The Constitutional Formation
of the Government of New Brunswick
In a system of Responsible Government, constitutional principles and practices are designed to ensure the government is constituted by authority of the people. How do these principles and practices operate in a case like the recent election in New Brunswick, where it is not clear that any party can command a majority of the legislature?
It is the duty of the lieutenant governor to choose a member of the legislature he or she believes can command a majority to attempt to form the government. This leader then forms a cabinet with other members based on an agreement regarding the political program the administration will pursue upon the approval of the legislature.
The leader then writes up the Speech from the Throne with the Lieutenant Governor, who addresses the legislature setting out the priorities, policies and measures the administration will pursue upon its approval.
If the legislature, possessed of the authority of the people by election to speak and act on their behalf, approves the Speech from the Throne, it confides the authority in the administration to pursue this program and govern the province until such time as it revokes this authority by a vote of non-confidence. If the legislature votes down the Speech from the Throne,it refuses to authorize this leader to direct the government on behalf of the people.
The lieutenant governor would then reconsider his or her choice of leader. If need be, according to Lord Elgin, the lieutenant governor must “make himself a mediator and moderator between the influential of all parties” to help them conciliate the interests represented in the legislature into a program the people can support. Only failing this should the lieutenant governor impose the burden of a new election on the people.
In New Brunswick, Lieutenant Governor Jocelyne Roy-Vienneau authorized incumbent Premier Brian Gallant to form the government, even though he didn’t win a majority or even a plurality. According to Lord Durham, it is up to the Lieutenant Governor to choose one she believes can command a majority of the legislature. As he wrote in his famous report in 1839, this is one of “those wise provisions by which alone the working of the representative system in any country be rendered harmonious and efficient.”
She may have been influenced by Mr. Gallant’s position as the incumbent Premier at the time of the election. When Responsible Government was conceded in the Province of Canada by Lord Elgin in 1848, at a time when the people’s representatives in the legislature had the freedom to vote according to their conscience, it was not clear who would vote for the political program the prospective government sought to implement.
The first order of the legislature was to appoint a speaker. The incumbent leader from Upper Canada, William Draper, nominated Sir Allan MacNab. Robert Baldwin objected that Draper’s choice was not bilingual and he proposed Augustin-Norbert Morin. The assembly elected Morin speaker by a significant majority.
Even so, Draper crafted the Speech from the Throne with Lord Elgin. Only when the legislature passed Baldwin’s motion to the effect that Draper’s ministry did not enjoy the confidence of the country did Lord Elgin call on Louis-Hippolyte Lafontaine to form the government. So there would seem to be some precedent for an incumbent premier to continue in his position until a vote of non-confidence forces him to resign.
If the legislature votes down the Gallant Government’s Speech from the Throne, the Lieutenant Governor’s duty remains. The majority vote against Mr. Gallant would indicate the possibility that Opposition Leader Blaine Higgs could command a majority. If she called upon Mr. Higgs and Mr. Higgs assured him that the three People’s Alliance members would vote with him to give him a majority, then the Lieutenant Governor must permit the will of the people as expressed by their duly authorized representatives in the legislature to confide the government in Mr. Higgs.