The Trudeau Government’s Retroactive Prorogation Rationale Under Standing Order 32(7)


Introduction

In my previous post, I recounted how the House of Commons had added in Standing Order 32(7) in June 2017, on the initiative of the Trudeau government and its parliamentary majority at the time, which now obliges the government of the day to table a report outlining the rationale for the previous prorogation. I remarked that, depending on how you count “sitting day,” the deadline for tabling this document would have occurred on either 27 or 28 October. The new Standing Order 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.[1]

The Leader of the Government in the House of Commons dutifully tabled the document on 28 October as Sessional Paper 8560-432-1261-01,[2] revealing entitled Report to Parliament: August 2020 Prorogation – COVID-19 pandemic. I have uploaded it here to Parliamentum for your reference.

The Report Itself

The Report consists of three main sections:

1.      the substantive report itself which provides the Trudeau government’s official rationale for the prorogation of the 1st session of the 43rd Parliament, which, in turn, breaks down in an “Introduction,” “The COVID-19 Pandemic,” “Prorogation,” “Speech from the Throne,” “Moving Forward,” and “Conclusion”;

2.      Annex 1, which reprints Prime Minister J. Trudeau’s initial remarks to the press on the prorogation from 18 August 2020, and;

3.      Annex 2, which attaches the Speech from the Throne opening the 2nd session on 23 September 2020.

The first section lists what the government regards as its legislative accomplishments for the session and, in this manner, reads almost like the old closing Speeches from the Throne which Governors General delivered in the Senate and by which Governors General prorogued parliament.

However, the “Introduction” contains some interesting assertions and omissions on which reasonable persons can disagree:

In 2015, our government committed to changing the Standing Orders to ensure that ours and future federal governments remain transparent with Canadians in all aspects of governance, including the use of prorogation. This report is intended to provide parliamentarians, and all Canadians, with greater clarity about why our government prorogued Parliament in August 2020.

Prior to 2015, prorogation had been used by the previous government as a tool to further what many Canadians believed were purely political outcomes. For example, in 2008, as the country was experiencing the devastating effects of a global financial crisis, the government of the day prorogued to avoid a confidence vote that could potentially have caused its fall.

Our government’s Speech from the Throne in December 2019, following the October election, set out a number of important commitments. These included, but were not limited to, achieving net-zero emissions by 2050; legislating the implementation of the United Nations Declaration on the Rights of Indigenous Peoples; furthering free and fair trade, and investing in affordable housing across the country.

While these remain core commitments, it became clear in the first half of 2020 that the 2019 Speech from the Throne – through which our government had obtained the confidence of Members of Parliament in the House of Commons – no longer represented the context in which we would govern. The cause of this upheaval, of course, was the COVID-19 pandemic.

The implication of the second paragraph seems debatable. A reasonable and strong case on procedural and policy grounds would support that the 43rd Parliament needed a 2nd session and new Speech from the Throne to shift focus toward the Government’s and Parliament’s response to the COVID-19 Pandemic – under a new Minister of Finance, no less – because we obviously had no way of knowing in the fall of 2019 the enormous extent to which this virus would upend and dominate 2020. Prorogations often coincide with dismissals and resignations of ministers and cabinet reshuffles. However, it is also true that this tactical prorogation halted the committee hearings into the WE Scandal. This prorogation stemmed from both these procedural and political concerns, but the Prorogation Rationale makes no mention of the WE Charity Scandal, and it only refers to Bill Morneau’s dismissal resignation as Minister of Finance in Annex 1, the speech with the Prime Minister delivered on 18 August.

The authors of this document in the Privy Council Office or Prime Minister’s Office note that the Harper government used prorogation “as a tool to further what many Canadians believe were purely political outcomes.” Many Canadians also believe in 2020 that the Trudeau government used prorogation tactically to achieve political ends. Prime Minister Chretien also used prorogation in November 2003 to delay the tabling of the Auditor General’s report into the Sponsorship Scandal.[3] In 1997, British Conservative Prime Minister John Major also used prorogation to prevent an inconvenient report on the conduct of his ministers from being tabled in the last session of parliament before the election; in the end, it mattered not in the slightest because Tony Blair led the Labour Party to its biggest electoral landslide in history, before Sir Gordon Downey’s report on the Cash-for-Questions Scandal was made public.

Prorogation is indeed a political tactic, and there’s nothing wrong with it. Prorogation merely allows the executive to delay. Shelia Fraser tabled her report after the 3rd session of the 38th Parliament convened on 2 February 2004, and the Sponsorship Scandal motivated Prime Minister Paul Martin to advise an early dissolution and election that June. The Scandal ultimately doomed his minority government in November 2005 and contributed to the Conservatives’ victory in January 2006. When Harper secured the prorogation of the 1st session of the 40th Parliament in December 2008, this merely delayed a vote of confidence in his minority government. The internal machinations of the Liberal Party had sorted themselves out –Stephane Dion attempted to unresign a few weeks after announcing his upcoming resignation, and Michael Ignatieff successful forced to Dion re-resign so that he could replace Dion as party leader – by the time that the 2nd session reconvened in January 2009. At that point, the Liberals decided to sustain the Harper government after all in a vote of confidence on Keynesian stimulus spending.

Perhaps the “Introduction” did not also mention Harper’s second tactical prorogation of December 2009 precisely because it bears such a strong similarity to the prorogation of August 2020; after all, both halted the hearings of parliamentary committees which the governments of the day found politically embarrassing.

Conclusion

Under Standing Order 32(7), this report goes automatically to the Standing Committee on Procedure and House Affairs, where Conservative MP Karen Vecchio will almost certainly re-introduce the portions of her motion from 28 September which the Chair ruled on 6 October would pertain to the committee’s mandate.[4] Vecchio had called upon the committee to do the following:

a) invite the Prime Minister, the Deputy Prime Minister and Minister of Finance, the Minister of Diversity and Inclusion and Youth, and the Leader of the Government in the House of Commons each to appear separately before the committee for at least three hours, provided that in respect of each of them who does not agree, within one week of the adoption of this motion, to accept this invitation for the length of time prescribed, the Chair shall be instructed to report to the House forthwith a recommendation that this committee be empowered to order his or her appearance from time to time;

(b) an order of the committee do issue 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;

(c) an order of the committee do issue for a record of all communications between the government and any of WE Charity (or its affiliated organizations), Craig Kielburger, Marc Kielburger, Speakers’ Spotlight, Rob Silver or MCAP since June 25, 2020, in respect of 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;

(d) an order of the committee do issue to 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 […].[5]

However, the Conservatives will need the support of the one Bloquist and one New Democrat on the committee in order to pursue these hearings. I shall watch the proceedings with PROC with great interest. But irrespective of what happens, Standing Order 32(7) will have succeeded only in making prorogation more political and controversial. The House of Commons might want to repeal it.

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Notes

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

[2] House of Commons, 43rd Parliament, 2nd Session, Journals, No. 21 (Unrevised), “Returns and Reports Deposited with the Clerk of the House” (Wednesday, 28 October 2020), page 5. “— by Mr. Rodriguez (Leader of the Government in the House of Commons) — Report to Parliament outlining the reasons for the prorogation of the First Session of the 43rd Parliament, pursuant to Standing Order 32(7). — Sessional Paper No. 8560-432-1261-01. (Pursuant to Standing Order 32(7), permanently referred to the Standing Committee on Procedure and House Affairs)”

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

[4] 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.

[5] 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.

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.

2 Responses to The Trudeau Government’s Retroactive Prorogation Rationale Under Standing Order 32(7)

  1. Rand Dyck says:

    Another good one, James! We couldn’t do without you!

    Like

  2. P B says:

    Thanks for highlighting this. The Opposition gets another kick at the can thanks to Standing Order 32(7).

    Like

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