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There’s an election on, so who’s running the country?

Canada's Prime Minister Stephen Harper speaks during a campaign stop at the WaterStone Estate and Farms in King Township, Ontario, August 20, 2015. Harper announced policies that would provide tax relief for adoptive families if he is re-elected in the federal election on October 19. REUTERS/Mark Blinch

We take for granted that government will continue when an election campaign is underway. Public works will get done, cheques will be sent out, foreign policy matters dealt with.

But how does that happen, exactly, when the Governor General has dissolved Parliament and the government has lost its mandate? And what’s to stop the ruling party from nudging the levers of power to make inroads with voters come polling day?

Incumbency offers huge potential advantages. That’s why there’s something called the Caretaker Convention, which sets the rules of how governments can operate during election campaigns and after the vote before a new government is sworn in.

The convention has existed for about as long as Canada itself but largely out of sight of the public until earlier this month when the government was pressured to post the latest version of it on the Privy Council Office’s web site on Aug. 2, the day the election was called.

“This is the first time that a government has just voluntarily published the guidelines,” said political scientist Andrew Heard of Simon Fraser University.

“Many people have just not understood why those were not made clear from the beginning.”

It was a closely held document until fairly recently, said Ted Tsu, an Ontario Liberal MP who tabled a motion in the House of Commons in 2012 to make it public..

“Nobody really knows how long the Privy Council Office has had written guidelines about the Caretaker Convention,” Tsu, told Yahoo Canada.

“All we know is that in 2008 there was a secret document that was not that secret because somebody revealed it through an access-to-information request.”


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The current version differs little from the 2008 one released under the Access-to-Information and Privacy Act in 2011. It adds wording on the Internet, including social media. There’s also a new paragraph authorizing continuation of any international treaty negotiations underway when an election is called.

That provision is important to avoid freezing crucial talks such as the multi-nation Trans-Pacific Partnership. If an agreement is reached, though, Tsu said the convention does not require the government to bring in opposition leaders who might wind up leading the country, unlike Australia’s Caretaker Convention.

“If the minister agrees to something with other countries during the election campaign, the minister really should be consulting with the opposition parties and making sure there’s at least a rough consensus for any action that binds Canada as a result of a decision the minister makes,” he said.

Caretaker Convention gives voters a yardstick

Canadians intuitively know when a governing party is taking undue advantage, and if they don’t, journalists are only too happy to point it out. But this is the first time voters have an actual yardstick to measure with. The transparency is welcome.

The convention exists to do two things: It allows cabinet ministers and their senior deputies in the public service to carry on routine business during a campaign, and it provides guidelines on what’s considered routine and what could be interpreted as having a potential impact on the election.

In a Westminster-style system like Canada’s, governments require the confidence of Parliament to exercise power. When it’s dissolved, either because of a confidence vote or by the Governor General at the prime minister’s request, its legitimacy disappears until after an election when the House reaffirms that legitimacy.

But government has to continue in some form and ministers retain their powers.

“They have to respond to emergencies and so on,” said Tom Axworthy, a former principal secretary to prime minister Pierre Trudeau and now a senior fellow at the University of Toronto’s Munk School of Global Affairs.

“So you still have to have a functioning government to maintain the state in that period where you don’t have the legitimacy of the parliamentary backing.”

The convention is only a few pages long and it’s not microscopically specific. A lot is left to the judgment of ministers and their senior bureaucrats, sometimes with involvement by the clerk of the Privy Council, Canada’s highest ranking public servant.

The last word, though, belongs to the minister. It opens the door to potential mischief if incumbents don’t adhere to the convention’s spirit.

Mel Cappe, clerk of the Privy Council during Jean Chretien’s last term as prime minister, has argued the rules are “ambiguous and inherently lacking in specificity and predictability.

“They rely on judgment,” Cappe, now a professor at the University of Toronto’s School of Public Policy and Governance, said in a 2011 presentation to the university’s David Asper Centre for Constitutional Studies. “They should. But they can be clarified and the principles better articulated.”

There have been a few cases of government’s pushing the convention’s limits, Cappe said.

Though not a national election, the Trudeau government was challenged after Export Development Canada ran a TV ad during the 1981 Quebec referendum showing a flight of Canada geese winging through the sky as O Canada played.

Late appointments helped sink Liberals in ‘84 election

John Turner’s decision not to suspend a raft of plum appointments the retiring Trudeau made to the Senate, the judiciary and Crown corporations made just before Turner called a snap election in 1984 could also be seen as a violation of the convention, Cappe suggested. The rules advise against making such appointments during a campaign, which Turner launched a week after taking over as prime minister.

Turner paid dearly when Progressive Conservative Leader Brian Mulroney hammered him about the decision during their televised debate.

“You had an option, sir, to say ‘no’, and you chose to say ‘yes’ to the old attitudes and the old stories of the Liberal Party,” Mulroney thundered. “That sir, if I may say respectfully, that is not good enough for Canadians.”

It became the campaign’s “gotcha” moment and Turner’s Liberals lost badly .

But perhaps the most egregious perceived breach of the convention was made by Mulroney’s lame-duck successor, Kim Campbell. The Tories had been negotiating to privatize Toronto’s Pearson International Airport. Campbell signed the contracts while campaigning in 1993.

Few people considered handing over control of Canada’s busiest airport to the private sector as a piece of contractual routine.

“There certainly was a big controversy during the campaign over it and another nail in the Tory coffin,” said Heard.

Chretien vowed to cancel the deal, and promptly did when the Liberals crushed the Tories at the polls. The Tory dominated Senate condemned that decision after holding hearings. A compromise solution saw the airport transferred to the Toronto Airport Authority’s control.

There have been more positive examples of the convention working, Cappe pointed out.

The Progressive Conservatives were finalizing the North American Free Trade Agreement during the ’93 campaign and kept opposition leaders briefed in case they would have to conclude it. Chretien campaigned promising to cancel it, but didn’t.

When Tory Prime Minister Joe Clark’s minority government lost a confidence vote on its budget in late 1979, forcing an election the following February, Clark put on hold a $2-billion contract to buy new fighter jets for the air force. Under the Caretaker Convention it was a major decision better left to a newly-elected government.

Clark and his foreign affairs minister, the late Flora MacDonald, also found themselves knee deep in an international crisis during the campaign when the government agreed to back a plan by Ken Taylor, Canada’s ambassador to Iran, to spirit several U.S. diplomats who’d dodged the takeover of their embassy out of the country.

“That to me is something that a prime minister could and kind of should do on the quiet even while an election was on,” Heard observed.

No evident breaches of Caretaker Convention so far

The current campaign so far seems relatively free of convention-flouting actions.

Some have suggested Prime Minister Stephen Harper should not have announced the appointment of a new justice of the Supreme Court of Canada, Russell Brown, on July 27, less then a week before calling the election. The appointment took effect Aug. 31.

And there were some arched eyebrows when the Prime Minister’s Office issued a statement saying Harper had spoken with Bank of Canada Governor Stephen Poloz over last week’s stock-market turmoil. No one objected to the conversation but the statement the PMO sent to reporters was seen as unusual, perhaps intended to reinforce the Conservatives as steady stewards of the economy.

“In my time I can’t ever remember us during an election advertising government business that Mr. Trudeau was doing as we were campaigning,” Axworthy recalled.

Routine business was handled by a group of Ottawa- and Montreal-area ministers who were available to meet weekly to pass orders-in-council to authorize routine business put forward by the bureaucracy, he said.

There’s bound to be some dynamic tension between ministers and their deputies, especially if the government is pushing the boundaries, Axworthy said.

“If a minister was trying to do something that didn’t pass the smell test, the deputy would not act on that request from the minister or the minister’s office, say, without informing the Privy Council first and it would go to the clerk of the Privy Council who is secretary of the cabinet,” he said.

A dispute might make it all the way up to the prime minister but there’s no objective arbiter of what’s OK and what’s not. Ultimately the authority rests with the minister, as do the political consequences.

“We’ve got an election going on and if we agree with the prime minister’s judgment we vote for him,” said Heard. “If we disagree we vote for someone else.”

There’s always a possibility, Heard continued, that a governing party facing defeat at the polls could ignore the convention with a scorched-earth approach designed to hamstring the new government by saddling it with an unwanted policy or making it hard to implement its campaign promises.

“Ultimately if it’s a big enough issue, in theory the Governor General could say, ‘what are you doing? I don’t know if I can sign this’,” Heard speculated.

“It would have to be something appallingly egregious for the Governor General to refuse to act on it. But there’s a lot the government can do without the Governor General’s involvement.”