Towards Guidelines on

Government Formation
Facilitating Openness & Efficiency
in Canada’s Governance

Final Report
April 2012

ppforum.ca
The Public Policy Forum is an independent, not-for-profit organization
dedicated to improving the quality of government in Canada through
enhanced dialogue among the public, private and voluntary sectors. The
Forum’s members, drawn from business, federal, provincial and territorial
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nonpartisan facilitator, capable of bringing together a wide range of
stakeholders in productive dialogue. Its research program provides a neutral
base to inform collective decision making. By promoting information
sharing and greater links between governments and other sectors, the
Forum helps ensure public policy in our country is dynamic, coordinated
and responsive to future challenges and opportunities.

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ISBN: 978-1-927009-30-7
Table of Contents
Acknowledgements ......................................................................................................................... 1
Recommendations for Guidelines on Government Formation ....................................................... 2
Introduction ..................................................................................................................................... 3
The Role of the Public Service ....................................................................................................... 5
Canada’s constitutional and administrative conventions .................................................... 6
The Clerk’s responsibilities to government ........................................................................ 8
Public servants and transition teams ................................................................................... 9
Recommendations ............................................................................................................. 10
The Role of Political Leadership .................................................................................................. 11
Parliament ........................................................................................................................ 11
The Crown ........................................................................................................................ 11
Recommendations ............................................................................................................. 12
The Role of the Media and General Public ................................................................................... 13
Recommendations ............................................................................................................. 14
Conclusion .................................................................................................................................... 15
Appendix 1 .................................................................................................................................... 17
Appendix 2 .................................................................................................................................... 20
Bibliography ................................................................................................................................. 24
Acknowledgements
On behalf of Canada’s Public Policy Forum, I wish to acknowledge and thank the participants of
this study for providing much needed insight into how we might improve understanding of the
process of government formation in our country.

This report synthesizes the findings of two roundtable discussions and a series of interviews with
former Governors General, High Commissioners to Canada, former Clerks of the Privy Council,
transition team leaders, scholars and members of the news media.

I especially want to thank my team at the Public Policy Forum, including James McLean,
Research Associate, for drafting this report, Mary-Rose Brown, Ryan Conway and Dianne
Gravel-Normand for their project assistance, and Julie Cafley, Vice President, for her counsel.

In releasing this report and initiating a dialogue on government formation in Canada, the Public
Policy Forum remains true to its mission of facilitating open and frank dialogue on governance
in our country. All individuals and groups who work to bring clarity to government policies and
processes should be encouraged and applauded.

David Mitchell
President and CEO
Canada’s Public Policy Forum

1
Recommendations for Guidelines on Government Formation

1. The public service should develop principles-based guidelines on government

formation. Once approved, these guidelines should be publicly accessible and clearly
outline the relevant roles, responsibilities and conventions that are central to
government formation in Canada.

2. In supporting the government of the day, the public service provides advice in a
non-partisan manner. From time to time, the Clerk of the Privy Council may need
to provide a “challenge function” for the Prime Minister and Cabinet in order to
ensure that all organizational, legal and constitutional principles are understood.

3. Public service briefings for Opposition leaders on matters of government formation

prior to and during an election period should be considered, with the approval of
the Prime Minister. Guidelines should clearly outline when and how such briefings
might occur.

4. During election periods, regular dialogue between senior public servants and
political transition teams should be fostered.

5. Parliament should meet within a prescribed period of time following an election.

6. Rules on confidence votes are properly in the domain of Parliament and should not
be included in government formation guidelines.

7. Special care should be taken to ensure that the Crown is kept above politics.

8. Consideration should be given to ways of engaging the news media and the public in
the process of developing guidelines on government formation.

9. The public service is best positioned to provide a neutral “safe space” to convene,
inform and educate all stakeholders on the process of government formation.
Discussions should ideally take place during periods when a government is not at
risk of being defeated or when Parliament might be dissolved.

2
Introduction
Canada stands out among developed Commonwealth countries in not having clear and publicly-
accessible guidelines describing how governments are formed. For most of its history, our
country has been governed by majority parliaments and transfers of power between political
parties have occurred in an orderly manner. Under these circumstances, few have acknowledged
a need to better clarify how government functions during periods of transition.
However, the past decade has seen a degree of uncertainty in the ways in which governments are
formed. The frequency of federal elections (five since 2000), the recent influence of minority
parliaments and confusion around issues such as prorogation or the prospect of coalition
governments have all underscored the need for a better understanding of our governance
processes.
While Canada returned to a majority parliament in 2011, the last decade has illustrated that a
greater level of clarity and transparency on government formation processes could benefit all
those who are charged with establishing a new administration with few guidelines. The
complicated and time-sensitive transition process involves many stakeholders, including elected
representatives, the Crown and public servants, each of whom must balance political priorities
and administrative realities, while conforming to laws, principles and conventions. In the
absence of publicly-accessible guidelines, it is often unclear what specific responsibilities
stakeholders are expected to fulfill, and how forgotten conventions might be respected or
enforced.
Over the past year, Canada’s Public Policy Forum convened a series of discussions to explore the
possible utility of establishing a set of guidelines on government formation in our country. On
March 21, 2011, we brought together constitutional and policy experts, including former senior
public servants, transition team leaders, scholars and journalists in a discussion to identify the
most significant issues during periods of government formation and transition.1 Roundtable
participants agreed that political leaders as well as the Crown, Clerk of the Privy Council and the
news media all have special roles to play during transition periods but their responsibilities are
sometimes unclear and misunderstood. Among the participants’ recommendations was the call to
establish a set of publicly-available guidelines on government formation to inform all
stakeholders during such periods.
In June 2011, we invited Sir Gus O’Donnell, then-Secretary of the Cabinet and Head of the Civil
Service of the United Kingdom, to meet with a group of Canadian constitutional and
parliamentary experts to discuss the UK’s Cabinet Manual and how it addresses questions of
government formation.2
Finally, in the Fall and Winter of 2011 we conducted 20 executive interviews with policy and
constitutional experts whose insights helped refine the findings of our previous roundtable
discussions. This group included former Canadian Governors General, Clerks of the Privy
Council, High Commissioners, senior public officials in the UK, New Zealand and Australia and
Canadian constitutional scholars.
1
The findings of this roundtable discussion can be found in the summary report, Government Formation in Canada:
Public Policy Forum Ottawa Roundtable (March 2011)
2
For more information on the June 2011 roundtable, please refer to our summary report, Government Formation:
The Need for Clear Guidelines, Roundtable with Sir Gus O’Donnell (June 2011)

3
The discussions that we convened over the last year have built on projects the Forum led in 1995
and 2000.3 Our more recent roundtables and interview participants found consensus on four key
observations upon which our recommendations are based:
1. There is a need to clearly articulate rules and responsibilities for periods of government
formation. Participants agreed that such guidelines should present the main principles that
apply when governments are formed, utilizing and expanding on existing procedural
documents in the Privy Council Office (PCO). These guidelines should be made available in
clear, accessible language.
2. Such guidelines should retain a necessary level of flexibility in their application. They should
be similar in their level of discretion to those provided in the Cabinet Manuals of Australia,
New Zealand and the United Kingdom. Guidelines would help ensure that consistent
practices are applied in Canada.
3. There is also a need to distinguish among a range of potential scenarios and the impacts each
may have on the formation of a government. The guidelines should clearly explain how
government works in practical terms, not how it should work or be reformed. In other words,
guidelines should be descriptive, rather than prescriptive.
4. Finally, the guidelines should be released publicly so that the public service, political parties,
the news media and the general public will share a common understanding and have clear
expectations of the procedures during periods of government formation.
The recommendations of this report represent our attempt to help bring clarity to the government
formation process, and are the culmination of many years of collected wisdom from
constitutional and policy experts and practitioners. It is our intention that this report may serve as
a resource as Canada moves towards a better understanding of its own practices and policies
regarding government formation.

3
Beginning in 1995, the Forum partnered with Ekos Research Associates Inc. to explore management challenges
and opportunities facing the Ontario Public Service. The findings can be found in the report, Direction for Reform:
The Views of Current and Former Deputy Ministers on Reforming the Ontario Public Service (1995).

In 2000, the Forum released Changing the Guard: Effective Management of Transitions in Government, an edited
collection of writings on the transition process in Canada. This concise volume identifies the pertinent roles,
stakeholders and procedures that shape the government formation process before, during and following an election.

4
The Role of the Public Service
Canada’s professional, non-partisan public service is a vital source of advice and support,
allowing governments to implement policy. During periods of transition, the great majority of
those working in the public service carry out their work as normal, while the political leadership
(re)organizes the structures of government.
For senior public servants, however, the absence of clear guidelines that elucidate the public
service’s duty to uphold conventions and protocol can be troubling, especially since the public
service plays an instrumental role in the transition between one government and the next. Indeed,
perhaps nowhere is this responsibility felt more significantly than in the Privy Council Office.
As the senior-most leader of the public service, the Clerk of the Privy Council is entrusted with
carrying out a number of vital and challenging roles, including:

 As Deputy Minister to the Prime Minister and Secretary to Cabinet, the Clerk is responsible
for providing professional, non-partisan advice to Canada’s executive leadership on
administrative, policy and constitutional matters. Included within this role is the duty to
maintain the records and memory of government.

 As Head of the Public Service, the Clerk is responsible for running an institution that helps
ensure the quality of life of all Canadians. This position requires the Clerk to coordinate
policy and protocol with all deputy ministers and numerous departments and agencies on
matters that range from internal human resources to national defence.

 Also, it should be noted that the Clerk of the Privy Council plays an important role as a
“custodian of the constitution.” While this may not be an official role for the Clerk, and does
not supersede the roles of either the Governor General or the Supreme Court of Canada as
guardians of the constitution, the Clerk is responsible for ensuring that conventions are
observed and respected, especially during periods of government formation. In addition to
serving as an advisor to the Prime Minister and government on constitutional matters, the
Clerk is expected to ensure that laws and principles are upheld and respected by both
political and public service leaders.
With the responsibility to carry out these important roles, it is essential that the Clerk has a clear
understanding of the rules, expectations and responsibilities assigned to all participants in the
government formation process. Specific conventions and responsibilities are essential to the
process and must be clearly enunciated and well understood.
In fact, Canada has procedural manuals that articulate some essential principles that help guide
the government formation process, including: The Manual of Official Procedure of the
Government of Canada (1968), Guidelines on the Conduct of Ministers, Secretaries of State,
Exempt Staff and Public Servants During an Election (2008) and Accountable Government: A
Guide for Ministers and Ministers of State (2011).4

4
Spreading information across these different sources may have helped perpetuate confusion on the proper
processes involved in forming governments in our country. Further, not all of these documents are publicly
accessible.

5
It was agreed that there would be great utility in developing concise, publicly-accessible
guidelines that consolidate, update and expand on the principles found in these documents.
Participants also agreed that consolidating into a single document the roles, responsibilities and
relationships of all stakeholders would help provide clarity and coherence.

Canada’s constitutional and administrative conventions

In the Westminster system, to which Canada adheres, conventions guide governments on how
best to meet procedural and constitutional principles. These conventions, some of which have
existed in British constitutional law for centuries, confer upon political leaders a wide degree of
discretion on when and how they might be applied. The nature of these conventions provides
both guidance and flexibility.
However, the unwritten nature of such conventions also presents challenges. Without clear
guidelines on when and how specific conventions are to be applied, there can be confusion
during times of crisis or uncertainty. Those who are entrusted to enforce the rules discover that
conventions are often misunderstood and inconsistently applied. In Canada, one convention in
particular exemplifies this confusion:

In situations where the government has lost the confidence of the House, the Principle of
Restraint (caretaker convention) guides public servants’ actions until a new government assumes
office. Although the Prime Minister and Cabinet retain many of their governing privileges during
an election period, the caretaker convention entrusts the Clerk with the authority to ensure that
no significant decisions are made that might bind a future government (particularly on issues that
relate to policy, appointments and spending) both during and immediately after an election.
In 2008, the Privy Council Office issued an important set of guidelines that defined the roles of
ministers and public servants during elections, and outlined the caretaker convention.5 In these
guidelines, the rules on how a government might function when the caretaker convention is
invoked are explained:
The conventional restriction limiting the extent to which the
Government should exercise its authority applies whether it has lost a
vote of confidence in the House or whether the Prime Minister has
asked for dissolution on his own initiative…This does not mean that
the government is absolutely barred from making decisions or
announcements, or otherwise taking action, during an election. It can
and should do so where the matter is routine and necessary for the
conduct of government business, or where it is urgent and in the
public interest…In short, during an election, a government should
restrict itself – in matters of policy, expenditure and appointments – to
activity that is: (a) routine, or (b) non-controversial, or (c) urgent and
in the public interest, or (d) reversible by a new government without
undue cost or disruption, or (e) agreed to by the Opposition (in those
cases where consultation is appropriate).6

5
Government of Canada. (2008). Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and
Public Servants During An Election. Ottawa: Her Majesty the Queen in Right of Canada, p. 1. These guidelines
were made available in 2011 through a request pursuant to Canada’s Access to Information Act.
6
Ibid, p.2.

6
These guidelines represent a significant improvement on previous documents that have outlined
the conduct and conventions guiding key stakeholders during periods of government formation.
However, greater clarity is required on more specific issues, including when the period of
caretaker government should be concluded.
Participants in our study also agreed that the lack of clear guidelines on how best to enforce the
caretaker convention has raised significant questions, especially regarding the Clerk’s role during
periods of government formation, including:

 What is the role of the Clerk in ensuring that the caretaker convention is observed?

 Should this convention be enforced during a national referendum?

 Can a “penalty” or other consequence be imposed in the event that a government violates the
caretaker convention?

 Can the Clerk brief Opposition leaders during a period when the carteaker convention is in
effect? If so, what rules might serve as a useful guide?

 And, does the convention also apply to law enforcement bodies, Crown corporations and
agencies?7
Further, understanding the timing, scope and authority of the caretaker convention is important
because the period between the dissolution of Parliament and first sitting is especially long in
Canada (an average of 144 days).8 In the United Kingdom, by contrast, the government
formation period lasts an average of 17 working days. In New Zealand, the average is even
shorter (1-2 weeks).9 Since Canada’s lengthy process positions our country as an outlier among
other Commonwealth nations, it is even more essential that key principles, including the
caretaker convention, are clearly articulated, well understood and made available to all
stakeholders.10
To be sure, the absence of clear guidelines can also have advantages. In Canada, an imprecise
interpretation of conventions has sometimes provided a great deal of flexibility in addressing
unique and complex challenges. Participants agreed that in order to maintain effective decision-
making, it is essential that some flexibility is preserved.
7
In the Cabinet Manuals of the United Kingdom, New Zealand and Australia, codifying rules and conventions have
helped resolve some of these questions, allowing each government to avoid confusion during times of crisis and
uncertainty.
8
A summary of research on this matter, conducted by Professor C.E.S. Franks, of Queen’s University, can be found
in Appendix 2.
9
There is a strong expectation among many New Zealanders that governments should form “relatively quickly”
after an election. Following the 1996 general election, it took the incoming government nine weeks to form and
meet the House. While this may have represented a unique situation (it was the first government elected under the
new proportional representation framework), the public was upset by the delay. Today, there is an expectation that
new governments will form 7-14 days following an election.
10
One participant also suggested that guidelines could require the Prime Minister to announce when the caretaker
convention will not be observed.

7
Guidelines are still needed to explain the “principles” of when and how key conventions are to
be enforced. Instead of instructing the Clerk on how to act, a principles-based set of guidelines
would provide a framework from which to operate, helping to improve clarity, transparency and
consistency. With a better understanding of the constitutional and administrative rules that apply
to periods of government formation, all stakeholders would be better positioned to carry out their
duties effectively.

The Clerk’s responsibilities to government

First and foremost, the public service is responsible to the government of the day. During periods
of stability or uncertainty, the Clerk must ensure that the government’s requests are executed
with the high degree of professionalism and integrity that has come to characterize Canada’s
public service. As discussed above, this is particularly important during a “hung” parliament
when numerous constitutional conventions will influence how leaders make decisions.
It might also be necessary for the Clerk to go beyond the role of informing the government and
helping to carry out policy. Many participants agreed that the Clerk of the Privy Council might at
times need to “challenge” certain assumptions held by elected representatives or the executive
when they are not based on past practices or institutional realities (speak truth to power). In a
non-partisan and professional manner, the Clerk is expected to communicate all legal,
organizational and constitutional limitations that might impact a government’s desired course of
action.
The Clerk’s responsibilities to government are further complicated during transition periods.
According to some participants, the commitment to serving an incumbent government has
caused challenges in cases where an election results in a change of administration. Under such
situations, the Clerk might be viewed as a “political ally” of the previous government.
In recent years, this practice has been common at the provincial level, where there has been a
high turnover rate in the senior-most ranks of the public service when a new premier assumes
office. At the federal level, by contrast, deputy ministers and clerks are seen as playing a non-
partisan role and are much more likely to retain their positions following a transition in
government, with the Clerk continuing in office at least through a period of transition.11
In order to maintain institutional memory and expertise, it is essential that incoming governments
retain senior public servants during and following a transition. Some participants agreed that
developing a closer working relationship between the public service and Opposition leaders
might be an effective confidence-building measure that should be considered. Of course, the
public service’s firm commitment to serving the government of the day must always be
maintained. But meeting with Opposition leaders on specific issues could serve the dual role of
informing and building trust between the public service and all Parliamentarians.

11
In New Zealand, for example, Chief Executives (Canada’s equivalent of Deputy Ministers) don’t change when a
new government is formed; they serve across administrations and provide essential briefings during transitional
periods. Although the Prime Minister makes appointments, changes to the institutional structure of government are
rare (i.e. creating or combining departments) and the transition process is both standardized and “much smaller”
compared to other jurisdictions.

8
Within the British Commonwealth there exists no consensus on when and how the public service
might brief or consult Opposition leaders. Whereas the UK Cabinet Manual stipulates that the
Cabinet Secretary must consult the Opposition during periods of uncertainty, in New Zealand
there is no tradition of briefing Opposition leaders ahead of an election, despite ongoing debate
on this issue.
Canada’s mixed record on Opposition briefings provides little direction on this matter.
Many participants agreed that Canada should adopt an informative, generic and predictable
briefing process that would help build trust between the public service and Opposition parties.12
This briefing process would be especially important during periods of uncertainty, such as in a
minority parliament.
Although one participant held the view that the Clerk should inform the Prime Minister, but not
necessarily request permission to brief the Opposition, there was a consensus that the Prime
Minister should approve or even initiate such briefings.
Establishing a predictable timeline for Opposition briefings would also be important for
providing senior public servants with clear expectations. Participants agreed that during a
majority parliament, Opposition briefings should occur within the final year of a government’s
mandate, since elections are then easier to predict. During a minority parliament, by contrast,
such briefings might be held when the government determines there is a high probability of an
election. When a vote of non-confidence is pending, for example, such discussions may need to
be considered.

Public servants and transition teams

Following an election, a political transition team that is assembled months earlier will engage
with the Privy Council Office with its own agenda, timelines and assumptions for how a new
government will work. These teams, usually headed by senior political figures, are charged with
the overwhelming task of laying the framework from which the new government will function.
The quick and effective formation of a government, implementation of political appointments,
and organizational and policy changes will all be vital for establishing stability in the first days
of a government’s life, and may ultimately define an administration’s entire term in office.
Political transition teams will be relieved to discover that they are not alone in carrying out this
monumental task. Anticipating that new staff and ministers will be unfamiliar with the
government formation process, senior public servants actively seek to inform and coordinate
with an incoming administration. By preparing briefing books and providing expert advice,
senior government officials are able to inform those charged with forming a government about
pressing issues, orders of process, organizational limitations and constitutional conventions.
Communicating many of the institutional processes to incoming staff allows the public service to
provide a sense of continuity that will make many of the aforementioned tasks easier.
Following an election the public service instructs the Prime Minister’s Office of the files
requiring immediate attention. It is often helpful if the public service chooses the top issues the

12
In determining how best to structure Opposition briefings, the UK Cabinet Manual provides a potentially useful
point of reference, differentiating between Cabinet Office-Opposition consultations that are held prior to, during and
following an election. For more information on the rules pertaining to Opposition briefings in the UK, please see
sections 2.13 to 2.16, 2.21, 2.29 and 2.30 of the UK Cabinet Manual.

9
Cabinet will need to consider since, according to one participant, the public service “can’t always
assume that transition teams will know which issues are of highest importance.” Regardless of
the Prime Minister’s style and approach, the public service should play an active role by
providing non-partisan options and considerations. For example, the public service should
instruct the Prime Minister to consider the rules around swearing in of ministers, and provide
clarity around the various issues that will arise as they select individuals to fill each Cabinet post.
This level of cooperation must be encouraged. Participants agreed that developing a strong,
mutually respectful relationship between transition teams and the public service is essential to a
successful transition process. By clarifying the rules and responsibilities that are so vital to the
government formation process, leaders in the public service and on transition teams will be better
positioned to understand and carry out their responsibilities.

Recommendations
1. The public service should develop principles-based guidelines on government
formation. Once approved, these guidelines should be publicly accessible and clearly
outline the relevant roles, responsibilities and conventions that are central to
government formation in Canada.

2. In supporting the government of the day, the public service provides advice in a non-
partisan manner. From time to time, the Clerk of the Privy Council may need to
provide a “challenge function” for the Prime Minister and Cabinet in order to ensure
that all organizational, legal and constitutional principles are understood.

3. Public service briefings for Opposition leaders on matters of government formation

prior to and during an election period should be considered, with the approval of the
Prime Minister. Guidelines should clearly outline when and how such briefings might
occur.

4. During election periods, regular dialogue between senior public servants and political
transition teams should be fostered.

10
The Role of Political Leadership
Parliament
Participants in our study identified a few areas related to government transition where greater
clarity is required on the role of Parliament. The first issue, highlighted above, concerns the
length of time between the dissolution of Parliament and the first sitting of the House of
Commons in a new Parliament. Without clear guidelines on when Parliament should reconvene,
lengthy delays call into question whether a new government enjoys the confidence of the House
– perhaps the most important principle in government formation. As discussed, a long
adjournment process places a greater burden on senior public servants who must determine the
number of conventions that are applicable and the duration for which they should be invoked.
Consideration could be given to providing greater clarity on when Canadians can expect
Parliament to reconvene following an election. This would help provide clarity and confidence in
our process of government formation.
Currently, there is disagreement over the rules and nature of confidence votes in Canada.
Without a better understanding of the rules governing confidence, key stakeholders are unable to
determine whether the government has the unilateral authority to proclaim matters of confidence.
Are confidence votes used too sparingly or too freely in our Parliament?
Some roundtable participants suggested that too often “trivial votes” are declared matters of
confidence and that giving Parliament more authority may limit this practice. Others suggested
that governments need to retain the right to define what is and what does not constitute a
confidence motion. For example, it could be a matter that is central to a government’s policy
agenda.
Despite differences of opinion, there was consensus that confidence votes are the domain of
Parliament and should not be included in guidelines on government formation.

The Crown
As a constitutional monarchy, Canada reserves important privileges for the Crown, yet the
Governor General does not have the legitimacy that comes with being popularly elected.
The absence of a manual to guide the Crown’s decisions has meant that Governors General
assume office without a detailed understanding of their constitutional responsibilities. Indeed,
Governors General often rely on constitutional advice from experts outside of government to
carry out their duties effectively.
Under such circumstances, it might not be surprising that a lack of clarity has helped perpetuate
significant constitutional crises. The infamous King-Byng dispute of 1926 and the more recent
2008 prorogation crisis both illustrated the confusion and competing interpretations that are
possible. Following both cases, Canadians realized that the lack of consensus on some of the
fundamental principles of government formation can have significant consequences. Thankfully,
these instances have been infrequent in Canada.

11
One participant suggested that in a situation where political leaders cannot come to an agreement
on who has the right to form a government, the Governor General might be the only legitimate
authority able to assume the role of arbiter. Is the Governor General the “adjudicator of last
resort”? If so, this may need to be spelled out in further detail.
Determining the roles and responsibilities of the Crown, especially during periods of uncertainty,
would lessen the chances of constitutional crises and help to provide some guidance for the
Crown during periods of uncertainty.
According to one participant, those charged with developing guidelines for government
formation might need to carefully consider the unique role of Canada’s Governor General. To
some extent, the UK system may not be a fair comparison to Canada’s, since the Queen and
Governor General are not synonymous. In the UK, the role of the Crown in the process of
government formation is intentionally minimal. It was noted that an important goal of the
recently approved UK Cabinet Manual was to ensure the separation between the monarchy and
the electoral process.
Nevertheless, those responsible for developing Canadian guidelines may wish to consider the
UK’s example. By clearly documenting the role and responsibilities of the Crown before, during
and following elections, Canadians would be able to ensure that the separation between the
monarchy and the electoral process is maintained.13 Participants agreed that Canada should
follow the United Kingdom’s lead in keeping the Crown above politics.

Recommendations
5. Parliament should meet within a prescribed period of time following an election.

6. Rules on confidence votes are properly in the domain of Parliament and should not be
included in government formation guidelines.

7. Special care should be taken to ensure that the Crown is kept above politics.

13
In Canada, the UK and New Zealand, parliamentarians ultimately decide who may form a government following
an election. During the government formation process, the Crown is expected to select a leader who is most likely to
command parliamentarians’ support, or confidence, in the House.

12
The Role of the Media and the General Public
Over the past generation, there has been a growing distrust between the news media and political
leaders. Indeed, the role of journalists in holding governments to account has grown in
importance in terms of providing transparency and accountability in democratic governance.
However, the media’s close scrutiny of the words and actions of elected representatives has
sometimes bred suspicion and distrust. In addition, strict rules on how public servants can
communicate with the media and general public has meant that information on important issues
is sometimes not shared, prompting a reliance on experts outside government to provide clarity
and context.
Although many believe the news media has moved from its more traditional information and
education role to something resembling entertainment, participants agreed that the media is
essential in communicating important information to the public and therefore an indispensable
element in the government formation process.
Studies have also shown that a majority of Canadians have a limited understanding of how and
why their government functions as it does.14 As demonstrated during the prorogation crisis of
2008, when the rules of government formation are not well understood, the public is unable to
understand or predict how a crisis might be resolved.
Senior public servants who are charged with establishing prospective Canadian guidelines on
government formation might wish to consider the utility of initiating a public engagement
campaign, a strategy that was embraced in both New Zealand and the United Kingdom when
Cabinet Manuals were being completed. These public consultations brought together elected
officials, public servants, the media and interested citizens, with the objective to increase the
public’s understanding for how their government works and to give citizens and stakeholder
groups the opportunity to comment on the draft Cabinet Manual and suggest changes. Today,
many in New Zealand and the United Kingdom view the public’s involvement in this process as
being an important element in public education and building popular support for the
establishment of their Cabinet Manuals.
Further, as a result of being engaged in the process in the United Kingdom, the news media
largely refrained from publishing sensationalized stories during the period that led to the
establishment of a coalition government. This strategy of engaging the media as an active
participant in the process contributed to an open and transparent resolution to a situation that
would otherwise have been more mysterious and chaotic.
As in the UK, Canada’s non-partisan public service would be well positioned to convene,
educate and consult the media and public during the development of prospective guidelines on
government formation.

14
Ipsos Reid. In Wake of Constitutional Crisis, New Survey Demonstrates that Canadians Lack Basic
Understanding of our Country’s Parliamentary System. (December 2008).

13
Such consultations could help answer important questions, such as:

 Should standardized communication processes be developed between the news media,

constitutional scholars and the public service in order to better share information, increase
transparency, and help inform the public?

 Should the news media seek to immediately pronounce an election-night winner, or is there a
duty to be cautious in the event of an uncertain election outcome?

 How can interested non-government stakeholders (i.e. the news media, scholars and the
general public) contribute to a better understanding of the government formation process?

Recommendations
8. Consideration should be given to ways of engaging the news media and the public in the
process of developing guidelines on government formation.

9. The public service is best positioned to provide a neutral “safe space” to convene,
inform and educate all stakeholders on the process of government formation.
Discussions should ideally take place during periods when a government is not at risk of
being defeated or when Parliament might be dissolved.

14
Conclusion
Over the past year, Canada’s Public Policy Forum has worked to identify how elected
representatives, senior public service leaders and the news media might help provide greater
clarity on the rules that guide stakeholders during periods of government formation. The
objective of this study is not to recommend that a formal Cabinet Manual be created in Canada,
similar to the UK and other jurisdictions. While such a Manual may be worthy of consideration,
our goal is more modest and can be summed up in the proposition that a simple and clear set of
principles-based guidelines for government formation should be developed. And, when
approved, these guidelines should be made accessible to the Canadian public.
This report is meant to help provide a foundation or starting point for those who might develop
such guidelines. It is our intent that the recommendations in this report will help initiate a
broader discussion on how governments are formed in our country, and what roles key
stakeholders might fulfill during periods of uncertainty.
We already have some key documents that could be used to help in the development of
guidelines, including:

 The Manual of Official Procedure of the Government of Canada (1968);

 Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public
Servants During an Election (2008); and

 Accountable Government: A Guide for Ministers and Ministers of State (2011)

It is our recommendation that consideration be given to establishing a set of concise, publicly-
accessible guidelines that consolidates, updates and expands on the principles described in these
documents. As discussed above, the responsibilities and relationships that transition teams and
the news media exercise in the government formation process requires greater clarification. More
specific instructions would also help guide the Clerk of the Privy Council on when to brief
Opposition leaders and how to carry out duties in situations where responsibilities may conflict.
Consideration should also be given to making this set of guidelines, when approved, available on
government websites in both official languages in order to ensure greater transparency and
access.
Also, the experiences of the United Kingdom and New Zealand in establishing their Cabinet
Manuals might provide some useful insights to those who might be asked to develop government
formation guidelines in Canada. In these Commonwealth countries, the decision to establish a
Cabinet Manual was precipitated by a combination of factors, including:

 a period of constitutional uncertainty;

 active support among the political leadership, and;

 a campaign to educate the public.

In New Zealand, the process to establish rules on government formation was driven in large part
by the adoption of the mixed-member proportional (MMP) electoral system during the 1996
general election. This new system increases the chances of a minority parliament, raising

15
concerns among elected representatives and the public on whether and how such arrangements
would function in New Zealand.
In 2001, New Zealand established a publicly-accessible Cabinet Manual that devoted a full
chapter to the rules that guide policymakers during periods of government formation and
transition.

As in New Zealand, the United Kingdom’s Cabinet Manual represents the evolution of
significant efforts both inside and outside government to draw attention to the important need for
clarity around the operation of government in a parliamentary context, including the rules of
government formation.

Much of the work in the UK to initiate a dialogue on government formation was led by the non-
partisan Institute for Government in collaboration with the Constitution Unit of the University
College of London. Their joint report, Making Minority Government Work,15 was the result of
several years of work and represented significant consultations with politicians, senior civil
servants, parliamentary staff, academic experts and journalists, both in the UK and in other
Westminster-style countries.

The now-finalized Cabinet Manual has been lauded for its simplicity of language and clarity in
identifying the rules and practices of modern governance as they currently exist in the UK.
Rather than serving as an exclusive guide for public servants and politicians, it is also considered
a significant document for public education.
In Canada, the return in 2011 to a period of majority parliaments has reduced the likelihood that
a constitutional crisis related to this issue will soon arise. Likewise, there is also little indication
that guidelines on government formation are high on the public agenda.
Nevertheless, participants in our study agreed that the best time to commence a process of
establishing such guidelines would be during a period of political stability. The hyper-partisan
atmosphere that often characterizes minority parliaments can make it difficult for elected leaders
to look beyond personal or party advantage. The election of a majority parliament has now
created the ideal “peace-time” conditions allowing for a neutral and reasoned discussion on this
important subject.
With the prospective support of the Prime Minister, political parties, the public service and news
media, we have an opportunity to take the example set by the UK and New Zealand to create
publicly-available guidelines for the successful and smooth process of government formation in
our country.
Instead of being required to consider these issues anew with every change of government,
guidelines on government formation would help serve as a bridge between administrations and
reduce the confusion that can sometimes arise under such circumstances. The outcome of such
an exercise in Canada would be a great service to all stakeholders in the government formation
process and consistent with the Canadian tradition of peace, order, and good government.

15
Hazell, Robert et al. (2011). Making Minority Government Work: Hung parliaments and the challenges for
Westminster and Whitehall. London: Institute for Government. Accessed online at: http://www.ucl.ac.uk/public-
policy/UCL_expertise/Constitution_Unit/147.pdf

16
Appendix 1
Government Formation in Canada Study Participants

Paul Benoit Susan Delacourt

Senior Counselor Senior Writer
Hill & Knowlton in Ottawa Toronto Star

Margaret Bloodworth Adam Dodek

Former Associate Secretary to the Cabinet Professor
and National Security Advisor University of Ottawa
to the Prime Minister
Government of Canada
C.E.S. (Ned) Franks
Professor Emeritus
The Honourable Jocelyne Bourgon Queen’s University
Former Clerk of the Privy Council
Government of Canada
Giles Gherson
Deputy Minister of Policy and Delivery and
His Excellency Mr. Justin Brown Associate Secretary of the Cabinet
High Commissioner of Australia to Canada Government of Ontario
Commonwealth of Australia

V. Peter Harder
Peter Burn Former Deputy Minister
Partner Treasury Board, Solicitor General,
Gowlings Citizenship and Immigration, Industry and
Foreign Affairs and International Trade.

Derek Burney
Former head of the Conservative Transition Alex Himelfarb
Team (2006 and 2007). Former Clerk of the Privy Council
Government of Canada

Mel Cappe
Former Clerk of the Privy Council. Peter Hogg
Government of Canada Professor Emeritus
Osgoode Hall Law School

The Right Honourable Adrienne

Clarkson The Right Honourable Michaelle Jean
Former Governor General Former Governor General
Government of Canada Government of Canada

17
Rebecca Kitteridge Iain Rennie
Secretary to the Cabinet and Clerk of the State Services Commissioner
Executive Council Government of New Zealand
Government of New Zealand

Colin Robertson
Gary Levy Senior Strategic Advisor
Editor McKenna, Long and Aldridge
Canadian Parliamentary Review

Peter H. Russell
The Honourable Kevin Lynch Professor Emeritus
Former Clerk of the Privy Council University of Toronto
Government of Canada

Jeffrey Simpson
Gregory Marchildon National Affairs Columnist
Professor Globe and Mail
Johnson-Shoyama Graduate School of
Public Policy at the University of Regina
The Honourable Paul Tellier
Former Clerk of the Privy Council
Cheryl Milne Government of Canada
Executive Director
David Asper Centre for Constitutional
Rights University of Toronto Michael Webster
Deputy Secretary of Cabinet
Government of New Zealand
David J. Mitchell
President & CEO
Canada’s Public Policy Forum Paul Wells
Senior Columnist
Maclean's magazine
Sir Gus O’Donnell
Former Secretary of the Cabinet and Head
of the Home Civil Service David Zussman
Government of the United Kingdom Jarislowsky Chair in Public Sector
Management
University of Ottawa.
Peter Oliver
Professor, Faculty of Law
University of Ottawa

His Excellency Andrew Pocock

High Commissioner of the UK to Canada
Government of the United Kingdom

18
Observers

Lois Claxton Yvan Roy

Senior Advisor to the Governor General of Deputy Secretary to Cabinet, Legislation
Canada and House Planning and Machinery of
Rideau Hall Government
Privy Council Office
Government of Canada

19
Appendix 2
Parliaments, 1945-2008
Dissolution, Elections, First Sittings, Etc.

CES Franks, 23 March 2011

Election Election Date Recess prior to Dissolution to Dissolution to Election to Recess to

Dissolution Election First Sitting First Sitting First Sitting
(days) (days) (days) (days) (days)

40th 2008.10.14** 78 37 72 35 150

39th* 2006.01.23** 0 55 125 70 125
38th 2004.06.28** 8 36 134 98 142
37th 2001.11.27 0 36 99 63 99
36th 1997.06.02 0 36 148 112 148
35th* 1993.10.25 83 47 131 84 214
34th 1988.11.21 0 51 72 21 72
33rd* 1984.09.04 0 57 119 62 119
32nd* 1980.02.18 0 66 122 56 122
31st* 1979.05.22** 0 57 197 140 197
30th 1974.07.08 0 60 144 84 144
29th 1972.10.30** 0 59 125 66 125
28th 1968.06.25 26 63 142 79 168
27th 1965.11.08** 70 61 132 71 202
26th* 1963.04.08** 0 61 99 38 99
25th 1962.06.18** 0 60 161 101 161
24th 1958.03.31 0 58 100 42 100
23rd* 1957.05.10** 0 59 185 126 185
22nd 1953.08.10 29 58 152 94 181
21st 1949.06.27 0 58 137 79 137
20th 1945.06.11 0 56 143 87 143

Average all elections 14 54 130 77 144

*Result change of 12 66 154 91 155

governing party
**Result minority Parl't 17 56 137 83 154
Result Majority Parliament 12 54 126 72 137

Source: Parliament Info website, A to Z Index, Various Tables

Appendix 2 continues

20
Appendix 2 continued

Observations: Parliaments, 1945-2008: Dissolution, Elections, First Sittings, Etc.

CES Franks, 23 March 2011

1) The data in my Table “Parliaments, 1945-2008: Dissolution, Elections, First Sittings,” is

drawn from various tables on the Parliament Info website. There are minor variances between
the data in some of the tables on this site, but these variations have no impact upon the results
presented in my table.

2) The period covered, from 1945 to 2008, includes 21 of the 40 general elections in Canada
from 1867 to 2008. This period also covers sixty-five of the one hundred and forty-three years
(40%) of Canada’s existence.

3) In nine of the twenty-one elections from 1945 to 2008 the House was already in recess when a
Parliament was dissolved for a general election. These elections, and the number of days the
House had been in recess at the time of dissolution, are identified in the “Recess Prior to
Dissolution” column in the table. This period of recess has been as long as 83 days (1993). On
three occasions it has lasted more than two months.

4) During the times the House is in recess a government constitutionally possesses and exercises
the full powers of a government that enjoys the confidence of the House. The recess period is
not normally considered part of the election period. I shall raise some questions about this
below.

5) Between 1945 and 2008, on average 146 days, or about four and a half months, has elapsed
between the last sitting of the House in one Parliament and the first sitting of the next Parliament.

6) The longest period from the last sitting of one Parliament to first sitting of the next in this
period, 214 days, occurred between the 34th and 35th Parliaments, in 1993-4. The House
adjourned for the summer on June 17 of 1993. After a one-day meeting of Parliament for the
formal occasion of royal assent - no question period, motions, or debate, and most members
absent - on June 23, the summer recess continued until Parliament was dissolved on September
8, 76 days later. The total length of the summer recess, ignoring the purely formal occasion of
royal assent, was 83 days. The House was still in recess when it was dissolved on September 8.
The 35th general election was held on October 25, after an election period of 47 days. The new
Parliament did not meet until January 16, 2004, 84 days after the general election. The
government changed as a result of this election, from a majority Progressive Conservative
government to a majority Liberal government. When Parliament met for the first time in the 35th
Parliament on January 16, 2004, 214 days, or seven months, had elapsed since the last sitting of
the House.

21
7) The longest period between the end of one Parliament and the beginning of the next when
there was both a change of party and the result, was the minority Parliament created by Canada’s
31st general election on May 22, 1979. Parliament had not been in recess at the time of the
dissolution of Parliament on March 26, 1979. The election period lasted 57 days. Prime
Minister Trudeau’s Liberals won fewer seats than Opposition leader Joe Clark’s Progressive
Conservatives in the 31st election. Joe Clark took over as Prime Minister after Trudeau resigned
on June 3, 1979 twelve days after the general election. Parliament did not meet until September
10, 140 days after the general election, and 128 days after Joe Clark had become Prime Minister
in the minority Parliament. By then a total of 197 days, more than six months, had elapsed since
the last meeting of the House of Commons. Prime Minister Joe Clark had governed for more
than four months without meeting the House in this minority Parliament to prove he enjoyed its
confidence.

Soon after the House met, the Clark government was defeated on a vote of confidence, and the
session ended when the 31st Parliament was dissolved on December 12. In the subsequent
general election, held on February 18, 1980, 66 days later, former Prime Minister Trudeau won a
majority. Thirteen days later, on March 2, Prime Minister Joe Clark resigned and Trudeau
became Prime Minister once again. However Trudeau did not meet Parliament until 43 days
later, on April 14, 1980. The total period between the last sitting and dissolution of the 31st
Parliament on December 12, 1979 and the first sitting of the 32nd on April 14, 1980 was 122
days.

8) The application of the caretaker provisions must be considered in the context of three different
sections to the election periods, between the last sitting of one Parliament to the first sitting of
the next: One, the period when the House is in recess from adjournment (or prorogation) to the
time when the Parliament is dissolved; Two, from the dissolution of one Parliament to the
ensuing general election; Three, from the general election to the first meeting of the next
Parliament.

Traditionally, one, the period when the House is in recess, has not been considered part of the
election period and a government has retained its full powers during it. This period has, however,
as the table shows, on occasion been longer than the election period itself. In other words the
government has enjoyed its full powers, with the caretaker provisions not in effect, without
having to face the House to defend its use of its powers during this period of recess. It is worth
considering when, and under what circumstances, this period of recess immediately preceding
dissolution should be governed by some version of the election period caretaker rules. At the
same time it must be recognized that traditionally it has been accepted that when Parliament is in
recess a government that continues to enjoy the confidence of the House continues to function as
government in the full sense of the term, with none of the restrictions that might be imposed on a
caretaker government during an election period. The caretaker provisions only come into effect
when a Parliament is dissolved. An unscrupulous government that knows that it is likely to lose

22
a forthcoming election might want to prolong this period of pre-election recess in order to enjoy
the benefits of office for as long as possible.

Two, the election period itself is the obvious period during the caretaker rules should be in force.
However, even here Canadian experience shows a lack of consistency. The fact that the rules
themselves have been kept secret has been no help in improving public understanding of the
mysteries of the processes of parliamentary government, or how the system copes or fails to cope
with the uncertainties about which party enjoys the confidence of the House that elections
invariably entail. Further, whatever Canadian document exists from all accounts is skimpy and
much less thorough than its British counterpart, which, it should be noted, is a public document.

Three, the period between an election and the meeting of the next Parliament can endure a very
long time in Canada, especially when there is a change of government, or the result of the
election is a minority Parliament. When there is a change of governing party the post-election
period has averaged 91 days. When the result is a minority Parliament the post-election period
has averaged 83 days. In a very real sense, until a government has met the House and survived a
vote of confidence after an election, it has not proven that it enjoys the confidence of the House.
It is not clear if, when, or under what conditions the caretaker conventions (or some portion of
them) should rule during this often extended post-election period of potential uncertainty when a
government retains or assumes power but has not met the House and proven that it enjoys its
confidence.

23
Bibliography
Blick, Andrew. (2011). A Memo to Gus & Nick. Ottawa: Parliamentary Brief Online.

Cameron David R. and Graham White (2001). Cycling into Saigon: The Conservative Transition
in Ontario. Vancouver: UBC Press.

Cappe, Mel. (2011). Memo for Workshop on Constitutional Studies. Toronto: David Asper
Centre for Constitutional Studies. Accessed online at:
http://www.aspercentre.ca/Assets/Asper+Digital+Assets/Events+and+Materials/Constitutional+
Conventions+Workshop/Workshop+Papers/Cappe-caretaker-article.pdf

Government of Canada. (2011). Accountable Government: A Guide for Ministers and Ministers
of State. Ottawa: Her Majesty the Queen in Right of Canada. Accessed online at:
http://www.pm.gc.ca/grfx/docs/guidemin_e.pdf

Government of Canada. (2008). Guidelines on the Conduct of Ministers, Secretaries of State,

Exempt Staff and Public Servants During An Election. Ottawa: Her Majesty the Queen in Right
of Canada.

Government of Canada. (1968). The Manual of Official Procedure of the Government of

Canada. Ottawa: Her Majesty the Queen in Right of Canada.

Government of the United Kingdom (2011). The Cabinet Manual: A guide to laws, conventions
and rules on the operation of government. London: Cabinet Office, Whitehall. Accessed online
at: http://www.cabinetoffice.gov.uk/sites/default/files/resources/cabinet-manual.pdf

Ekos Research Associates. (1995). Direction for Reform: The Views of Current and Former
Deputy Ministers on Reforming the Ontario Public Service. Ottawa: Public Policy Forum.

Franks, C.E.S. (2011). Parliaments, 1945-2008: Dissolution, Elections, First Sittings, Etc.
Kingston.

Hazell, Robert et al. (2011). Making Minority Government Work: Hung parliaments and the
challenges for Westminster and Whitehall. London: Institute for Government. Accessed online
at: http://www.ucl.ac.uk/public-policy/UCL_expertise/Constitution_Unit/147.pdf

Ipsos Reid. In Wake of Constitutional Crisis, New Survey Demonstrates that Canadians Lack Basic
Understanding of our Country’s Parliamentary System. (December 2008). Accessed at
http://www.dominion.ca/DominionInstituteDecember15Factum.pdf

Kitteridge, Rebecca. (2006). The Cabinet Manual: Evolution with Time. Canberra: 8th Annual
Public Law Forum. Accessed online at: http://www.dpmc.govt.nz/sites/all/files/reports/the-
cabinet-manual-evolution-with-time.pdf

24
Larson, Peter, (2001). Changing the Guard: Effective Management of Transitions in
Government. Ottawa: Public Policy Forum. Accessed online at:
http://www.ppforum.ca/sites/default/files/changing_the_guard.pdf

MacDonald, Nicholas A. and James W.J. Bowden. (2011). The Manual of Official Procedure of
the Government of Canada: An Expose. Edmonton: Constitutional Forum Constitutionnel.
Accessed online at:
http://ejournals.library.ualberta.ca/index.php/constitutional_forum/article/view/12120/9051

Mitchell, David J. and James McLean. (2011). Government Formation in Canada: Public Policy
Forum Ottawa Roundtable. Ottawa: Public Policy Forum. Accessed online at:
http://www.ppforum.ca/sites/default/files/Government_Formation_Roundtable_Summary_Repor
t_eng_web.pdf

Mitchell, David and Mary-Rose Brown. (2011). Government Formation: The Need for Clear
Guidelines, Roundtable with Sir Gus O’Donnell. Ottawa: Public Policy Forum. Accessed online
at: http://www.ppforum.ca/sites/default/files/government_formation_report_june.pdf

New Zealand Government. (2008) Cabinet Manual. Wellington: Cabinet Office, Department of
the Prime Minister and Cabinet. Accessed online at:
http://cabinetmanual.cabinetoffice.govt.nz/files/manual.pdf

Russell, Peter H. (2011). The Principles, Rules and Practices of Parliamentary Government:
Time for a Written Consolidation. Toronto.

Russell, Peter H. and Cheryl Milne (2010). Adjusting to a New Era of Parliamentary
Government. Report of a Workshop on Constitutional Conventions. Toronto: University of
Toronto. Accessed online at:
http://www.aspercentre.ca/Assets/Asper+Digital+Assets/Events+and+Materials/Constitutional+
Conventions+Workshop/Final+Report/report-english.pdf

Wright, John and Marc Chalifoux. (2008) In Wake of Constitutional Crisis, New Survey
Demonstrates that Canadians Lack Basic Understanding of our Country’s Parliamentary
System. Toronto: Ipsos Reid. Accessed online at:
http://www.dominion.ca/DominionInstituteDecember15Factum.pdf

25
ppforum.ca