PROC Examines the Retroactive Prorogation Rationale After All


PROC decided to study the Retroactive Prorogation Rationale (Sessional Paper 8560-432-1261-01_e) in 2020 after all. Committees tend not to update the official transcripts (Evidence) until two weeks later, so I misinterpreted and missed some of these developments last month by going off the Minutes alone.

On Thursday, 10 December, PROC invited four university professors – Kathy Brock, Philippe Lagassé, Barbara Messamore, and Daniel Turp – to appear remotely as witnesses and speak to the first Retroactive Prorogation Rationale released under the new Standing Order 32(7). PROC has not made the official Evidence public yet, so I’m taking this dialogue from Parl Vu and translating remarks from French into English where necessary.

Daniel Turp (a former Bloc Quebecois MP, a current Professor of Law at the University of Montreal, and avowed anti-monarchist secessionist) went first. Festooned in an unctuous bowtie that made him look like Tucker Carlson in 2004, he launched into an interminable opening statement and pontificated incessantly about “prerogatives, hypocrisy, and democracy.”

Turp notes that the Governor General prorogued the 1st session of the 43rd Parliament on the Prime Minister’s constitutional advice. Desperate to flaunt his superior intellect to all, Turp then made the too-clever-by-half and absurd claim that the prime minister has no authority over prorogation at all.  He said that the prerogative authority over prorogation “is presented as having its source […] in a memorandum concerning certain functions of the prime minister which was adopted on 25 October 1935.” He continued:

What is interesting about this declaration, in this memorandum […] on the special prerogatives of the prime minister is that it mentions notably the ‘dissolution and convocation of parliament.’ There is nothing on prorogation in this memorandum. Thus, I would like to underscore that to the Committee and to invite the Committee to ask itself whether there truly is a special prerogative of the prime minister, or if this prerogative exists only for dissolution and convocation and whether he [the prime minister] really has the power to recommend the prorogation of parliament’s work as Prime Minister Justin Trudeau did, and as Prime Minister Harper and other Prime ministers have done in the history of Canada.

This oh-so-clever statement contains numerous inaccuracies and falsehoods. I will re-state here more concisely what I wrote at great length in my thesis and in my article “The Politics on Prorogation in Canada” from 2017.

First, the source of executive authority over prorogation ultimately stems from section 38 of the Constitution Act, 1867: “The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons.” Similarly, the authority over dissolution comes from section 50 of the same –Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer” –and also now from section 4(1) of the Constitution Act, 1982: “No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writes at a general elections of its members.” By definition, the Governor General cannot summon and call together the House of Commons for a 2nd or subsequent session of a parliament unless he had already prorogued the previous session. In other words, prorogation is inherent in “summoning and calling together” or in “the convocation of parliament.” Section 38 of the CA, 1867 includes prorogation by necessary implication.

The Letters Patent Constituting the Office of the Governor General of Canada, most recently issued in 1947, removes any doubt that the authority to summon parliament includes the authority prorogue parliament by necessary implication. Every iteration of these executive instruments has always highlighted the fact that these three executive authorities always go together. Section 6 of current Letters Patent says: “VI. And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada.” The previous iteration of the Letters Patent from 1931 said much the same in section 5: “And We do further authorize and empower Our said Governor-General to exercise all powers lawfully belonging to Us in respect of the summoning, proroguing, or dissolving the Parliament of Our said Dominion.” And the iterations of the Letters Patent from 1905 and those from 1878 contain identical wording.

Professor Kathy Brock of Queen’s University made precisely the same argument about prorogation flowing from section 38 and the Letter Patent in her opening statement. Anyone who reads the Constitution Act, 1867 and the Letters Patent – which have been freely available in black and white for decades – would draw the same conclusion because it is obvious and incontrovertible.

Second, therefore, the Memorandum on the Special Prerogatives of the Prime Minister itself does not provide the source of the Prime Minister’s authority to advise the Governor General on summoning, proroguing, and dissolving parliament, as Turp suggested; it merely affirms the existence of this authority, which comes from the Constitution Act, 1867 and all iterations of the Letters Patent Constituting the Office of the Governor General of Canada combined with the constitutional conventions of Responsible Government and the established constitutional positions of the Governor General and Prime Minister. Turp failed to acknowledge – and, frankly, is probably unaware – that the “Memorandum on the Special Prerogatives of the Prime Minister” has gone through six iterations, with the first from 1896 and the sixth and most recent from 1935. As I outlined in my article in The Dorchester Review last year and have expounded upon at greater length in an article that will be published in the upcoming issue of the Journal of Parliament and Political Law,[1] all six iterations of the Memorandum were promulgated as Orders-in-Council, and it was Sir Charles Tupper who first issued it, probably to shore up his remarkably and uniquely tenuous position of being the only prime minister of Canada who never held the confidence of any House of Commons owing to his appointment during the writ and to having lost the election.

What Turp proposes is patently ridiculous: that the Prime Minister advises the Governor General to dissolve Parliament and to summon a parliament for a new session, but the Prime Minister cannot advise the Governor General to prorogue parliament – even though prorogation is a necessary condition for summoning the 2nd and subsequent sessions of a parliament. Parliament somehow prorogues itself by other means that he cannot specify because he conjured this rubbish up out of thin air. Under Turp’s logic, the Prime Minister could only advice the Governor General to summon Parliament for its 1st session after the previous dissolution, but he could not advise the Governor General to prorogue Parliament, even though, by definition, a 2nd or subsequent session of a parliament can only be summoned after a prorogation. Turp’s assertion, like most statements offered up purely to seem clever, quickly breaks down under the slightest scrutiny. And Turp knows all this, too, because he served as a Member of the House of Commons in the 37th Parliament from 1997 to 2000.

Turp also denounced Trudeau’s prorogation as hypocritical, a fair characterization from a political standpoint given that Trudeau pledged in 2015 and 2017 not to engage in tactical prorogations, yet did precisely that in 2020. But from a constitutional standpoint, it posed no problems and, I would argue, amounts to a legitimate political tactic to pause parliamentary committees and the investigation of the WE Scandal. And from a practical standpoint, even if this prorogation had not also halted an investigation into the WE Scandal, the exigencies of the pandemic made a 2nd session of the 43rd Parliament and a new Speech from the Throne outlining measures to combat the spread of COVID-19 entirely appropriate. If anything, a prorogation after the House rose in June would have worked best.

Much to my surprise, the anti-monarchist bowtie-wearing secessionist concluded his opening remarks by transforming himself into a Good Colonial appealing to the sages in London for guidance. Turp made the shameless and unironic assertion that Canada should slavishly copy British jurisprudence and jettison our own – nothing better showcases Canada’s sovereignty that that, after all – and insisted that the British Supreme Court’s ruling in Miller 2 last year “should influence the course of things in Canada.” (On the contrary, the British Supreme Court should have drawn the lesson from the Supreme Court of Canada’s Patriation Reference and not interfered in the exercise of an executive prerogative, but I digress). Turp’s ridiculous and cynical conclusion rather reminds me of how Rene Levesque as Premier of Quebec in 1981 appealed directly to London to over-ride Canadian sovereignty. Levesque wrote a letter to Prime Minister Margaret Thatcher and asked that Her Majesty’s Government disregard Canada’s request and consent under section 4 of the Statute of Westminster (made by a Canadian Order-in-Council) that the Westminster Parliament amend the British North America Act and legislate for Canada one last time.[2] Quebec Secessionists have turned blatant intellectual inconsistency and legal chicanery into a forme d’art and specialise in having their cake and eating it, too. The theme of “hypocrisy” that Turp highlighted at the beginning of his opening statement applies aptly to his own words, which he surely does not sincerely believe.

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Notes

[1] James W.J. Bowden “1896: ‘Tu Perds’”, The Dorchester Review 9, no. 2 (Winter 2019): 31-42; James W.J. Bowden, “Canada’s Legal-Constitutional Continuity, 1791-1867,” Journal of Parliamentary and Political Law 14, no. 3 (2020): forthcoming.

[2] Barry L. Strayer, Canada’s Constitutional Revolution (Edmonton: University of Alberta Press, 2013), 208-209.

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. 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 PROC Examines the Retroactive Prorogation Rationale After All

  1. Donald Bur says:

    Excellent article.

    I would only disagree about your comment comparing Miller 2 with the Patriation Reference. Miller 2 showed us that the cabinet executive only really exercises authority on behalf of Parliament, and the principle rule should be that the Queen acts on the advice of Parliament. When the executive and Parliament differ, as was the case with Miller 2, the Queen should not have been advised by the cabinet to prorogue Parliament because they really had no authority to do so. That should have been the case when Harper went to see the GG.

    The Patriation Reference was really about a different constitutional convention, one that didn’t involve the relationship between the executive cabinet and the legislative Parliament. Instead it involved the relationship between Canada and its provinces and territories. We had the same sort of situation in Miller 2, where the executive (this time on behalf of Canada) went to the Crown in the UK to get legislation, the 1982 Act, but this time the question was not whether the Canadian Crown was properly representing its legislative master in Parliament but whether the Crown was entitled to speak on behalf of Canada and most of the provinces or whether it had to have the authority from all of the provinces.

    Like

  2. P B says:

    Good article.

    I’ve often seen Professor Turp on Power and Politics… he really does seem like a narcissistic pedant. Anyway, people who wear bow ties should never be trusted.

    Like

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