Justin Trudeau Has Made Prorogation Great Again


Update: The Government House Leader tabled the Retroactive Prorogation Rationale in the House of Commons on 28 October.

Introduction

On 19 August 2020, the exigencies of a minority parliament and global pandemic brought about the first prorogation of the Parliament of Canada in seven years.[1] The day before, Prime Minister J. Trudeau had dismissed Bill Morneau, the Minister of Finance –universally recognised in all Commonwealth Realms as the most important cabinet portfolio.[2] Most of the press, with the notable exception of Paul Wells[3], portrayed Morneau’s dismissal as a voluntary resignation.[4] But rumours of Morneau’s dismissal had swirled the previous week, at which time the Prime Minister sealed Morneau’s fate by publicly affirming his confidence in his Minister of Finance.[5] This first prorogation since 2013 also stopped parliamentary committees from continuing their investigation into the WE Scandal, which had proven politically embarrassing to the Trudeau government and to Trudeau and Morneau in particular.[6] Under the circumstances, it is therefore difficult to deny the tactical nature of Trudeau’s first prorogation, which shows striking parallels to Harper’s second tactical prorogation of December 2009, which also halted a parliamentary committee’s study into a politically embarrassing issue. The proclamation set the start of the 2nd session of the 43rd Parliament for 23 September.[7]

But this prorogation should never have happened. Justin Trudeau became Prime Minister in 2015 pledging to put an end to the tactical prorogations of Stephen Harper. The Liberal platform in 2015 had declared: “Harper has used prorogation to avoid difficult political circumstances. We will not.”[8] In 2017, the Trudeau government published a discussion paper reiterating that pledge: “There have been instances where Governments have prorogued early in the session to avoid politically difficult situations. The Government committed to Canadians to not abuse prorogation in such a manner.”[9] Indeed, when the Liberals commanded a parliamentary majority, Trudeau initially hewed to his promise so literally that he took the unprecedented step of never proroguing the 42nd Parliament at all, the first time in Canadian history that a majority parliament lasted for four years under one session. The 1st session of the 42nd Parliament therefore, rather absurdly, lasted from December 2015 to October 2019. But the political exigencies of a minority parliament and the Pandemic conspired to make tactical prorogation too tempting once more.

Justin Trudeau has now made prorogation great again.

The Trudeau Government Proposed Reforms to Prorogation in 2017

The federal Liberal Party pledged in their election platform from 2015 that they would never use prorogation for purely political purposes or tactical considerations if they formed government. Instead, they would instead use prorogation in a perfunctory way and end a session once Parliament had passed their legislative commitments that flowed from the Speech from the Throne. After being sworn in on 4 November 2015 Prime Minister Trudeau instructed his House Leader through the mandate letter to “Change the House of Commons Standing Orders to end the improper use of omnibus bills and prorogation.”[10] On the afternoon of Friday, 10 March 2017 Bardish Chagger, the Government House Leader, released a paper entitled, “Reforming the Standing Orders of the House of Commons: Modernization of the Standing Orders of the House of Commons,” which includes a proposal on “discouraging governments from abusing prorogation.”[11] Finally, on 21 March 2017 the Trudeau government moved, over the objections of the opposition, that the Standing Committee on Procedure and House Affairs study its proposed amendments to the Standing Orders and report back to the House by June.

The discussion paper did not delve into great detail on how it proposes to amend the Standing Orders to “discourage governments from abusing prorogation.” It defines what prorogation is, admonishes the Harper government by implication for having used prorogation tactically in 2008 and 2009, and then offers two potential solutions to remedy that supposed problem:

Prorogation signifies the end of a session within a Parliament. At the beginning of a session, the Governor General sets out the Government’s agenda for the session in the Speech from the Throne. When the Government has delivered on its commitments in the Speech, the Prime Minister recommends to the Governor General to end the session through prorogation.

There have been instances where Governments have prorogued early in the session to avoid politically difficult situations. The Government committed to Canadians to not abuse prorogation in such a manner. 

One option would be to require that the Government table a document early in the following session that sets out the reasons for proroguing Parliament. The report could be automatically referred to committee for study and could be the subject of debates on Supply Days. Another approach could be to reinstate the prorogation ceremony that would resemble the approach used in the Speech from the Throne but would occur at the end of the session.[12] 

The first paragraph presents something of an ideal type of prorogation and does not take into account even prorogation under circumstances that the Liberals do not admonish, such as, for instance, intra-parliamentary changes of government and transition of power from one ministry to another.

Ultimately, the Trudeau government has thus far only pursued one of these options. The Liberals used their majority in the 42nd Parliament (2015-2019) to amend the Standing Orders of the House of Commons in June 2017. However, Prime Minister J. Trudeau opted not to prorogue the 42nd Parliament at all and let its 1st session last its entire life of four years[13], which precluded the possibility of reviving the prorogation by speech from the throne (as opposed to prorogation by proclamation) – a procedure, coincidentally, last used by Pierre Trudeau in 1983. In another amusing historical parallel, Trudeau I used the Prorogation Speech from the Throne to close what at that point had become the longest session of the Parliament of Canada, the 1st session of the 32nd Parliament, which lasted three years.[14] The Trudeau father-son duo now holds the records for the longest and second-longest sessions of the Parliament of Canada.     

The Reform to the Standing Orders and the Procedure and House Affair’s Committee’s Study on Prorogation

Prior to 2017, the Standing Orders contained a few provisions that describe how a prorogation affects the business of the House of Commons, but they did not then, and even now do not, attempt to regulate in any way how the Prime Minister exercises his authority over prorogation. For instance, Standing Order 49 states, “A prorogation of the House shall not have the effect of nullifying an Order of Address of the House for returns or papers […].”[15] Standing Order 55 pertains to how the Speaker of the House deals with preparing the Order Paper when Parliament is prorogued or dissolved and about to be summoned back. Finally, Standing Orders 86.1 and 86.2 declare that private members’ bills now survive prorogation intact, unlike government bills (and presumably also private bills), which die on the Order Paper.[16] These latter provisions, which the House of Commons adopted in 2003, represent the most significant shift in practice on prorogation of recent years.[17] Interestingly, the Rules of the Senate do not mention prorogation at all, except in the glossary’s entry for “Royal Prerogative.”[18]

On 20 June 2017, the House of Commons voted to amend its Standing Orders with respect to prorogation.[19] The new Standing Order does not claim to regulate how the Prime Minister exercises his authority over prorogation, which is simply beyond the authority of the House of Commons, and instead imposes an ex post facto requirement that the Government provide a retroactive explanation for the previous prorogation that has already happened. Standing Order 32(7) now says:

Not later than 20 sitting days after the beginning of the second or subsequent session of a Parliament, a minister of the Crown shall lay upon the table a document outlining the reasons for the latest prorogation. This document shall be deemed referred to the Standing Committee on Procedure and House Affairs immediately after it is presented in the House.[20]

The 2nd session of the 43rd Parliament began on 23 September 2020, and the House of Commons’ Sitting Calendar shows that 27 October marks the 20th sitting day of this session and the deadline by which the Trudeau government must table the document explaining the Prime Minister’s rationale for having prorogued the 1st session.

Wasting no time, Conservative MP Karen Vecchio moved a motion on the first day that the House of Commons Standing Committee on Procedure and House Affairs (PROC) met, 28 September, that the committee prepare a study on the forthcoming Retroactive Prorogation Rationale.[21] Under this motion, PROC would prepare a study of the Retroactive Prorogation Rationale and compel the Prime Minister and several other Ministers of the Crown to appear as witnesses; it would also issue an order “for all memoranda, e-mails, documents, notes or other records from the Prime Minister’s Office and the Privy Council Office, since June 25, 2020, concerning options, plans and preparations for the prorogation of Parliament, provided that these documents shall be provided to the clerk of the committee within ten days of the adoption of this motion.” In addition, the motion would seek information relating to the investigation in the 1st session of the 43rd Parliament – which the prorogation, by necessity, halted – into the WE Charity Scandal. Vecchio’s motion even alleges collusion between the Trudeau government and the WE Charity on the prorogation itself, asking that “WE Charity (including its affiliated organizations), Craig Kielburger, Marc Kielburger and Speakers’ Spotlight for all memoranda, e-mails, documents, notes or other records, since June 25, 2020, concerning the prorogation of Parliament, provided that these documents shall be provided to the clerk of the committee within ten days of the adoption of this motion.” The motion contains 15 paragraphs in total.

PROC consists of 12 MPs (6 Liberals, 4 Conservatives, 1 Bloquist, and 1 New Democrat) and is chaired by Liberal MP Rudy Sahota. Committee chairs only vote on private bills or to break a tie,[22] so all three opposition parties would therefore have to band together in support of this motion. But on 6 October, Sahota ruled that PROC only possesses the mandate under Standing Order 32(7) to conduct a study based on paragraphs a) through d) of Vecchio’s motion from 28 September because they pertain to the prorogation of the 1st session instead and not to the studies of the Standing Committee on Finance from the 1st session that the prorogation halted. In contrast, the content of paragraphs e) through o) would fall outside PROC’s mandate.  However, Sahota also argued that because the Trudeau government had not yet tabled its Retroactive Prorogation Rationale in the Commons, she would deem the entirety of Vecchio’s motion (even the first four paragraphs which clearly fall under PROC’s mandate under Standing Order 32(7)) inadmissible for the time being. The New Democratic MP on the committee voted with the Liberals to sustain this ruling, while the lone Bloquist MP sided with the Conservatives, 6-5.[23]

Ultimately, the Chair’s ruling cannot contravene or supersede Standing Order 32(7), and the Trudeau Government will have to table the documents outlining the Retroactive Prorogation Rationale very soon, at which point the Conservatives on PROC will no doubt table a new motion to conduct a study based on paragraphs a) to d) of the original motion of 28 September. On 20 October, Vecchio reminded the committee, “We know that prorogation should be coming up in the next week as well, so there are many priorities that this committee must study.”[24] As of 26 October, PROC has not received the Retroactive Prorogation Rationale, and the deadline looms. As of 27 October, the Trudeau government has not yet tabled a Retroactive Prorogation Rationale. But it surely must do so, at the very latest, by 28 October, the last possible date if you interpret “twenty sitting days after the beginning of the second or subsequent session” to exclude the first day and start only the second day, or first full day; the government cannot ignore Standing Order 32(7) altogether. At any rate, the Conservatives MPs on PROC, especially Karen Vecchio, will not let the matter drop. All this shows that the Retroactive Prorogation Rationale necessarily makes prorogation more political and contentious in a minority parliament.

Three years ago, I predicted in “Reforming Prorogation” in The Dorchester Review[25]in  and here on Parliamentum in “The Politics of Prorogation in Canada”that if the House of Commons that this proposed Standing Order (as it was at the time) would succeed only in making prorogation more political because it both could do nothing to curtail or regulate the Prime Minister’s authority over prorogation yet would also force the House of Commons to waste time engaging in a retrospective debate over a prorogation that already happened and could not be undone. In majority parliaments, the new requirement under Standing Order 32(7) would prove perfunctory, since the MPs of the governing party also form a majority on the committee and can vote down any study or motion. But in a minority parliament, this new Standing Order could very easily reap great political fodder from the previous prorogation and perhaps even use the required government response into a pretext for a vote of non-confidence.

What the Opposition Could Do To Restrict Prorogation in This Minority Parliament

Perhaps MPs could take a more serious approach to prorogation than by adding in new and pointless Standing Orders that retroactively relitigate a prorogation that has already happened and cannot be undone. But devising a practical and constitutionally sound approach to regulating the exercise and effects of prorogation depends upon a firm understanding of the Constitution of Canada and how responsible government works. In other words, there is virtually no chance that anything substantive will happen.

At its core, Responsible Government is a trinity (three in one) of responsibilities: ministerial responsibility to the Crown, individual ministerial responsibility before the Commons, and collective ministerial responsibility & solidarity before the Commons.[26] The Government must command the confidence of both the Governor, who grants Ministers the authority to govern under the Crown, and of the legislative assembly, which must pass supply or else force either the Government’s resignation or dissolution and fresh elections. And in practice, Responsible Government means that “Ministers of the Crown take responsibility for all acts of the Crown” and that the Governor General acts on and in accordance with ministerial advice, save for exceptional circumstances, which in turn ensures the partisan neutrality of the Crown that he represents.[27] The Governor General may reject or act contrary to ministerial advice only under exceptional circumstances precisely because of the exceptional consequence of his exercise of his discretionary authority: he forces the resignation of the Ministry and must appoint another that can subsequently take responsibility for those acts of the Crown. If a Governor General ever attempted to do the unprecedented and take the constitutionally dubious stance of rejecting a prime minister’s advice to prorogue, then the Prime Minister would have to resign or worse still, advise the Queen to dismiss the Governor General. Ultimately, the governor’s first constitutional duty is to ensure that there is a duly constituted government in office at all times, because the Queen’s business must go on.

Where the Constitution Acts mention the Governor General, the Prime Minister by convention tenders and takes responsibility for that advice; where they mention the Governor-in-Council, the Cabinet collectively tenders advice and takes responsibility for those acts of the Crown. Combining the written constitution with the conventions of Responsible Government, we derive the following formulation: the Governor General summons, prorogues, and dissolves the Legislature on and in accordance with the advice of the Prime Minister. The Constitution of Canada includes both the Constitution Acts and the constitutional conventions of Responsible Government. Parliament therefore cannot drive a wedge between the Governor General, who carries out advice in the Queen’s name, and the Prime Minister, who advises the Governor General and derives his commission of authority to govern from him, or otherwise attempt to draw a false distinction between the two, because under no circumstances could the Governor General act independent of ministerial advice on matters of state, and only under the aforementioned exceptional circumstances could the Governor General act contrary to ministerial advice.

Logically, therefore, if a statute purports to limit how the Prime Minister can exercise the discretion to advise and take responsibility for the summoning and prorogation of Parliament, then it also necessarily limits how the Governor General acts on and promulgates that advice. Such a statute would therefore limit and abridge the authority of the Crown over prorogation, which derives from sections 9 and 38 of the Constitution Act, 1867, and would be unconstitutional, because only an amendment under section 41(a) of the Constitution Act, 1982 can change anything “in relation to the office of the Governor General.” No one can deny this without calling into question the definition and conventions of Responsible Government themselves – anyone who insists otherwise is merely peddling sophistry. My opponents would first need to demonstrate that the premises of my argument are false, and none of them has succeeded in doing so, as much as they would wish otherwise. All the precedents – including those recent cases in British Columbia in 2017 and New Brunswick in 2018 – support my premises and, thus, my conclusion.

Prorogation ends a session of parliament and thereby clears all business from the Order Paper as if it never existed (apart, since 2003, from Private Members’ Bills) and terminates all committee business. The period between sessions of Parliament, the duration of the prorogation, is called the intersession. The executive authority over prorogation ultimately flows from the Constitution Act, 1867; section 9 vests the general “executive authority in and over Canada” in the Queen, and section 38 vests in the Governor General the authority to summon, and therefore by necessity, to prorogue, Parliament.[28] The Prime Minister alone advises the Governor General to prorogue a session of Parliament, either through an instrument of advice or by telephone.[29] The prorogation is promulgated into force either by a set of two proclamations published in the Canada Gazette or by the Governor General’s speech in the Senate.[30] The first proclamation, or the speech in the Senate, prorogues the session of parliament, and the second proclamation summons the next session of parliament for “dispatch of business”, usually within 40 days, at a date named therein. The prime minister may, however, advise the Governor General to issue additional proclamations extending the intersession, normally in increments of 40 days.[31] In theory, the only hard limit to the duration of an intersession is section 5 of the Constitution Act, 1982, which states that parliament must meet at least once every 12 months, but 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. So, too, does the fact that since 1997, the Financial Administration Act  has limited the issuance of Special Warrants to when parliament is dissolved and only for up to 60 days.[32]    

The best approach would be to regulate the exercise of the executive authority over prorogation, but without substantially restricting it or attempting to abolish it. For instance, Parliament could pass a statute requiring that it must meet at least once every six months. Since this statutory requirement would exceed the minimum standard contained in section 5 of the Constitution Act, 1982 that Parliament must meet at least every 12 months, it would not even need to be presented as a constitutional amendment passed under Section 44 Amending Formula (though lengthening the maximum time that can elapse between sittings of parliament beyond 12 months certainly would). Parliament could also require that the first session of a new parliament after an election be summoned within a specific number of days. Parliament could probably also limit the duration of prorogations, within a reasonable timeframe that does not deviate too far from existing practice, without running afoul of section 41(a). Currently, proclamations of prorogation can state that Parliament will reconvene for despatch of business at a pro forma date, which the Prime Minister can decide to extend by advising the Governor General to issue a subsequent proclamation that extends the intersession. Such a statute could attempt to limit the intersession to, say, an absolute maximum of 60 or 70 days.

Professor Hugo Cyr has argued that the House of Commons alone can limit the Prime Minister’s authority advise the Governor General to prorogue or dissolve Parliament by adopting Standing Orders such that the Prime Minister could tender this constitutional advice if and only if the House of Commons had already voted in favour of it, thus turning the question into a matter of confidence.[33] This is false. Prorogation and dissolution are constitutionally entrenched executive authorities, not proceedings of parliament, and thus lie beyond the purview of either the House of Commons alone or the Senate alone to regulate. They affect both houses –hence why we say prorogation or dissolution of parliament, not of the House of Commons. Each house of parliament can merely determine, through its collective parliamentary privilege of establishing rules governing their proceedings, how prorogation affects legislative business after the fact. Only an act of parliament or constitutional amendment could claim to regulate the exercise of an executive prerogative authority.

In general, concrete reforms to regulate executive authorities like prorogation are more likely to be enacted in a minority parliament, over the government’s initial objections but as part of a grand bargain, as opposed to being introduced as government legislation in a majority parliament. After all, governments are reticent to relinquish or limit their own authority, especially when it gives them a political or tactical advantage over the opposition. However, any statute or constitutional amendment designed to regulate the exercise of prorogation would require Royal Consent by Third Reading, since such legislation would directly affect an established executive prerogative authority; and, like Royal Recommendation, the Governor General grants Royal Consent only on and in accordance with the advice of the executive.[34] The most likely scenario for enacting such a statute would be where a minority parliament extracts this concession from a single-party minority government as part of a larger bargain, like support for a supply bill in order to stave off an early dissolution. In other words, the Liberals, New Democrats, and Bloc Quebecois squandered their best chance at enacting this reform from the Harper government at some time between January 2009 and March 2011. And this current 43rd Parliament, in which the Liberals only hold a plurality of seats and single-party minority government, presents yet another opportunity for substantive reform if the Conservatives, New Democrats, and Bloc Quebecois force the Trudeau government’s hand. But in all likelihood, the Trudeau government would deem any bill tabled to regulate the exercise of prorogation as a matter of confidence and successfully co-opt the New Democrats to shield and prop up the Liberals, since the two parties combined yield a parliamentary majority. The House of Commons alone cannot regulate the exercise of executive authority over prorogation itself. Under the current system, only the Prime Minister can.

Conclusion: Prorogation Comes Full Circle

Scholars who vociferously denounced Stephen Harper for his tactical prorogations in 2008 and 2009 in breathless columns in the Globe and Mail and other newspapers, some of whom later turned that invective toward me and Nick MacDonald in 2011 when we wrote “No Discretion: On Prorogation and the Governor General” for the Canadian Parliamentary Review, have remained conspicuously and ostentatiously silent on Trudeau’s tactical prorogation of 2020 – like it never happened.

We also gave a presentation on our project on the morning of Friday, 11 February 2011 at Carleton University’s Bell Chair Conference, which took place that day in in room 238-S of Centre Block. But we could barely get through our presentation at all because of the incessant heckling and interruption of William Cross, Professor of Political Science at Carleton University. The moderator of our panel, Jonathan Malloy, begrudgingly admitted in his concluding remarks that he found our paper “highly polished,” but only with some reluctance and in a condescending tone which heavily implied that he viewed it as highly polished sophistry; he also took pains to reassure the heckling academic mob that he disagreed with our conclusions. That said, we did present alongside John Nater, then a PhD candidate and now the Conservative MP for Perth-Wellington, who gave an interesting talk on the Speaker’s authority to eject MPs from the Commons, and I also ended up befriending and later collaborating with one of my hecklers from the audience. I don’t mind heckling and being heckled, as long as it’s done right.   

The denunciations over prorogation had only just begun at that conference in February 2011, however. Johannes Wheeldon wrote three articles denouncing Harper’s prorogations[35], beginning with one specific response to “No Discretion” in the Canadian Parliamentary Review[36]; he later turned his rage over Harper toward me personally, dismissing me as a “CPC apologist”[37] in 2012 and making baseless accusations that I had not cited my sources in a panel on which he, Peter Russell, and I all participated at the Canadian Political Science Association’s Conference in June 2013. (In fact, I did; he simply did not like that the precedents have always supported my arguments rather than his). Somehow, I suspect that Wheeldon will write not even one article on Trudeau’s tactical prorogation, let alone three. Disdain for Harper even induced innumeracy and carelessness for basic fact-checking in some of his critics. As I pointed out at the time, Lori Turnbull contributed a column to the Globe and Mail originally entitled “A Threepeat for Prorogation? Bring On Reform” on the occasion of media-induced speculation that Harper’s fourth prorogation would take place in 2011.[38] (In fact, it did not happen until 2013). Turnbull declared, “If the rumours are true, this would be the third time that Mr. Harper has prorogued Parliament. The first occurred in December, 2008, when he requested an end to the session so that his government could avoid a vote of no-confidence that was sure to defeat it. The second was in December, 2009.”[39] That is false. In fact, Harper’s first prorogation occurred in September 2007[40]; the second, in December 2008[41]; the third, in December 2009[42]; and the fourth, in September 2013.[43] The first and fourth were routine and perfunctory, while the second and third were tactical and controversial.    

When scholars condemn Harper but remain silent on Trudeau when the two prime ministers undertook virtually identical actions (like appointing a new justice to the Supreme Court a few days before the writs in 2015 and in 2019)[44], or similar decisions (like tactical prorogations to stall the investigations of parliamentary committees on matters inconvenient to the government), it is difficult to believe that they are motivated strictly by genuine argumentation based on process and political institutions. They are not following the logos but instead succumbing to a careerist impulse to denounce prime ministers already unpopular in their peer groups. (I first noted this trend back in 2011 in “Constitutional Scholarship versus Political Activism.”) Where is Errol Mendes’s column in the Globe and Mail condemning Trudeau? He prevaricated incessantly about Harper’s tactical prorogations in 2008 and 2009, and he even trekked across the Atlantic in 2019 to slay a new Conservative dragon in the form of British Prime Minister Boris Johnson over his prorogation of the Westminster Parliament before it even happened.[45] Trudeau’s prorogation of 2020 bear strong similarities to Harper’s of 2009 – in the sense that they both paused the work of parliamentary committees studying matters which embarrassed the government – yet Mendes now chooses to remain silent. Peter Russell has also declined to write on Trudeau’s tactical prorogation despite devoting considerable time to criticising Harper’s. In contrast, Malloy has at least also criticised Trudeau’s tactical prorogation, while still portraying it as less egregious than Harper’s despite its close similarities to that of 2009, and recently argued that Canada should “discontinue its use entirely.”[46] (He did not specify by what means, however).  

In February 2011, we were seen as reactionary, pro-Harper propagandists, and we’ve watched with great amusement over the last decade how most other political scientists and lawyers have come to accept our view as orthodoxy, which began when the late Peter Hogg cited us in his treatise on Constitutional Law in 2012,[47] a few months before Premier McGuinty’s tactical prorogation in Ontario. Now that Justin Trudeau has undertaken his first prorogation – in a minority parliament amidst political scandal and the fallout over his dismissal of the Minister of Finance, no less – everything has come full circle. In the last decade, our argument has gone from unutterable heresy – barely tolerated behind a mixture of passive-aggressive tutting, overt heckling, and clenched teeth sucking in air – to the obvious orthodoxy with which everyone secretly agreed all along. I’m glad that everyone now apparently understands how the established constitutional positions of the Governor General and Prime Minister work under Responsible Government, but it should not have taken a decade to get there.

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Notes


[1] Canada Gazette, Part II, “Proclamation Proroguing Parliament for September 23, 2020,” Volume 154, No. 17 (Ottawa : Her Majesty the Queen in Right of Canada, 19 August 2020), 1990-1991.

[2] Ryan Tumilty and Brian Platt, “Trudeau Prorogues Parliament, Ending WE Investigations and Leaving Commons Empty for Weeks,” National Post, 18 August 2020.

[3] Paul Wells, “Bill Morneau Melting Away,” Maclean’s, 17 August 2020.

[4] Jolson Lim, “Bill Morneau Resigns as Canada’s Finance Minister,” iPolitics, 17 August 2020; Peter Zimonjic and David Cochrane, “Bill Morneau Resigns as Finance Minister and MP, Will Seek to Lead OECD,” CBC News, 17 August 2020; Hannah Jackson, “Bill Morneau Steps Down as Finance Minister,” Global News, 17 August 2020

[5] Joan Bryden, “Trudeau Denies Bill Morneau to Be Fired as Finance Minister,” Canada’s National Observer, 12 August 2020.

[6] Kathleen Harris and Aaron Wheery, “Parliament Prorogued until Sept. 23 as Trudeau Government Reels from WE Charity Controversy,” CBC News, 18 August 2020; Rachel Aiello, “PM Trudeau Prorogues Parliament Until Sept. 23,” CTV News, 18 August 2020.

[7] Canada Gazette, Part II, “Proclamation Summoning Parliament to Meet on September 23, 2020 (DISPATCH OF BUSINESS),” Volume 154, No. 17 (Ottawa : Her Majesty the Queen in Right of Canada, 19 August 2020), 1992-1993.

[8] Liberal Party of Canada, Real Change: A New Plan for a Strong Middle Class, October 2015, page 30.

[9] Canada, Government House Leader, “Reforming the Standing Orders of the House of Commons,” 10 March 2017.

[10] Canada, Privy Council Office, “Mandate Letters: Leader of the Government in the House of Commons,” 4 November 2015 [accessed 19 March 2017].

[11] Canada, “Government House Leader Releases a Discussion Paper on the Modernization of the House of Commons,” 10 March 2017 [accessed 19 March 2017]; Canada, Government House Leader, “Reforming the Standing Orders of the House of Commons,” 10 March 2017 [accessed 19 March 2017].

[12] Canada, Government House Leader, “Reforming the Standing Orders of the House of Commons,” 10 March 2017 [accessed 19 March 2017].

[13] Parliament of Canada, ParlInfo, “42nd Parliament,” accessed 11 September 2019

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

[15] Standing Orders of the House of Commons (Ottawa: House of Commons, April 2020), page 44.

[16] Standing Orders of the House of Commons (Ottawa: House of Commons, April 2020), pages 54, 91-92.

[17] Audrey O’Brien and Marc Bosc, House of Commons Procedure and Practice, 2nd Edition (Ottawa: Parliament of Canada, 2009).

[18] Rules of the Senate (Ottawa: Senate of Canada, December 2016), 127.

[19] Canada, House of Commons, 42nd Parliament, 1st Session, Journals, No. 198, Division No. 341 (Tuesday, 20 June 2017), pages 14-19.

[20] Standing Orders of the House of Commons (Ottawa: House of Commons, April 2020), page 26.

[21] Karen Vecchio [“Motion”] in Canada, House of Commons, 43rd Parliament, 2nd Session, Standing Committee on Procedure and House Affairs, Minutes of Proceeding, Meeting No. 1, 28 September 2020.

[22] Audrey O’Brien and Marc Bosc, “Committees: Role of Chairs,” Chapter 20 in House of Commons Procedure and Practice, 2nd Edition (Ottawa: House of Commons, 2009),1031.

[23] Ruby Sahota [“Ruling by the Chair”] in Canada, House of Commons, 43rd Parliament, 2nd Session, Standing Committee on Procedure and House Affairs, Minutes of Proceeding, Meeting No. 2, 6 October 2020.

[24] Karen Vecchio in Canada, House of Commons, 43rd Parliament, 2nd Session, Standing Committee on Procedure and House Affairs, Evidence, Meeting No.3, 20 October 2020, page 8.

[25] James W.J. Bowden, “Reforming Prorogation,” The Dorchester Review 7, no. 1 (Spring-Summer 2017): 64-68.

[26] Robert Macgregor Dawson, “The Constitutional Question,” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.

[27] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102; R. Macgregor Dawson, The Government of Canada. 5th ed. (1970), revised by Norman Ward (Toronto: University of Toronto Press, 1947): 175.

[28] Warren J. Newman, “Of Dissolution, Prorogation, and Constitutional Law, Principle and Convention: Maintaining Fundamental Distinctions During a Parliamentary Crisis,” National Journal of Constitutional Law 27 (2009): 219, 229.

[29] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 401-405; Canada, Privy Council Office, Instrument of Advice from Prime Minister Mulroney to Governor General Sauvé, 26 August 1986, page 63 of ATIP A-2015-00504.

[30] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 401-405.

[31] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 401-405.

            [32] Peter Miliken’s Private Members’ Bill, An Act to Amend the Financial Administration Act, implemented this change in 1997. Prior to 1997, Special Warrants could be issued during an intersession.

[33] Canada, House of Commons, Debates, 42nd Parliament, 1st Session, No. 198, Vol. 148 (20 June 2017), page 12,963.

[34] In fact, the Privy Council Office shows that the Prime Minister alone requests that the Governor General grant a bill Royal Consent through an instrument of advice. Prime Minister Trudeau I issued an instrument of advice asking that the Governor General give Royal Consent to a bill pertaining to pensions to civil servants on 24 June 1980, because pensions were traditionally a prerogative authority of the Crown and bestowed upon favoured subjects. Canada, Privy Council Office, Instrument of Advice from Prime Minister Trudeau to Governor General Schreyer on Royal Consent to “An Act to amend the Financial Administration Act (garnishment and attachment),” 12 March 1979, page 34 of ATIP A-2015-00504. 

[35] Johannes Wheeldon, “An Empirical Assessment of the Views of Constitutional Scholars on the 2008 Prorogation,” conference paper presented at the Canadian Political Science Association, Victoria, British Columbia, June 2013; Johannes Wheeldon, “Constitutional Peace, Political Order, or Good Government? Organizing Scholarly Views on the 2008 Prorogation,” Canadian Political Science Review 8, no. 1 (2014): 102-125. 

[36] Johannes Wheeldon, “Prorogation as Constitutional Harm,” Canadian Parliamentary Review 34, no. 2 (Summer 2011): 69-70;

[37] Johannes Wheeldon (@JusticeLawDev), tweet to James Bowden (@JWJBowden), on 19 February 2012.

[38] Lori Turnbull, “A Three-peat for Prorogation? Bring On Reform,” Globe and Mail, 28 November 2011 [accessed 14 October 2020 through the trusty Internet Archive].

[39] Lori Turnbull, “A Three-peat for Prorogation? Bring On Reform,” Globe and Mail, 28 November 2011 [accessed 14 October 2020 through the trusty Internet Archive].

[40] Canada Gazette, Part II, “Proclamation Proroguing Parliament to October 16, 2007, ” Extra, Volume 141, no. 2 (Ottawa: Her Majesty the Queen in Right of Canada, 15 September 2007), 1-3.

[41] Canada Gazette, Part II, “Proclamation Proroguing Parliament to January 26, 2009”, Extra, Volume 142, no. 6 (Ottawa: Her Majesty the Queen in Right of Canada, 5 December 2008), 1-3.

[42] Canada Gazette, Part II, “Proclamation Proroguing Parliament to March 3, 2010”, Extra, Volume 143, no. 3 (Ottawa: Her Majesty the Queen in Right of Canada, 31 December 2009), 1-3.

[43] Canada Gazette, Part II, “Proclamation Proroguing Parliament to October 16, 2013,” Extra, Volume 147, No. 1 (Ottawa: Her Majesty the Queen in Right of Canada, 16 September 2013), 1-3.

[44] Michael Plaxton wrote two articles denouncing Harper in 2015 for having violated the caretaker convention because he nominated by Order-in-Council a new justice to the Supreme Court of Canada a few days before the writ; yet, when Trudeau in 2019 also nominated a new justice to the Supreme Court of Canada by Order-in-Council a few days before the writ, Plaxton could only muster two half-hearted tweets.[44] I incurred his scholarly wrath by pointing out the discrepancy between the orders of magnitude of his two contrasting responses to two identical incidents; in return, he rather amusingly decided not to cite “No Discretion” in his new book on the various arguments made on Harper’s tactical prorogations of 2008 and 2009. See Carissima Mathen and Michael Plaxton, The Tenth Justice: Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference (University of British Columbia Press, 2020), 32, 201.

[45] Errol Mendes, “In Proroguing the British Parliament, Boris Johnson Follows in Stephen Harper’s Footsteps,” The Globe and Mail, 28 August 2019.

[46] Jonathan Malloy, “Why Trudeau’s Self-Serving Prorogation of Parliament Should Be Canada’s Last,” The Conversation, 21 August 2020.

[47] Peter W. Hogg, Constitutional Law of Canada, loose-leaf edition (Toronto: Carswell, 2012)

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively in my field. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Crown (Powers and Office), Prorogation. Bookmark the permalink.

1 Response to Justin Trudeau Has Made Prorogation Great Again

  1. Rand Dyck says:

    Isn’t it time for your article on Sask and AB???
    ________________________________

    Like

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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