the historical record suggests a few points to keep in mind. The Governor General actually holds a great deal of discretion in determining what factors matter in assessing an incumbent's request for dissolution and/or the right to continue governing - with a previous confidence vote and a signed agreement encompassing a majority of representatives being less than determinative (if significant at all) on their own. And the transition process (like so many other aspects of our system of governance) relies in substantial part on the good faith of the leaders involved in assessing their prospects of winning Parliament's support, which we can't take for granted from Harper.

All of which means that we shouldn't consider a seeming defeat for the Cons - whether the loss of a majority or a drop in the party standings - to completely close the door on Harper clinging to power. And we should thus stay motivated to make sure the electorate's verdict leaves Harper and the Governor General no choice but to allow for a transfer of power.