Joe Jordan’s Column
The polls indicate that Canadians will elect a minority parliament next week, and this has naturally spawned much speculation on the roles of the Governor General and political parties in the formation of governments and what would happen to incumbent Prime Minister Justin Trudeau. One of the more outlandish pieces appeared earlier this month in The Hill Times by former Liberal MP Joe Jordan. It involves not only the prospect of a minority parliament but also an erroneous invocation of the Governor General’s Special Warrants.
Jordan outlines three scenarios for what the Prime Minister could do if his Liberals only win a plurality of seats in a minority parliament:
Prime Minister Justin Trudeau would have three choices. He could, and probably would, try to make a few deals with the opposition parties so he could recall Parliament and demonstrate that he still has the confidence of the House; he can resign and the governor general could, and probably would, ask Conservative Party Leader Andrew Scheer to form a government and try to establish the confidence of the House or, and, this is my personal favourite, he could delay the recall of Parliament, use spending warrants to finance ongoing government operations and avoid a confidence vote by dissolving Parliament an hour after he legally has to recall it by next June. […]
It is the third scenario where the fun could really start. It is also the scenario where the governor general will need to be ready to get off the couch. While they should not get involved in who governs, they do need to make sure that someone does. If the Liberals, or Conservatives, for that matter, try to cling to power by avoiding the House, the governor general would be required, after a reasonable amount of time has elapsed, to suggest the government recall the House to test confidence. Powers are limited here, but the Parliament of Canada Act would require recall of the House within 12 months of the last sitting day of the previous Parliament. At that time, they would invariably lose any confidence motion and the governor general may have to decide on whether to allow a pre-emptive prorogation to avoid that. My sense is that the request would be denied and option two would kick in, if not a complete dissolution and an election.
The first two scenarios sound reasonable and plausible. But Jordan might feel disappointed, or perhaps relieved, to learn that the third option – his personal favourite – simply cannot happen. In fairness, Jordan did preface his entire argument with this proviso:
I need to preface this pseudo-intellectual effort by pointing out that I am neither a constitutional lawyer, nor a constitutional scholar. However, I am a former teacher and a former federal politician, so I feel I am perfectly positioned to speak confidently, or with confidence, about this stuff without having to be constrained by facts or logic.
The hard limit to the duration of an intersession of parliament flows primarily from section 5 of the Constitution Act, 1982, which states that parliament must meet at least once every 12 months. Before 1982, the British North America Act, 1867 contained the same requirement. Anything in the Parliament of Canada Act would follow secondarily the Constitution of Canada. The practical constraints of the budgetary cycle and government legislation flowing from the Speech from the Throne render this maximum intersession of 364 days a logistical impossibility. Jordan believes that the Ministry could circumvent this practical problem through the Governor General’s Special Warrants, which allow the executive to issue funds that parliament would later retroactively approve. For most of the 20th century, the Ministry could advise the Governor General to issue Special Warrants when parliament stood prorogued or dissolved, without time limit. Back then, Jordan’s scenario could theoretically have played out.
The rest of Jordan’s ridiculous scenario will also not happen. For practical purposes, the 43rd Parliament will have to convene by January 2020. It might even meet in November or December 2019 considering that Prime Minister Trudeau convened the 42nd Parliament the first week of December 2015. Similarly, Prime Minister Harper wasted little time in summoning the first session of the 41st Parliament in June 2011, after the election in May.
How the Governor General’s Special Warrants Work Today
In 1997, however, Parliament passed an amendment to the Financial Administration Act that now strictly limits the circumstances and timeframe under which the Governor General’s Special Warrants can appropriate funds: if and only if parliament is dissolved, and only for a limited duration of 60 days beginning on the date fixed for the return of writs.
Payments urgently required
30 (1) Subject to subsection (1.1), where a payment is urgently required for the public good
(a) at any time that Parliament is not in session from the date of a dissolution until sixty days following the date fixed for the return of the writs at the general election immediately following that dissolution, and
(b) there is no other appropriation pursuant to which the payment may be made, the Governor in Council, on the report of the President of the Treasury Board that there is no appropriation for the payment and the report of the appropriate Minister that the payment is urgently required for the public good, may, by order, direct the preparation of a special warrant to be signed by the Governor General authorizing the payment to be made out of the Consolidated Revenue Fund.
No special warrants when Parliament prorogued
(1.1) The Governor in Council shall not, in the sixty days referred to in subsection (1), direct the preparation of a special warrant referred to in that subsection when Parliament is not in session on any of those days by virtue of the fact that it is prorogued.
(2) A special warrant issued pursuant to this section shall for the purposes of this Act be deemed to be an appropriation for the fiscal year in which the warrant is issued.
Publication and report
(3) Every warrant issued under this section shall be published in the Canada Gazette within thirty days after it is issued, and a statement showing all warrants issued under this section and the amounts of those warrants shall be laid by the President of the Treasury Board before the House of Commons within fifteen days after the commencement of the next ensuing session of Parliament.
The trio of proclamations for the dissolution of the 42nd Parliament and issuing of the writs of election on 11 September 2019 and for the pro forma summoning of the 1st session of the 43rd Parliament on 18 November 2019 made the writs returnable for 11 November 2019. The Ministry could therefore only invoke Special Warrants from 11 September 2019 up to 10 January 2020 if and only if the 1st session of the 43rd Parliament has not yet been recalled.
Governor General Special Warrants are used by the government to obtain the funds that are urgently required for the public good when Parliament is dissolved due to an election.
To be used, a minister must report that an expenditure is urgently required for the public good, and the President of the Treasury Board must report that there is no funding available through current appropriations to make the payment.
Governor General Special Warrants may be used to fund the normal operations of government, ongoing programs, contractual obligations or services to Canadians, such as passport delivery services, payments related to Old Age Security, or other income support benefits that must continue to be provided when Parliament is dissolved.
Governor General Special Warrants also allow organizations to continue to do the work that is essential to the normal operation of government until a new Parliament is formed and the next appropriation act is granted royal assent.
Any initiative that is to be considered for funding through Governor General Special Warrants must have received the appropriate Cabinet and Treasury Board approvals.
Every Governor General Special Warrant must be published in the Canada Gazette, within 30 days after it is issued. In addition, within 15 days of a new Parliament, the government must table a statement in the House of Commons displaying all of the Governor General Special Warrants that were issued while Parliament was not in session.
Peter Milliken – who would go on to serve as Speaker of the House of Commons with distinction during some tumultuous minority parliaments – introduced the private members’ bill that Parliament passed in 1997 as a reaction against how the Mulroney government over-relied on Special Warrants in the late 1980s. This authority to regulate Special Warrants lies entirely within Parliament’s purview. Parliament could even abolish the Governor General’s Special Warrants entirely if it wanted to do so. In fact, Parliament probably should do so because Special Warrants clearly violate the principles contained in the Bill of Rights, 1689 designed to thwart the kind of arbitrary rule to which the Stuart Kings of the 17th century demonstrated a worrying proclivity. Parliament alone controls the purse and can appropriate funds. Not since Charles I substituted parliamentary taxation between 1629 and 1640, in what Whig historians call the Eleven Years’ Tyranny, with the Crown’s prerogative to levy ship money has any English or British sovereign questioned parliament’s authority over obtaining supplies for the Crown.
After Phil Lagassé’s conference last Friday, I described the Governor General’s Special Warrants to the horror of several British scholars, who had never heard of such an equivalent in the United Kingdom. It appears that the British do not recognise anything like “the Queen’s Special Warrants.” In the UK, Royal Warrants of Appointment signify that the Sovereign or Prince of Wales (and perhaps other members of the Royal Family) endorse and use quality products of manufacture; Johnnie Walker, for instance, possess such a warrant and proudly displays it on all its bottles, as does Twinings on its boxes. Anne Twomey confirmed that the Governor General’s Special Warrants do not exist within the Commonwealth of Australia and that neither do any of the six Australian states permit Governor’s Special Warrants. Canada remains a curious outlier on this matter.
 Peter Milliken, “Appropriate Acts and Governor General Warrants,” Canadian Parliamentary Review (Summer 1990): 23.