The Nova Scotian Strain: Tactical Prorogation in Canada’s Ocean Playground


Prorogation by Speech from the Throne Qualifies as a “Sitting”

On 18 December 2020, prorogation once again provoked some controversy in Canada – but this time for a different reason which might surprise you.

Section 5 of the Constitution Act, 1982 guarantees that “There shall be a sitting of Parliament and of each legislature at least once every twelve months.” The Constitution of Canada as supreme law sets the minimum baseline of a sitting once at least every twelve months. Only a constitutional amendment promulgated under the General Amending Procedure could raise the threshold so that legislative bodies meet less frequently – say, every twenty-four months instead of twelve – but nothing precludes the federal parliament and provincial and territorial legislatures from passing laws that lower the threshold and require more than one sitting each calendar year. So far, only Prince Edward Island and Nova Scotia have opted to do so.

Nova Scotia’s House of Assembly Act clearly states that the House of Assembly must meet twice annually in a sitting between 1 January and 1 June and again in second sitting between 1 September and 31 December.

Duration and sittings of House

8(1) The House shall continue for five years from the expiration of forty days next after the issuing of writs for any general election unless sooner dissolved, and no longer.

(2) In each calendar year beginning in 1994, there shall be at least one sitting of the House during the six-month period beginning on the first day of January and one sitting of the House during the four-month period ending the thirty-first day of December.

3) Nothing in subsection (2) prevents the House from sitting at a time other than the periods set out in subsection (2).

(4) Subsection (2) does not apply during the six months immediately following ordinary polling day of a general election.[1]

The House of Assembly last sat and adjourned itself on 10 March 2020, just before the lockdowns and anti-COVID measures kicked in, after having conducted a normal spring sitting between January and March 2020.[2] Unique amongst the rest of the provinces and territories, the House of Assembly of Nova Scotia never met at all during the pandemic because of Premier McNeil’s fanatical devotion to maintaining the Atlantic Bubble and keeping Nova Scotia’s active cases at zero. But even MacNeil must obey the law and section 8(2) of the House of Assembly Act. He decided that rather than convening the assembly at some time between 1 September and 31 December, he would extract a fall sitting simply by advising the Lieutenant Governor to prorogue the 2nd session of the 63rd General Assembly by a Speech from the Throne on Friday, 18 December 2020.[3]

In the absence of section 8(2) of the House of Assembly Act, section 5 of the Constitution Act, 1982 would form the baseline of Nova Scotian law mandating an annual sitting of its legislature. In that case, Premier McNeil would probably not have undertaken to prorogue the session at all in December 2020, and the House of Assembly would simply have remained adjourned until it had to meet by 9 March 2021.

Premier McNeil stated upon prorogation in December 2020 that the House of Assembly would meet for dispatch of business on 16 February 2021 because the House of Assembly must meet once more between January and June 2021 for its first of two annual sittings. I anticipate that McNeil’s successor as Premier (the Nova Scotian Liberals are currently electing their new party leader, whom the Lieutenant Governor will then appoint as the next Premier) will once more opt for a short sitting and perfunctory session. The Lieutenant Governor will read a short Speech from the Throne, and the assembly might examine its Rules so that it can properly conduct its business remotely throughout the rest of the pandemic in 2021. But nothing substantive will occur; the new Premier will continue to make the case for Nova Scotian Exceptionalism and resign himself to the bare minimum under section 8(2) of the House of Assembly Act, despite the fact that the legislatures of all the other provinces and territories have managed to meet substantively throughout 2020.

McNeil has introduced a new kind of tactical prorogation, where the ceremony and Governor’s Speech from the Throne serves as a “sitting” that satisfies the constitutional and statutory requirements for sittings of a legislature. He did not prorogue to evade scrutiny per se or to halt a parliamentary committee’s investigation into government corruption; if anything, refusing to hold a proper fall sitting at all – in opposition to what every other province and territory has done – is what would constitute an attempt to evade scrutiny, not the prorogation. If McNeil’s decision were truly about prorogation and stemmed, for instance, from a desire to halt the work of a parliamentary committee because its work embarrassed the government or to delay a vote of non-confidence, then he would have opted to prorogue by proclamation rather than by a speech from the throne in the Assembly. Instead, McNeil needed to use prorogation as a tactical to satisfy section 8(2) of the House of Assembly Act and hold a second sitting in 2020. That said, given that the 2nd session had first convened on 6 September 2018 and lasted over two years, McNeil ought to have prorogued in December 2020 anyway so that the legislature could return with a new session the following spring.

In these respects, McNeil’s tactical use of prorogation to meeting a minimum sitting requirement best corresponds to what the wily and ghastly occultist William Lyon Mackenzie King did in 1940. During the Phoney War (after the Third Reich’s initial invasion of Poland in September 1939 but before the spring blitz of 1940 where the Nazis quickly conquered half of Europe), King decided to hold an impromptu 6th session of the 18th Parliament on 25 January 1940, which lasted only five hours and consisted of little more than a Speech from the Throne and an abortive debate on the Address-in-Reply,[4] so that he could satisfy the constitutional requirement of an annual session. King undertook this short session as an insurance policy so that he could have delayed recalling parliament again until 24 January 1941 if he found such delays necessary during the exigencies of war.[5] But the 18th Parliament had reached its maximum life in 1940 anyway, and the general federal election gave the Liberals another parliamentary majority. The 1st session of the 19th Parliament then met in May 1940 for a normal duration of a few months.

Interestingly, as one of my well-informed readers just pointed out, McNeil’s tactical use of prorogation to fulfill the second annual sitting of the assembly would have failed in the United Kingdom, because the British Supreme Court in its disastrous and politically motivated Miller 2 ruling declared in 2019 that proroguing the session by a speech from the Queen’s commissioners does not constitute a proceeding of parliament and that the executive instruments and speech were nothing more than scraps of paper. UPDATE, 3 February 2021: Nova Scotia’s Royal Gazette published today includes a proclamation extending the intersession from 16 February to 9 March, almost as if the Premier were hewing to the constitutional requirement in section 5 of the Constitution Act, 1982 and hedging his bets in case that the prorogation by speech from the throne did not count as a proceeding of parliament and the second annual sitting of the assembly. [6]

Conclusion: A Possible Avenue for Prorogation Reform

Nova Scotia’s House of Assembly Act provides one viable option for reforming prorogation and constraining how prime ministers and premiers can use it tactically: legislatures can simply pass statutes requiring something more than the single annual sitting under section 5 of the Constitution Act, 1982. A provincial or territorial legislature could even transfer the assembly’s sitting calendar from its Standing Orders or Rules to a proper statute law. Such a law would not prevent tactical prorogations outright, because it would not derogate from the authority of the Crown, but this kind of legislation would significantly constrain how prime ministers and premiers can undertake prorogation and, in turn, limit the duration of an intersession.

Of course, none of the proponents of prorogation reform in Canada has ever proposed this idea, because they are all fundamentally unserious and only want to gain notoriety for themselves rather than presenting realistic and substantive statutory amendments that could go a long way toward achieving their goal. Inserting a new section in the Standing Orders of the House of Commons mandating that the government must table a document at the start of a second or subsequent session, after the prorogation of the previous session has already taken place, is fundamentally unserious and frustratingly futile. Suggesting that we amend the Constitution of Canada to abolish the Crown’s authority over prorogation is fundamentally unserious. Asserting that we pass an unconstitutional statute or Standing Order that the prime minister can only advise the governor to prorogue parliament if and only if two-thirds of MPs agree to a motion “That this session of parliament be prorogued,” or something to that effect, is fundamentally unserious and betrays a blithe dismissal of our constitutional order. These erstwhile reformers never bothered to study the provincial and territorial statutes – because that would require reading primary sources, which puts a great burden upon political scientists and lawyers, most of whom no longer show an interest in adhering to such arcane and silly notions.

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Notes

[1] House of Assembly Act (Nova Scotia) R.S. (1992 Supplement), c.1, s.8

[2] Nova Scotia, House of Assembly, Hansard: Debates and Proceedings, 63rd General Assembly, 2nd Session, 20-79, Tuesday, 10 March 2020.

[3] Nova Scotia, House of Assembly, Hansard: Debates and Proceedings, 63rd General Assembly, 2nd Session, 20-80, Friday, 18 December 2020.

[4] Eugene Forsey, “The Crown and the Constitution,” chapter 3 in Freedom and Order: Collected Essays (McGill-Queen’s University Press, 1974), 42.

[5] Ibid.

[6] Nova Scotia, Royal Gazette Part I, volume 230, number 5, (Halifax: Queen’s Printer, 3 February 2021), 233.

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.

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