The Crown and Government Formation: Conventions, Practices, Customs, and Norms

Abstract

The Crown’s role in government formation is poorly understood in Canada. As demonstrated by the confusion surrounding the Lieutenant Governor’s duties in the aftermath of recent elections in British Columbia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador, the functions of the Crown are misrepresented by politicians vying for power and misconstrued by commentators. These cases also suggest a degree of uncertainty about the Crown’s powers within the vice-regal office themselves. There has been a regrettable tendency to exaggerate the Crown’s involvement in government formation, which risks dragging the vice-regal representatives into the political arena or creating unrealistic expectations about the personal discretion they are able to exercise.

Misunderstandings about the Crown’s place in government formation can be traced to three gaps in knowledge. The first is a vague comprehension of the foundational conventions of responsible government as they pertain to the Crown. While the conventions that surround the government’s need to secure and hold the confidence of the elected house of the legislature are widely recognized, the conventions that frame the relationship between a first minister and the Crown are not. Second, there is confusion about what counts as a veritable constitutional convention. Conventions are too often conflated with other types of rules, notably practices, customs, and norms. Differentiating between these concepts helps us identify which constitutional rules firmly bind the Crown and which are more fluid and evolving. Thirdly, the lack of official explanations and transparency about the Crown’s functions and constitutional activities makes it difficult to appreciate the rules that surround the institution. While some vice-regal offices have made efforts to better articulate their constitutional roles, there is a need for greater openness and explanation.

My aim in this article is to offer an analysis of the types of rules that surround the Crown and government formation in Canada. I begin the article with a discussion of the difference between constitutional convention, practice, custom, and norms. I then examine how the Crown’s role in government formation are guided by these four types of rules. I conclude by recommending ways that vice-regal offices can better explain their functions and avoid confusion and controversy about their powers and personal discretion.