Where's Eugene Forsey when we need him?

Senator Forsey died, full of honours, in 1991. His long reign as Canada's most articulate constitutional expert gave him an aura that survives. Besides, he looked the part.

But what would Forsey say about the pickle we might soon be in if no party wins a majority Monday night?

​Helen Forsey, daughter of Eugene Forsey. (Dundurn Publishers)

Relax! We now have the answer, because his daughter, Helen Forsey, has fished through the great man's papers and retrieved a pithy answer from the vault. She wants everyone to hear it.

"It is vitally important," she says, "to put this information out there now, to correct the mistaken notions that are being bruited about concerning the supposed power of the Governor General to choose the government."

So, what did her father say about that?

Typed out, carefully underlined and signed in August of 1984 is Eugene Forsey's very clear answer. Here it is:

I have been asked what the Governor General does if no party gets a clear majority (more than half the seats in the House of Commons) in the general election.

I. The answer is, "Nothing".

That's right — "Nothing!" Don't say it isn't pithy. Written three decades ago, it would fit on Twitter.

But, of course, it's not the whole story. If the GG does nothing...well, somebody better do something. And Forsey tackles that, too.

If no-one has a majority, he says, there are only two ways to go. His text continues:

The incumbent prime minister has a choice between two courses:

a) He can resign. The Governor General then sends for the Leader of the Opposition, and asks him to form a government.

b) He (the incumbent prime minister) can meet the new House of Commons. If it supports him, he remains in office. If it defeats him, he resigns, and the Governor General sends for the Leader of the Opposition.

​See? This constitution stuff is easy!

Just kidding. Forsey is simply getting the easy parts out of the way. But, soon, it gets complicated.

Hanging on

The problem lies in his item b), above. The incumbent, even if he has fewer seats, can hang on and try to win a confidence vote in the House. Forsey says he's perfectly entitled to give it a shot. He's still the prime minister — until he's not.

This is where things get very interesting for Stephen Harper. Of course, he told Peter Mansbridge that the party with the most seats gets to form the government. But what if it's not his party?

Would Harper be quite so sure that he shouldn't quit if it's Justin Trudeau who has more seats? Why not exercise his right to hang on if he thinks he can win over enough MPs to stop Trudeau? Back to the Forsey text:

The Government in office, even if it has fewer seats than the official Opposition, is entitled to meet the new House, and let it decide whether to keep that Government in or throw it out.

There is no reason at all for any intervention by the Governor General. Indeed, any such intervention would be grossly improper.

It is not the business of the Governor General to decide who should form the Government. It is the business of the newly elected House of Commons.​

Forsey is getting quite cranky now. The underlining is taking over. Interference by the GG would be "grossly improper!"

But...only up to a point. What if the House doesn't meet? If there's no sitting, there's no confidence vote. So could a desperate prime minister — even though he has fewer seats — try to avoid a vote by simply not recalling the House?

Don't say it can't happen. One prime minister who had a minority — Joe Clark in 1979 — didn't recall the House for four-and-a-half months.

Gov. Gen. Michaelle Jean and Prime Minister Stephen Harper are seen at Rideau Hall in Ottawa in 2010. In 2008, Harper persuaded Jean to prorogue the House and avoid losing power to an opposition coalition. (Chris Wattie/Reuters)

Another, of course, was ... Stephen Harper. He's been here before. In 2008, facing defeat on a confidence motion soon after an election, he persuaded Gov. Gen. Michaëlle Jean to prorogue the House, at least for a while. It worked; the coalition threatening Harper disintegrated.

But this strategy might not last long if he tried it again. Both the Liberals and the NDP have sworn not to support him. Besides that, says Forsey, "at some point," the GG could threaten to fire him if he refused to recall the House.

"I shall have to dismiss you."

In such a case, the Governor General can and must intervene — with this lecture, as written by Forsey:

"Prime Minister, responsible cabinet government means government by a cabinet with a majority in the House of Commons. I don't know whether you have such a majority. No one knows. The only way to find out is by summoning Parliament and letting it vote. If you will not advise me to summon Parliament forthwith, then I shall have to dismiss you and call on the Leader of the Opposition. It is not for me to decide who shall form the Government. But it is for the House of Commons . I cannot allow you to prevent the House of Commons from performing its most essential function. To permit you to do that would be to subvert the Constitution . I cannot allow you to usurp the rights of the House of Commons ."

​In other words, Forsey says, the GG can and must pull the rug out from under a prime minister who tries to avoid the judgment of the House — but only in order to let the Commons, not the GG, pick the government.

The post-Forsey scholars

Today's constitutional authorities are not quite as cranky — but they do seem to agree with Forsey.

Senator Eugene Forsey, who died in 1991, penned a thorough position paper in 1984 on the Governor General's powers when it comes to sorting out minority governments. (Canadian Committee on Labour History)

A paper circulated recently by Prof. Max Cameron of UBC was endorsed by Peter Russell, Donald Savoie and many other constitutional authorities. Cameron takes the argument one step further to show how the GG should respond if the prime minister pushes it to the brink, loses a confidence motion and seeks another election.

Then, says Cameron, the GG could refuse, having the authority of the elected House behind him — "especially if there is a reasonable expectation that there is an alternative government...."

In fact, if a confidence vote has happened and a plausible alternative is in the wings, Cameron argues the GG can give the PM the boot.

The Governor General," the paper goes on, "also has the power to dismiss the prime minister in order to allow another party or coalition to form the government — but only if the prime minister has not resigned following a vote of non-confidence."

So there are two conditions there: the PM has lost the vote but is still refusing to quit. In that case, the GG can do a whole lot more than "nothing." But, rather than being the decider, he is the enforcer of the House's right to decide.

The corollary is that the House must be decisive. The Opposition parties can't just sit around waiting for the GG to stick the knife in. They have to be ready to take over.

Cameron says, "Should a government fall on a vote of non-confidence, it is essential that the opposition demonstrate the capacity to form a government." They must have some "confidence arrangement or a coalition" so that we don't have to start the whole merry-go-round again.

In short, it seems that Eugene Forsey's typewritten text of 31 years ago holds up pretty well. What counts is the will of the House, not the will of the Governor General.

But "nothing" is only the first thing the GG should do. After that, he could be busy.