If the prime minister were to die, who would take over? It's time Canada's succession laws were updated.

Imagine the following scenario. As Parliament prepares to reconvene in September following its summer break, the prime minister is suddenly stricken by a grave ailment that results in his immediate death. The nation mourns, the prime minister’s family grieves, and a political party seeks solace and direction.

The House of Commons, however, has little time to lament the passing of the prime minister, for it must begin the new parliamentary session.

But who will lead the government?

In the early days of Confederation, the Governor General could appoint anyone at his own discretion to fill a vacancy in the prime ministership. Indeed, the Governor General did just that on several occasions, designating as the new prime minister the person he thought would best anchor the nation during its period of transition.

Today, our constitutional conventions provide that the choice remains squarely with the Governor General.

But there are at least two factors – one prudential, the other political – that should inform the Governor General’s choice. First, the Governor General should take care to choose a successor who evokes leadership and confidence rather than partisanship and expediency. At a time when the nation is reeling from a devastating blow to its spirit, what Canadians need most is the assurance that steady hands are steering the ship of state.

Second, not only must the Governor General select a successor whom Canadians regard as competent, but her designee should command the confidence of the governing political party. Imagine the uproar were the Governor General to select someone who met with stinging disapproval from the party in power. The implication, therefore, is clear: to ensure that the governing party sees the chosen successor as politically palatable, the Governor General should select someone from within the governing caucus.

In this sense, the constitutional conventions that govern prime ministerial succession are more a matter of constitutional politics than constitutional law. And rightly so, because no designated successor can govern successfully without the support of the relevant political actors. For no court of law can clothe the prime ministerial successor with any measure of legitimacy sufficient to withstand resistance from her peers in the House of Commons.

So whom would the Governor General choose?

In years past, there has almost always been no doubt about who could command the confidence of the House of Commons in the absence of the prime minister. Significantly, that person has not always been the deputy prime minister, who holds no official status in the line of succession. (The office has, in fact, remained vacant under the current prime minister.)

Usually, we have regarded a rival or close ally of the prime minister as the undisputed alternative in the event of a tragedy befalling the leader. Under the ten-year tenure of Jean Chrétien, Paul Martin would have been the obvious choice. Under Kim Campbell, it would have been Jean Charest. And under Brian Mulroney, it would have been difficult to choose anyone except Don Mazankowski.

But there is no Paul Martin in today’s Conservative Party – no obvious rival with the support of a silent majority of the caucus. There is no Jean Charest – no former leadership candidate whose able and compelling performance has endeared him to the party. And there is no Don Mazankowski – no public servant whose record of leadership and service make him a leader in whom all political parties in the House of Commons would enthusiastically and unquestionably place their trust in a time of crisis.

Which is precisely why prime ministerial succession poses a looming constitutional crisis.

Faced with the task of selecting a successor to the current prime minister, whom would the Governor General choose? One could construct a compelling case for several candidates: Justice Minister Rob Nicholson, the most senior Cabinet minister in order of precedence, Environment Minister Jim Prentice, who is widely seen as leader-in-waiting, or Defense Minister Peter MacKay, whose statesmanship in engineering the merger of the Progressive-Conservative Party and the Canadian Alliance propelled the new Conservative Party to victory. Finance Minister Jim Flaherty and Foreign Affairs Minister Lawrence Cannon are also possibilities. Perhaps even Senator Marjory LeBreton, leader of the government in the upper chamber.

But none of these choices stand apart from the rest.

Perhaps the wisest solution would be to require the Governor General to appoint whomever the governing caucus selects by a majority vote. This would allow the Governor General to sidestep the risk of designating someone who would fail to muster the support of the governing party. It would also insulate the Governor General from charges of interfering with the modern political process, which has evolved a great deal since the early days of Confederation when it may have been appropriate for the Governor General to insert herself into the internal affairs of a political party.

Of course, this suggestion presupposes that the governing party will reach a definitive and timely resolution as to who should take over. The party in power may well act swiftly to rally behind one person. But we cannot be certain that the public interest will prevail over private designs on power, particularly at a time of crisis when the struggle for certainty may blur the lines between national and personal interests.

And so we are left with a very troubling flaw in the institutional design of our succession laws. A fix is definitely in order.

Here is what I propose: in the event of the death or incapacity of the prime minister, the Governor General should designate the Speaker of the House as the immediate interim successor to the prime minister, pending the completion of a new leadership convention.

The Speaker is an officer of Parliament, elected to his post by members of Parliament, and imbued with both the trust and confidence of the House. And insofar as convention stipulates that the Speaker must discharge the duties of his office in a non-partisan fashion, he transcends the narrow politics that typically divides the chamber. That is precisely the timbre of leadership that the Canadian people will need in a time of great calamity.

What makes this fix doable is that we need not amend the Constitution to do it. Parliament may simply pass a law requiring the leaders of all political parties in the House of Commons to issue a joint recommendation to the Governor General that she designate the Speaker as prime minister in the event that circumstances ever require her to name a successor to the position. The law should also add that the Speaker – by this time the former Speaker – must caucus with the governing party, and that he must resign the prime ministership after the governing party has chosen its new leader.

As a matter of Canadian constitutional law and royal prerogative, the Governor General would not be bound to follow this new law. But it is hard to imagine that the Governor General would ever defy the will of a unified Parliament on the question of succession.

We can of course quibble about the details and contours of this parliamentary law. Indeed, there are many intricate questions of timing and protocol to consider in the effort to bring greater clarity to the laws of succession.

But my larger point remains: unless we do something now, we may one day find ourselves in the unenviable position of wishing we had acted sooner to resolve this constitutional quandary dispassionately and free from the compulsion and constraint of crisis.