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Should party with most seats get first crack at forming government? Here’s how minorities work

WATCH: Growing speculation Canada will end up with minority government

The last thing most Canadians likely picture when they cast their ballots is getting a front-row seat to a constitutional debate.

But if current polling projections play out, that’s exactly what they’re likely to get.

With no federal party taking the lead in these final days of the election campaign, the likelihood appears to be growing that Canadians will wake up to a minority government on Oct. 22, and already party leaders are pulling out their rhetorical spears to prepare for what could be a challenging, but far from unprecedented, political battle.

It’s been eight years since Canada’s last minority government under former prime minister Stephen Harper, so here’s a refresher on how things appear set to go down.

What is a minority government?

There are 338 seats in the House of Commons, and whichever federal party controls the majority of those — 170 seats or more — forms what’s known as a majority government, meaning they don’t need the votes of members from other parties to pass their government’s legislative agenda.

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But if no party wins at least 170 seats, the parties need to work together to get virtually anything done.

COMMENTARY: Minority governments can do some good, but they can also spell trouble

This is known as a minority government, because each party holds only a minority of the total available seats.

Minority governments take a couple of different forms: a coalition is when two or more parties form government together, with members from all included parties getting spots in the federal cabinet; a confidence and supply arrangement is when one party tries to form government and get support from other parties on a case-by-case basis.

Federal Election 2019: Scheer claims a coalition shouldn’t be allowed
Federal Election 2019: Scheer claims a coalition shouldn’t be allowed

That sounds pretty simple — why is it complicated?

Here’s where things get tricky, though: who decides which party gets the first crack at forming a minority government?

This is the question that’s been emerging in the last several days, with Conservative Leader Andrew Scheer arguing that whichever party holds the most seats in a minority scenario should get the first attempt to govern, and making the case that any kind of alliance between a second- and third-place party is illegitimate.

Scheer warns voters against idea of Liberal-NDP coalition
Scheer warns voters against idea of Liberal-NDP coalition

That’s not actually true, though, says one parliamentary expert.

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“It’s true that there is, I guess, the symbolism to having the most seats,” said Paul Thomas, a senior research associate at the Samara Centre for Democracy who has spent more than a decade researching Canada’s political system.

“But our system is such that election day doesn’t actually lead to the formation of government directly. We elect the House of Commons — in many ways, it’s 338 small elections and we send off our MP to Ottawa and it’s the MPs together who choose who gets to be government. Governments have to maintain what’s called the confidence or the support of the majority of MPs.

Trudeau deflects questions about idea of Liberal-NDP coalition
Trudeau deflects questions about idea of Liberal-NDP coalition

“So the Conservatives might get the most seats, but if the Liberals can maintain — or a coalition of Liberals and other parties or various arrangements — can maintain the confidence of the majority of MPs, they can form government or remain in government.

Canada uses the Westminster parliamentary system, modelled on what’s in place in the U.K.

Not all of our rules are actually written down — a lot has to do with custom and tradition.

Who gets the first chance to form government is one of those questions without a written answer.

The tradition is that the incumbent government — which remains the government until any new one is formed — is allowed to seek the confidence of the House of Commons by attempting to form a coalition with other like-minded parties, or by getting their support case-by-case.

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That remains the case even if the incumbent doesn’t hold the most seats.

Is that fair?

The idea behind this, Thomas noted, is to ensure that the governor general interferes in politics as little as possible.

The prime minister doesn’t need the governor general’s consent to test whether they can maintain the confidence of the House of Commons — and remember, the government technically remains the government until a new one is sworn in.

Because of that, the scenario proposed by Scheer where the governor general refuses to let an incumbent government test the confidence of the House of Commons would actually require a direct intervention by the governor general.

READ MORE: Trudeau dodges question of Liberal-NDP coalition while Scheer rallies against

“The final question of who is the government of the day comes down to the governor general. So in that context, the governor general tries to interfere as little as possible to have as little impact on who is in power,” said Thomas.

“And so if there is a reasonable chance that an incumbent government that may have won fewer seats, but still has a good chance of winning confidence when the legislature resumes, if that’s the situation, the governor general will just leave things alone. And rather than ask a government to resign, let it be defeated and then ask the party that had the most seats to form government.”

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Doing that effectively means that if Canadians have elected enough individual members of Parliament opposed to the incumbent government, that incumbent will not be able to form government again.

But if they have elected more individual members willing to back it, that government can remain in power until those members no longer support it.

Thomas noted, though, that the current division of parties along the political spectrum can put Conservatives at a disadvantage in minority settings because while Conservatives form one unified party, there are several parties on the left side of the spectrum who can be considered potential allies for the Liberals.

For example, a Liberal minority can generally count on a certain willingness from the NDP and even the Green Party, potentially, to play ball.

“This is a major challenge for the Conservatives,” Thomas noted.

Could Trudeau resign if there’s a minority?

In short: it’s possible, but probably unlikely.

Unless he is defeated outright — with another party winning a majority — historically, many Canadian prime ministers who have been reduced to minority governments chose to stay on and lead their party into the next election.

The exception to that is when a prime minister’s party is reduced to second-party status, and there are several examples over recent decades of prime ministers in that situation resigning.

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Part of this is a tactical decision given the difficulties of trying to run a leadership race in the highly unstable minority government environment, where the government could fall at any moment — just imagine the complications that would ensue if a minority government fell in a surprise defeat while the party leading it was still trying to elect a permanent leader.

That instability really is the defining reality for any kind of minority government: there are no guarantees in anything.

And that includes how long it could be before Canadians have to head back to the polls.