Introduction

Prime Minister Trudeau has advised Her Excellency Julie Payette to dissolve the 42^nd Parliament and issue the writs for the 43^rd general election, which will occur on 21 October 2019. So endeth the longest session in Canadian history. The 1^st session of the 42^nd Parliament lasted from 3 December 2015 to 11 September 2019 – a record 1,378 days – because the Prime Minister opted not to prorogue parliament at all.[1] In so doing, Justin Trudeau has proven the opposite of Stephen Harper. And in so doing, Justin Trudeau has also surpassed his late father and former Prime Minister Pierre Elliot Trudeau on at least one important metric: he had held the previous record for the longest parliamentary session and thus longest time without a prorogation with the 1^st session of the 32^nd Parliament, which lasted 1,325 days from 14 April 1980 to 30 November 1983.[2]

Under the Canada Elections Act, the polling day is scheduled for 21 October 2019. Since the writ must last a minimum of 36 days and now a maximum of 50 days, the 42^nd Parliament had to be dissolved between 1 and 15 September 2019. The Prime Minister opted for a later date and thus shorter campaign, which started on 11 September. And so, too, did the Caretaker Convention.

The Privy Council Office’s Official Documents on the Caretaker Convention

The Caretaker Convention, or Principle of Restraint, exists in the absence of any formalized, legal limitations on the government’s authority and the government’s capacity to carry out its authority in the name of the Queen of Canada. The basic rationale is that the House of Commons cannot fulfill its core function of holding the ministry to account for its expenditures and policies when Parliament is dissolved during the writ, and legally does not exist, and when the outgoing ministry has already lost the confidence of the elected House of Commons. The incumbent ministry therefore limits itself under these circumstances to the routine and the necessary in order to adhere as closely as possible to the precepts of Responsible Government.

However, since there is only ever one premier and ministry in office at one time, and since the government of the day has a duty to carry out the Queen’s business, the incumbent ministry must still handle the day-to-day matters of government – even if it has lost the confidence of the Commons and obtains an early dissolution, or during the writ, or during the two- to three-week transition from one ministry to another after the writ.

The Privy Council Office (PCO) devised some Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff, and Civil Servants During an Election for internal use on the caretaker convention in 2008, which I then obtained through an Access to Information request in early 2011. I am not certain if PCO created a new edition for 2011 or not. PCO published updated and revised edition online in August 2015 the day on which the 41^st Parliament was dissolved. And on 11 September 2019, PCO published another revised and expanded edition online (but, irritatingly, overrode the 2^nd edition in so doing) upon the dissolution of the 42^nd Parliament. The third edition from 2019 has sprinkled new phrases throughout the document. The editions from 2008 and 2015 (of which I saved my own copied-pasted the HTML version into Word four years ago) said:

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).

In determining what activity is necessary for continued good government, the Government must inevitably exercise judgement, weighing the need for action and potential public reaction, given the absence of a confidence chamber and the possibility that a different government could be elected.[3]

The third edition from 2019 altered the phrasing slightly and made the last sentence of the second paragraph less specific – to Sir Humphrey Appleby’s approval, no doubt, since ambiguity benefits the executive in cases like these:

To the extent possible, however, government activity following the dissolution of Parliament – in matters of policy, expenditure and appointments – should be restricted to matters that are:

1. routine, or
2. non-controversial, or
3. urgent and in the public interest, or
4. reversible by a new government without undue cost or disruption, or
5. agreed to by opposition parties (in those cases where consultation is appropriate).
   
   In determining what activity is necessary for continued good government, the Government must inevitably exercise judgement, weighing the need for action and the restraint called for by convention.

Philippe Lagassé, Professor of International Relations at Carleton University, brilliantly summarizes these guidelines in an article from 2015:

The words chosen by PCO are important. A caretaker ministry should restrict itself. The agreement of opposition parties is to be sought where appropriate. These aren’t weasel words. They reflect the actual meaning and operation of the convention. The caretaker convention is ultimately grounded in a principle of restraint, not a prohibition of action. It is a convention that relies on prudential judgement rather than absolute constraints.[4]

Furthermore, the Guidelines from 2008, 2015, and now 2019, flowed from in some respects an even older antecedent. The Privy Council Office’s Manual of Official Procedure of the Government of Canada of 1968 refers to this concept now more commonly known as the caretaker convention as “the principle of restraint,” putting the onus on the government to restrain itself, recognizing that parliament cannot do so, but acknowledges that some former Canadian prime ministers exercised less restraint than others.[5] It says:

1.[…] The extent of these restraints varies according to the situation and to the disposition of the Government to recognize them.

2. The possibility of restraint only arises if the continuation of confidence in the Government is called into question. A defeat in the House preceding dissolution or a defeat at the polls would be the usual causes of restraint.

3. The restraint has been recognized as applying to important policy decisions and appointments of permanence and importance. Urgent and routine matters necessary for the conduct of government are not affected.[6]

This general idea of “The Principle of Restraint” or “The Caretaker Convention” applies to all the jurisdictions in Canada using Responsible Government. Like all conventions in our system of government, this is a practical matter, and we can point to concrete examples at both the federal level and in the provinces which illustrate how the Caretaker Convention works in practice. Below I have outlined three precedents which illustrate how the Caretaker Convention works in three distinct scenarios:

1. After a government has lost the confidence of the House of Commons in a formal vote in the chamber;
2. During an election in which the incumbent government needs to make a decision relating to Canada’s foreign policy and attend an international conference;
3. After a government has lost the confidence of the elected assembly and after the Lieutenant Governor has dismissed the incumbent, but during the transition of power from one ministry to another.

The Clark Precedents, 1979-1980

Some older but pertinent examples of the federal caretaker convention in action stem from the 31^st general election in May 1979 and Joe Clark’s short-lived premiership of 1979-1980 as well as from the handling of the New Fighter Aircraft Project, which the first Trudeau government started in March 1977 and which the second Trudeau government finalised in February 1980. Clark’s first decision has come to be seen as an example of what not to do in a hung parliament, but his second decision has set the precedent for how governments should behave after having suffered defeat on a vote of non-confidence in the House of Commons.

Though Canadians had elected the 31^st Parliament – a hung parliament where no party held a majority on its own – on 22 May 1979 and Governor General Schreyer had appointed Joseph P. Clark as Prime Minister on 4 June 1979, Prime Minister Clark did not advise the Governor General to summon the 1^st session until 12 October 1979, and the new House of Commons thus did not sustain its confidence in the Clark government until later in October 1979.[7] Waiting five months before summoning the 1^st session of a hung parliament, or even a majority parliament, would now be regarded in most quarters as unacceptable (undemocratic) – especially if a Conservative prime minister unpopular with the intelligentsia did so. But more importantly, such a decision would probably simply no longer be possible because the Financial Administration Act now only allows the government to issue Governor General’s Special Warrants for the appropriation of funds if and only if parliament is dissolved and then only for a maximum of 60 days. Quite simply, the Government of Canada could run out of money or require some other urgent appropriation long before five months would elapse.

In May 1979, Canadians returned 282 MPs: 136 Progressive Conservatives, 114 Liberals, 26 New Democrats, and 6 Social Creditists to the House of Commons. That left the Progressive Conservatives only six seats short of a parliamentary majority of 141 MPs plus the Speaker – coincidentally, the exact number of the ideologically compatible Social Creditists elected. But Clark refused to compromise in any way, declining a confidence and supply agreement and rejecting a coalition government.[8] As Clark had pledged during the Leaders’ Debate in May 1979, he and his cabinet “would be governing as though we had a majority.”[9]

This unyielding attitude proved too much for the House of Commons to bear in December 1979 when Finance Minister John Crosbie insisted on tabling a budget that would have imposed a new tax of 18 cents per gallon on gasoline and refused to accept amendments or modifications to government policy that would have allowed the Social Creditists or the New Democrats to support the budget.[10] Crosbie insisted that Canadians must accept what was then known as energy conservation during the Oil Shocks and Stagflation and what would we probably today call a carbon tax or price on carbon as “short-term pain for long-term gain.”[11]

Fabien Roy, Leader of the Social Creditists, had indicated that his party would support the budget and thereby sustain the government on votes of confidence if Clark and Crosbie dropped the 18-cent-per-gallon gasoline tax. Ed Broadbent, leader of the New Democratic Party, might have supported the budget if the Clark government had extended assistance for low-income households in order to off-set the gas tax. Clark refused to bend, and he broke. And on 13 December 1979, the Clark government lost the vote of confidence 139 to 133, by 6 votes – the number of Social Credit MPs, who had abstained on that crucial vote.[12] In addition, 3 Progressive Conservative MPs were unavailable, with 2 overseas (including External Affairs Minister Flora MacDonald) and 1 in hospital,[13] and Clark refused to postpone the budget by a few days in order to allow them to partake in the crucial confidence votes. Joe Clark then arose in the House of Commons and said:

“The government has lost a vote on a matter which we have no alternative but to regard as a question of confidence, and I simply want to advise the House that I will be seeing His Excellency, the Governor General, tomorrow morning.”[14]

Prime Minister Clark then addressed the House briefly the following morning and informed his colleagues that he had spoken with the Governor General, who had agreed to dissolve the 31st Parliament and hold a general election on 12 February 1980.[15] Clark did not mention, however, that His Excellency Edward Schreyer had made him wait two hours before agreeing to promulgate an early dissolution of the young parliament.[16]

Clark had become a caretaker from 13 December 1979 to 12 February 1980, but the Clark government remained active on the foreign policy front. During this time, External Affairs Minister Flora MacDonald oversaw the Canadian Caper, dramatised in the 2012 film Argo, and the use of Canadian passports to help Americans employed at the United States embassy in Iran flee the country and escape imprisonment by the new revolutionary regime. The New Fighter Aircraft Project remained unresolved after the Clark government had undertaken to review the competition upon entering office in June 1979. The previous Trudeau government would have awarded the contract to McDonnell-Douglas and procured the F/A-18 Hornet fighter aircraft, and the Clark government had come to the same conclusion by December 1979 shortly before losing the confidence of the House of Commons. But on 14 December 1979, one day after the vote and at the start of the federal election campaign, Prime Minister Clark opted not to commit the Government of Canada to spending $2 billions on a decision of this magnitude, declaring: “It is my judgement that a government which has lost the confidence of Parliament does not have the authority to make that decision.”[17]

Even though the first Trudeau government would probably have purchased the same aircraft if the Liberals had won the election in May 1979, and even though the second Trudeau government ended up pursuing the same contract, Clark thus decided to put on hold instead of closing a significant military procurement contract between the Government of Canada and McDonnell-Douglas for the purchase of a fleet of F/A-18 fighter aircraft, given that this decision would, in effect, have become irreversible and would have committed the next government to a hefty, multi-decadal expense. If the Progressive Conservatives had won re-election, Clark would simply have closed the contract then. But the Liberals won a slim parliamentary majority on 18 February 1980 (147 Liberals vs. 103 Progressive Conservatives and 32 New Democrats) instead, and Pierre Trudeau boasted “Welcome to the Nineteen-Eighties” that night.[18]

The second Trudeau government then immediately set about procuring the F/A-18s later that month, in February 1980, and closing the loop on the New Fighter Aircraft Project that the first Trudeau government had started in March 1977. The Canadian Armed Forces took delivery of the F-18s between 1982 and 1988. Funnily enough, the issue of replacing the F-18 Hornets and procuring a new fighter aircraft for the Royal Canadian Air Force has now spanned at least three electoral cycles (2011, 2015, and 2019) and might span a fourth before being resolved.

The Harper Precedent, 2011

A recent example at the federal level comes from the 41^st general election, which took place between 26 March and 2 May 2011. On Tuesday, 12 April 2011, the Globe and Mail reported that Foreign Minister Cannon had consulted with the Opposition on Canada’s involvement in a NATO operation in Libya before deciding to travel abroad. These international meetings pertaining to Canada’s participation in the NATO mission in Libya, Operation Unified Protector, required the attendance of a minister of the Crown and were, in the words of the Guidelines, both “urgent and in the public interest” and were “agreed to by the Opposition.”[19] This matter ultimately pertained to Canada as a state and Canada’s international legal personality and would have to have been considered by any incumbent government of any party affiliation. The Conservatives went on to win a parliamentary majority in May 2011, and the Canadian Armed Forces participated in the NATO operation in Libya through the summer and fall of 2011.

The Clark Precedent in British Columbia, 2017

On 29 June 2017, Premier Christie Clark’s Liberals lost the crucial confidence vote on the Address-in-Reply to the Speech from the Throne in British Columbia’s Legislative Assembly.[20] This vote came after British Columbians had elected a hung legislature on 9 May and Clark had decided to stay on and test the confidence of the new assembly, even though the momentum had gone against her. After losing the vote, Clark promptly shuffled off to Government House and asked Lieutenant Governor Guichon to dissolve the new legislature. Her Honour rejected Premier Clark’s constitutional advice, thereby forcing Clark to announce her resignation as Premier effective upon the appointment of her successor.[21] That same evening of 29 June, Lieutenant Governor Guichon then made John Horgan, the Leader of the Opposition and the New Democratic Party, Premier-designate, though she did not appoint him as Premier and swear in the new cabinet until 18 July 2017.[22] Outgoing Premier Clark therefore served as a caretaker during the period from 29 June to 18 July 2017.

But on 9 July, Clark made a necessary announcement – and surely also “urgent and in the public interest” – that the Government of British Columbia would allocate $100 millions of dollars toward rebuilding infrastructure in the aftermath of the devastating forest fires which torched a large portion of the province that summer.[23] The first duty of the government is to ensure the defence of the realm and uphold law and order within its borders. Sometimes threats come not from other states but from nature herself. The government of the day – even one poised to leave office in mere days – must necessarily act in the face of natural disasters like forest fires and floods which all too often occur in Canada to save lives, property, and public infrastructure. These actions range from simply issuing factual advisories for public health and safety, submitting requests for assistance to the Government of Canada under the National Defence Act so that the Canadian Armed Forces can deploy rescue teams and engineers to combat the fire or floodwaters, or to issue Governor’s Special Warrants to pay for rescuing residents or saving or rebuilding infrastructure.

Evolution of the Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff, and Civil Servants During An Election

The Privy Council Office has steadily expanded the Guidelines, especially between the second edition in 2015 and the third edition in 2019. The 2015 edition comes in at 3,019 words, while the 2019 edition clocks in at a hefty 3,427 words. As PCO adds more material and amends these Guidelines over time, it is not inconceivable that it could broaden the scope of the Caretaker Convention itself to begin before the writ, though this would probably occur only with respect to the conduct of civil servants and not to the conduct of ministers, ministers of state, and exempt staff.

The editions from 2008 and 2015 perhaps reflected Harper’s direct centralising style, stating that several matters “required approval by PCO.” The 2019 edition has replaced this direct instruction with softer wording, stating merely that deputy heads “should consult PCO” – though, of course, any good civil servant would know that “consultation with PCO” in fact means “with the approval of PCO.” Again, Sir Humphrey would approve of these changes.

The Privy Council Office publicly released a version of these Guidelines for the first time on its website on 2 August 2015 upon the dissolution of the 41^st Parliament and the start of the 42^nd general election. This edition largely preserved the introductory wording of the 2008 edition, though a new paragraph at the end of Section 2, “Continuing Government Business” generated some controversy at the time, stoked largely by Michael Geist, a Professor of Law at the University of Ottawa.[24]

For greater clarity, there may be compelling reasons for continued participation by Ministers and/or officials in specific activities such as treaty negotiations. For example, when negotiations are at a critical juncture with timelines beyond Canada’s control, the failure to participate in ongoing negotiations during the caretaker period could negatively impact Canada’s interests. Under such conditions, a compelling case may be made for ongoing efforts to protect Canada’s interests. Irreversible steps such as ratification should be avoided during this caretaker period.

Geist contended that the Harper government “gave itself power to continue negotiating” the Trans-Pacific Partnership. This is false. The Guidelines do not confer any new authority upon the Government of Canada; they merely outline how the government of the day should restraint until under some circumstances. The lawful authority to represent Canada abroad and Canada as a sovereign state always exists. Geist latched onto this new paragraph as proof of some nefarious intent, but in reality, the Harper government merely sought to clarify its position – quite accurately under the Constitution of Canada – ironically, in order to prevent these kinds of accusations. The Government of Canada should not simply withdraw from multi-year and ongoing international negotiations on potential trade agreements during an election, and even the new paragraph concludes by saying that “irreversible steps such as ratification should be avoided during this caretaker period.” That is a perfectly fair and reasonable argument: continue negotiating the treaty, but do not commit to ratifying the treaty. Withdrawing from negotiations and relegating Canada to observer status as Geist recommended would have gone against this country’s national interest, irrespective of which party held power.

The same principle holds true for any ongoing talks. It’s not as if Winston Churchill told the Allies in 1945 that the United Kingdom would withdraw from the upcoming Potsdam Conference because of its general election that summer. And it’s not as if Clement Attlee rescinded the United Kingdom’s participation in the conference after he led Labour to a parliamentary majority in that election. In any event, the 2019 edition actually kept this paragraph! So the Trudeau government clearly agrees with the Harper government that the Government of Canada should always remain an active participant in ongoing international treaty negotiations. This undoubtedly conforms to Canada’s national interest as a sovereign state. Strangely, however, the Trudeau government has not faced the same criticism from the Establishment in academia and the media for having taken exactly the same viewpoint as the Harper government four years earlier. The 2019 edition also adds in a new paragraph under “Cabinet Operations” on “Regulations” and says that “departments should not launch new regulatory initiatives, or proactively engage stakeholders on regulatory development” during the writ.[25]

Section 4, “Communications and Advertising,” of the 2019 Guidelines now refer to and incorporate the Treasury Board’s Directive on the Management of Communications, which says that the civil service should suspend all but essential advertising from 30 June onward in the year of a scheduled election.

The Treasury Board has issued a Directive on the Management of Communications which requires that Government of Canada advertising activities be suspended on June 30 in a year in which there is a fixed general federal election date. Exceptions may be granted for public notices for legal purposes, or for reasons of public health and safety, employment or staffing notices, or urgent business as determined by department deputy heads.

In addition, as a general rule, government or departmental announcements are curtailed during an election period. Under certain circumstances, however, exceptions could be made at the discretion of a department deputy head. This would include:

• in the case of a significant international or domestic event where the failure to have the Prime Minister or minister comment would do damage to Canadian interests or prestige;
• announcements relating to the health and safety of Canadians;
• public notices for legal purposes.If it is determined that an announcement must proceed it should be made in the name of the department and, as always, communications and public announcements that are prepared using government resources must not contain partisan information or identifiers.

Any department seeking to make an announcement, as approved by the deputy head, should consult with the Privy Council Office.

Finally, the 2019 edition of the Guidelines has also added a new section at the end. Section 9 incorporates the Trudeau government’s Critical Election Incident Public Protocol, which aims to mitigate any threats by foreign states and entities to Canada’s capacity to hold “a free and fair election.”[26] This addition reflects a series of developments since 2015, especially with respect to Russian and Chinese efforts to interfere in the free and fair elections in the Free World, as well as the Trudeau government’s signature legislation to broaden the authority of the Communications Security Establishment (CSE) to protect Canadian telecommunications infrastructure from cyber-attacks. Parliament passed this omnibus legislation, An Act Respecting National Security Matters, in June 2019, and the Trudeau government promulgated it into force by Order-in-Council in July 2019.[27]

The Cabinet Directive on the Critical Election Incident Public Protocol further elaborates on the Caretaker Convention:

The Cabinet Directive on the Critical Election Incident Public Protocol sets out the ministers’ expectations with respect to the general directions and the principles to guide the process for informing the public during the writ period of an incident that threatens Canada’s ability to have a free and fair election.

The Protocol is an application reflective of the caretaker convention. The caretaker convention puts into practice the principle that the government is expected to exercise restraint in its activities and “restrict itself” in matters of policy, spending and appointments during the election period, except where action is “urgent” and “in the national interest”.

During the caretaker period, announcements that must proceed are to be made in the name of the department to ensure a distinction between official government business and partisan activity.[28]

The 2019 Guidelines link to this Cabinet Directive from 9 July 2019, stating:

the Government of Canada has established a Critical Election Incident Public Protocol in order to ensure coherence and consistency in Canada’s approach to publicly informing Canadians during the writ period about incidents that threaten Canada’s ability to have a free and fair election. The Protocol lays out a process, administered by a panel of non-partisan senior public servants from the Privy Council Office and national security portfolios, through which Canadians would be notified of an incident or an accumulation of separate incidents, which threatens the integrity of the federal election process. The Protocol has been drafted to be consistent with caretaker convention principles and would be engaged only in the most urgent cases where there is a clear impact on the national interest.[29]

Overall, the trend from 2015 and 2019 shows that the Guidelines have become more specific as they increase in length. In addition, the 2019 edition of the Guidelines shows a more deliberate “whole-of-government” approach to the Caretaker Convention by integrating other policy documents like Treasury Board’s Directive on the Management of Communications and the Privy Council Office’s Cabinet Directive on the Critical Election Incident Public Protocol, which, in turn, reflects PCO’s coordinating function in the security and intelligence community. This whole-of-government approach also makes the Guidelines more specific, however, which could open up the government of the day to more criticism in some cases and to calls to limit or clarify its authority further in others.

Conclusion: The Caretaker Convention Has Already Expanded and Will Continue to Expand

The scope of the Caretaker Convention has already expanded considerably since the advent of Responsible Government in British North America in the 19^th century. Until some point in the 20^th century, the Caretaker Convention only applied post-writ when the results of an election made clear that the incumbent government’s party had lost its parliamentary majority and that it would soon have to make way for the Governor to appoint a new ministry.[30] Prior to 1896, even outgoing Canadian ministries would advise the Governor General to make significant appointments, including to the Supreme Court of Canada, mere days before the Governor General swore in a new prime minister and cabinet.[31] By the mid- to late 20^th century, precedent has established that the Caretaker Convention applied if the government lost a vote of confidence in the House of Commons and also during the writ – but not all prime ministers observed this convention. Prime Minister Joe Clark did in 1979 when he declined to sign a contract to procure the F-18 Hornet for the Royal Canadian Air Force.[32] But Prime Minister Kim Campbell acted with reckless abandon rather than sensible restraint when she decided to finalise a contract to privatise Terminals 1 and 2 of Pearson International Airport on 7 October 1993 – during the general election.[33] The Caretaker Convention started in the post-writ in the late 19^th and early 20^th centuries, broadened to during the writ itself by the mid- to late 20^th century, and it has already started to encroach on the pre-writ in the early 21^st century.

All versions of the Privy Council Office’s Guidelines over the last decade emphasise that the Principle of Restraint does not apply pre-writ but that the government “should” observe it only during the writ, and after the election before the appointment of a new ministry, or if it has lost a vote of confidence in the House of Commons. Under both Liberal and Conservative governments, the Privy Council Office has rejected the notion that the Caretaker Convention should now apply before the writ as well, for at least three months prior to the dissolution of parliament. But the idea has started to gain traction in light of Parliament’s recent amendments to the Canada Elections Act restricting partisan advertising in the three months before a scheduled general election, and even from some academic circles. And more importantly in this case, the Privy Council Office itself has lent credence to this idea by incorporating the Treasury Board’s Directive on the Management of Communications into the 2019 Guidelines. Functionally, the Government of Canada has now adopted the same policy as New Zealand. The New Zealand Cabinet Manual has partially extended the Caretaker Convention before the writ, saying that governments should not engage in non-routine advertising up to 90 days before the writ, but it remains silent on appointments.[34]

In 2018, Parliament amended the Canada Elections Act, to include restrictions on political parties and candidates from spending in a “pre-election period” which starts on 30 June – though if and only if the federal general election is scheduled to take place on the third Monday in October that same year under section 56.1 of the Canada Elections Act. Logically, these new provisions pertaining to the “pre-election period” would not and could not, by definition, apply during snap elections because the pre-writ, by definition, can only become a well-defined and meaningful period when the approximate date of dissolution and the date of the general election are known well in advance.

pre-election periodmeans the period beginning on the June 30 before the day set in accordance with subsection 56.1(2) for the holding of a general election and ending on the day before the earlier of

(a) the first day of an election period for a general election, and

(b) the 37th day before the Monday referred to in subsection 56.1(2) or, if the Governor in Council makes an order under subsection 56.2(3), the 37th day before the alternate day referred to in that order.[35]

But the Canada Elections Act does not contain these same restrictions on government advertising during the pre-election period; however, the Trudeau government has already moved toward restricting government advertising in the same “pre-election period” through a non-statutory Directive on the Management of Communications, issued by the Treasury Board Secretariat. It states:

Federal elections

Heads of communications are responsible for the following:

6.44: Suspending advertising and public opinion research activities the day that the Governor in Council issues a writ for a general federal election and resuming only when the newly elected government is sworn into office, unless approved by the deputy head; and

6.45: Suspending advertising activities on June 30 in a year in which there is a fixed general federal election date.[36]

Section 4, “Communications and Advertising,” of the 2019 Guidelines now refer to and incorporate the Treasury Board’s Directive such that the two executive policies have become inextricably linked.

The Guidelines from 2015 say that “during caretaker periods, decision-making with respect to routine contracts and grants and contributions may be delegated to departmental officials, who are responsible for applying the principle of restraint.”[37] The 2019 Guidelines adopt a slightly different wording but make the same substantial point: “during caretaker periods, consideration should be given to delegating decision-making with respect to routine contracts and grants and contributions to departmental officials.” Documents obtained through Access to Information Request A-2019-00562 indicate that the Minister of National Defence has opted to delegate such instructions within the Department of National Defence — but not merely during the writ but for the “pre-election period” from 30 June onward as well. This aspect of the Guidelines has already crept backward.

The Assistant Deputy Minister of Materiel of the Department of National Defence issued guidance on 25 June 2019 to all the other assistant deputy heads within the Department of National Defence and the Canadian Armed Forces. The “National Defence Procurement and Contracting Guidance – Federal Election Period” takes effect as of 30 June, the same day that the Canada Elections Act defines as the start of the “pre-election period” for the purposes of partisan advertising and which the Treasury Board’s Directive cites for restrictions on advertising. The intra-departmental guidance seems to flow directly from section 6.45 of the Treasury Board’s Directive, informing civil servants that: “This guidance comes into effect 1 July 2019, and will remain in effect until 7 calendar days following the federal election date.”[38] In other words, it would apply from 1 July to 28 October 2019. The guidance applies to “all DND/CAF procurement-related activities that fall within departmental contracting authority and valued at greater than $25K,” which will allow DND-CAF “to maintain transparency, accountability and political neutrality in all its procurement-related activities and processes during a federal election.”[39] Any such contract would need the approval of a director (presumably EX-01 in the civil service’s classification) and would have to follow a list of criteria based on the Caretaker Convention. Furthermore, each branch within DND and L1 command of the CAF “Must ensure that the Election Period Procurement and Contracting Register is completed and maintained.” The Assistant Deputy Minister’s guidance further specifies the considerations that civil servants should take into account:

7. The following should be considered in the development of the recommendation of the procurement activity:

Nature of the activity (level of visibility or association of the activity with the federal government);

The outcomes of the procurement activity (the impact of the activity on the federal government and the perceived partisanship of the participants of the procurement activity);

The perceived partisanship of the relationship or potential relationship between the participants of the procurement activity and other stakeholders; and

The need to proceed with the activity during the election period vice waiting for the new Government to be formed.[40]

The Trudeau government did not opt for restraint in appointments prior to the dissolution of the 42^nd Parliament – and nor should it have. The Privy Council Office’s database shows a flurry of activity in ambassadorial and judicial appointments and appointments to federal boards, entities, and Crown corporations with 343 Orders-in-Council promulgated from 1 July to 6 September. These include appointments to the St. John’s Port Authority for terms of three years.[41] Others made good the appointments of various persons for terms of three years to the Immigration and Refugee Board.[42] Thirty diplomatic appointments occurred on 9 July, all with terms for five years,[43] and 17 July proved an active day with 12 appointments to the Independent Judicial Advisory Committees of Manitoba and Quebec.[44] Some Orders-in-Council issued under prerogative authority pertained to lands claims agreements with indigenous peoples as well as international treaties. The Trudeau government even just created a new National Park Reserve by Order-in-Council under the Northwest Territories Act on 4 September.[45] In addition, the Trudeau government engaged in a series of campaign-style funding announcements throughout the summer of 2019, including projects in the ridings of which Ministers represent, as well as $1.5 billions in contracts across three provinces for building ships for the Royal Canadian Navy.[46]

The Trudeau government’s 343 Orders-in-Council issued between 30 June and 6 September 2019 (the most recent date at the time of writing for which figures are available), over the course of 69 days, amounts to an average of 5 per day. In contrast, the Harper government promulgated 139 Orders-in-Council in the equivalent but shorter “pre-writ period” of 30 June to 1 August 2015, given that Prime Minister Harper opted for an ultra-long writ from 2 August to the day of the election on 19 October 2015.[47] This comes to an average of 4 Orders-in-Council per day over the course of 33 days. In other words, the Harper and Trudeau governments are roughly in line with one another on pre-writ Orders-in-Council and appointments.

Overall, the Government of Canada has taken an ambivalent approach on this whole question, both encouraging the extension of the Caretaker Convention pre-writ in some ways (mostly in procurement and communications) and utterly rejecting it in others, especially with respect to Governor-in-Council appointments. But on balance, despite the Privy Council Office’s best efforts, the Principle of Restraint has become subject to what Philippe Lagassé calls “convention creep”: a form of path dependency, but also involving the deliberate gradual extension of the application of the Restraints of Government Activity from during the election campaign and after the election until the first meeting of the new parliament if one party does not win a clear majority to now at least 90 days before the writ as well.[48] That would restrict all government activity for at least four months (pre-writ plus writ), and possibly up to five or six months after the election of a minority parliament and delayed formation of a new government.

Over the long term, the Privy Council Office might respond to increasing calls to broaden the scope of the Caretaker Convention to before the writ by bifurcating the Caretaker Convention and preserving the responsibilities of Ministers of the Crown (with the support of their exempt staff) over matters like appointments and other matters of state in the period before the writ, while at the same time, limiting the civil service and restricting matters like advertising before the writ. However, this distinction between Ministers and civil servants, however, might also prove difficult to defend. The Caretaker Convention has already broadened in scope from post-writ to during the writ, and other legislative and policy changes have already begun pushing it toward the pre-writ as well.

Similar Posts:

• The Timing of Scheduled Federal Elections
• Manitoba’s Early Election Expands the Caretaker Convention
• How Dwight Ball Distorted the Caretaker Convention in Newfoundland & Labrador

Notes

[1] Parliament of Canada, ParlInfo, “42^nd Parliament,” accessed 11 September 2019.

[2] Parliament of Canada, ParlInfo, “32^nd Parliament,” accessed 11 September 2019.

[3] Canada. Privy Council Office, 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, 2008): 1; Canada. Privy Council Office, 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, 2015): no page number online.

[4] Philippe Lagassé, “Clarifying the Caretaker Convention,” Policy Options, 9 October 2015. <https://policyoptions.irpp.org/2015/10/09/clarifying-the-caretaker-convention/>

[5] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar (Ottawa, Government of Canada, 1968): 90.

[6] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar (Ottawa, Government of Canada, 1968): 89.

[7] Parliament of Canada, ParlInfo, “31st Parliament,” accessed 11 September 2019; Canada, Privy Council Office, “Twenty-First Ministry” in Guide to Ministries Since Confederation, 9 January 2018.

[8] CBC Archives, “Prime Minister Clark,” CBC Television News Special with Anna Medina, 23 May 1979.

[9] CBC Archives, “Encounter ’79,” CBC News Special, 13 May 1979.

Clark said at 32 minutes, 44 seconds into the CBC’s official archival video of the debate: “If there is a minority government — and I very much hope that there won’t be — I very much hope that we will be given the opportunity to form a majority government. If there is a minority, I intend to govern entirely on the program that the Progressive Conservative Party has put forward, not on somebody else’s program. We will be governing as though we have a majority, although it would be far easier, naturally, far more effective, for the system, I believe, if we had the certainty of there being four years in office for a government in which to plan.”

[10] Canada. House of Commons, Debates, 31st Parliament, 1st Session (13 December 1979) at 2278-2280 (John Crosbie).

[11] Canada. House of Commons, Debates, 31st Parliament, 1st Session (13 December 1979) at 2280 (John Crosbie).

[12] CBC Archives, “1979: Joe Clark’s Government Falls,” The National, 13 December 1979; Canada. House of Commons, Debates, 31st Parliament, 1st Session (13 December 1979) at 2362 (Joseph Clark).

[13] CBC Archives, “1979: Joe Clark’s Government Falls,” The National, 13 December 1979; Canada. House of Commons, Debates, 31st Parliament, 1st Session (13 December 1979) at 2362 (Joseph Clark).

[14] Canada. House of Commons, Debates, 31st Parliament, 1st Session (13 December 1979) at 2362 (Joseph Clark).

[15] Canada. House of Commons, Debates, 31st Parliament, 1st Session (14 December 1979) at 2363 (Joseph Clark).

[16] Anne Twomey, The Veiled Spectre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018), 599.

[17] John Wilson, “Constitutional Conventions and Election Campaigns: The Status of the Caretaker Convention in Canada,” Canadian Parliamentary Review (Winter 1995-1996): 17.

[18] Parliament of Canada, ParlInfo, “32^nd Parliament,” accessed 11 September 2019; CBC Archives, “The Electoral Ups and Downs of Pierre Trudeau,” accessed 11 September 2019.

[19] James W.J. Bowden and Nicholas A. MacDonald, “The Caretaker Convention: What Happens to the Federal Government in An Election,” The Hill Times, 4 April 2011, 27; Campbell Clark, “Cannon Leaves Hustings to Attend Second Round of Libya Crisis Talks” Globe and Mail, 11 April 2011.

< https://www.theglobeandmail.com/news/politics/cannon-leaves-hustings-to-attend-second-round-of-libya-crisis-talks/article576016/&gt;

[20] British Columbia, Legislative Assembly, Orders of the Day, No. 7, 41st Legislature, 1st Session (29 June 2017) (John Horgan).

[21] British Columbia, Office of the Lieutenant Governor, “A Statement from the Lieutenant Governor,” 29 June 2017.

[22] Rob Shaw, “B.C.’s NDP Government Will Be Officially Sworn In [on] July 18,” The Province, 5 July 2018.

[23] British Columbia, Office of the Premier, “Premier Christy Clark’s Statement on British Columbia Wildfires,” 9 July 2017.

[24] Michael Geist, “Canadian Government Amends ‘Caretaker Rules’ To Give Itself Power to Continue Negotiating TPP,” Michael Geist’s Blog, 4 August 2015.

[25] Canada. Privy Council Office, 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, 11 September 2019):

[26] Canada. Privy Council Office, 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, 11 September 2019):

[27] Canada, Privy Council Office, Orders-in-Council P.C. 2019-1088 to 2019-1092, 12 July 2019.

[28] Canada, Privy Council Office, Cabinet Directive on the Critical Election Incident Public Protocol, 9 July 2019.

[29] Canada. Privy Council Office, 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, 11 September 2019):

[30] Andrew Heard, “Constitutional Conventions and Election Campaigns,” Canadian Parliamentary Review (Autumn 1995): 9.

[31] James G. Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: The Osgoode Society, 1985): 26-27.

[32] I don’t care that the Royal Canadian Air Force was officially known after Unification in 1968 until as late as 2011 as “Air Command.” Damn Paul Hellyer and his foolish policy. I refuse to use his designations and will retroactively apply the names to the three environments of the Canadian Armed Forces which should always have existed.

[33] John Wilson, “The Status of the Caretaker Convention in Canada,” Canadian Parliamentary Review (Winter 1995-1996): 12-19; Andrew Heard, “Constitutional Conventions and Election Campaigns,” Canadian Parliamentary Review (Autumn 1995): 8-11.

[34] New Zealand, Cabinet Office, Department of the Prime Minister and Cabinet, Cabinet Manual (Wellington: Her Majesty the Queen in Right of New Zealand, 2008), 76-77.

[35] Canada, House of Commons. Bill C-76, An Act to Amend the Canada Elections Act and Other Acts and to Make Certain Consequential Amendments, 42^nd Parliament, 1^st Session, 64-65-66-67 Elizabeth II, 2015-2016-2017-2018, 30 April 2018, page 5.

[36] Canada, Government of Canada, Treasury Board Secretariat, Directive on the Management of Communications, 25 October 2018.

[37] Canada. Privy Council Office, 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, 2 August 2015): Canada. Privy Council Office, 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, 11 September 2019):

[38] Canada, Department of National Defence, “National Defence Procurement and Contracting Guidance – Federal Election Period”, Annex A, 25 June 2019.

[39] Ibid.

[40] Ibid.

[41] Canada, Privy Council Office, Orders-in-Council P.C. 2019-0975 and 2019-0976, 1 July 2019.

[42] Canada, Privy Council Office, Orders-in-Council P.C. 2019-0988, 2019-0989, 2019-0990, 1 July 2019.

[43] Canada, Privy Council Office, Orders-in-Council P.C. 2019-1058 through to 2019- 1087 (inclusive), 9 July 2019.

[44] Canada, Privy Council Office, Orders-in-Council P.C. 2019-1096 through to 2019-1107 (inclusive), 17 July 2019.

[45] Canada, Privy Council Office, Order-in-Council P.C. 2019-1314, 4 September 2019.

[46] David Akin, “ANALYSIS: In this pre-writ period, Liberal ministers find a fondness for visits to battleground ridings,” Global News, 9 July 2019; CBC News, “$1.5B in frigate repair contracts split among yards in three provinces,” 16 July 2019.

[47] Parliament of Canada, ParlInfo, “41^st Parliament,” accessed 13 September 2019.

[48] Canada. Privy Council Office, 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, 2008): 1; Canada. Privy Council Office, 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, 2015): no page number online.