Since 2015 or so, a segment of Canadian academics, the Privy Council Office in Ottawa and the various Executive Council Offices of the provinces, as well as the media, have decided to propagate a new, expansive, and mostly unfounded interpretation of the Caretaker Convention which holds that incumbent governments can do virtually nothing during an election. Prince Edward Island has joined the ranks of this movement as part of Premier King’s unscheduled but not exactly early election. He advised the Lieutenant Governor to dissolve the 66^th General Assembly on 6 March 2023 3 years, 11 months, and 8 days after the previous general election, instead of adhering to the fixed-date election scheduled by statute for Monday, 2 October 2023 – a date which would have forced the current assembly to last closer to four and half years instead of four.

The Government of Prince Edward Island issued a public notice the following day on 7 March 2023 in what reads like a summary from guidelines on the caretaker convention probably produced by the Executive Council Office in Charlottetown:

A general election has been called in Prince Edward Island for April 3, 2023.

Throughout the election period, government services will remain available as always, but advertising and communications activities, and updates to our website, will be limited.

This includes web content and social media updates.

Paid advertisements, including print, digital and broadcast, will be limited unless required for public health and safety matters, general public information, or required by law.

Other communications activities – such as news releases, statements, consultations – will also be limited.[1]

As of 20 March, the Government of Prince Edward Island has only issued two press releases, one on “Spring Weight Regulations” on the Island’s roads, and another on “Additional COVID-19 Booster Dose Guidance for Individuals at High Risk of Severe Illness.”

I’ve criticised before the CBC’s bizarre an incoherent insistence on referring to incumbent prime ministers and premiers as “leader of x party” because this misleading policy tricks readers into believing that the ministry dissolves along with the legislature for a general election. In reality, Premier King remains the premier throughout the election. But CBC News has taken its policy from 2019 to new absurdities in 2023 in an article from 16 March which includes this seemingly innocuous but profoundly false sentence: “On the campaign trail, PC party leader Dennis King said his previous government had been talking with the nurses union for over a year.”[2] I have emphasised the offending phrases.

In fact, there is no such thing as a “previous government” headed by Dennis King; there is only the current and incumbent King ministry which entered into office on 9 March 2019[3] and which will remain in office up until the moment that Dennis King tenders his resignation as Premier to the Lieutenant Governor. In Canada, the tenure of the Premier determines the tenure of the ministry as a whole, and a ministry ends only when a Premier either resigns, is dismissed by the Governor, or dies in office. A ministry ultimately needs to command the confidence of a majority in the legislative assembly, but the duration of any given legislature does not determine the duration of the ministry per se. For instance, a ministry could last only a few weeks, like that of Liz “I’m a fighter, not a quitter” Truss in the United Kingdom in September and October 2022, or a ministry can span across several consecutive parliaments, as Justin Trudeau’s has done from 4 November 2015 to present and thus throughout the 42^nd, 43^rd, and 44^th Parliaments. I have raised the ire of journalists over the years (especially this these columns in 2016!) by pointing out their mistakes and factual errors on these matters, which tends to raise both their individual ire and provoke a collective security pact amongst them because journalism as a trade regards itself as above all criticism and has no sense of humour about itself. But this is not merely a matter of semantics and pedantry. You cannot on the one hand describe a ministry currently and continuously in office since 9 March 2019 as a “previous government” and then on the other hand claim to report the facts. Peddling a non-existent “previous government” is simply factually incorrect and therefore profoundly misleading.

Premier King has also put forth some dubious constitutional interpretations with respect to the ongoing negotiations for the Island’s nurses, which have already lasted two years, according to the CBC. He said on 16 March that the caretaker convention obliges the Government of Prince Edward Island to halt all negotiations entirely.

“I think that whenever an election takes place, there is a certain pause in terms of government activities …. I don’t think this is the first time in the history of P.E.I. that we’ve had an election where we’ve had to pause some of our negotiations or other conversations, but we’d be prepared to pick that up right away.”[4]

Health Prince Edward Island added this witty rejoinder, as quoted by CBC News:

“Health P.E.I. is bound by the caretaker government policy and cannot engage in bargaining that could bind the new government. This has been advised to us by multiple sources, including government of P.E.I. officials and our legal counsel.”

This claim is supported neither by precedent nor by common sense. Incumbent caretaker ministries should avoid finalising contracts during the election, but this does not mean that they must halt negotiations altogether, particularly those which have already lasted two years. Indeed, the purest technocratic interpretation of the Caretaker Convention would look something like Newton’s First Law of Motion: as an object continues in its current state unless another force acts upon it, so an incumbent government should avoid undertaking new policies and finalising decisions, but should also, logically, continue along its current trajectory and thus continue doing in the caretaker period what it had been doing before the caretaker period. In other words, the King ministry should, if anything, continue negotiations with the union representing nurses because halting the negotiations altogether changes the course of the ship of state more and represents more of a radical departure than continuing them.

The late 20th century at the federal level offers two contradictory precedents. In 1979, Joe Clark opted not to finalise a contract which would have committed the Government of Canada to buying F-18s; his Progressive Conservatives lost that election to the resurgent Liberals led by Pierre Trudeau, whose second ministry decided to finalise the contract in 1980. The Clark ministry did not prevent the Government of Canada from continuing negotiations with McDonnell-Douglas; Prime Minister Clark merely decided that his tenuous caretaker government, which had expressly lost the confidence of the House of Commons, should not make a final commitment one way or the other and simply deferred the decision by a few months. In a contrasting example which has since evolved into a negative precedent — what not to do — Kim Campbell finalised a contract to privatise two terminals at Pearson International Airport in Toronto during the writ in 1993, the timing of which did not universally raise the ire of scholars in the 1990s as it would now but the content of which did provoke controversy. (This is the opposite of what would probably happen today). No Prime Minister would follow Campbell’s example today of finalising an important and controversial contract during an election, but this does not mean that no premier or prime minister today should prorogue ongoing negotiations, especially one pertaining to a core function of the State like healthcare.

We have contorted the Caretaker Convention beyond recognition here. We have pushed beyond the entirely sensible and readily defensible proposition that incumbent ministries should not finalise contracts during the writ to the unreasonable premise that an incumbent ministry should not even continue negotiations already two years old during an election. Incumbent ministries failed to take responsibility as Ministers of the Crown for routine affairs of State, and they also refuse to rein in the paralytic risk aversion and the hyper-rectitude of civil services.

Since 2019 especially, this new, ever-expanding application of the Caretaker Convention has firmly entrenched itself all across Canada with remarkable rapidity and rigidity. The Caretaker Convention has gobbled up huge swathes of time – the writ, the “pre-writ” of 30 to 90 days before fixed-date elections, and a nebulous post-writ which remains deeply ambiguous in minority parliaments – and has annexed most areas of activity and now lays claim to most things that governments do. In August 2019, I demonstrated how the Legislature of Manitoba and the Parliament of Canada defined a pre-writ in statute which depends on fixed-date election laws and how civil services have, in turn, layer executive policies expanding the duration of the Caretaker Convention on top of these statutory pre-writ periods. Phil Lagassé dubbed this layering “conventioncreep” (in an analogy to missioncreep), because the Caretaker Convention can now persist for up to four months pre-writ, writ, and post-writ, whereas it would only have existed in the post-writ even 20 years ago. As Lyle Skinner and I demonstrated in our piece on Newfoundland and Labrador’s election of 2019, the ambiguity of the post-writ has led incumbent premiers to portray post-election cabinet shuffles as getingt themselves “re-appointed” to an office which they never stopped holding as a means of cutting short the caretaker period before a new minority legislature meets and pronounces its confidence, or want of confidence, in that incumbent ministry.[5] Worse still, all this has happened with little to no public debate and apparently through the technocratic will federal and provincial and territorial civil services themselves rather than at the democratic initiative of duly appointed Ministers of the Crown.

My colleague David Brock and I have co-written another piece (which will, we hope, appear in print later this year) where we offer some possible explanations to explain this trend. But it began in earnest in 2015 when the Privy Council Office – egged on by a certain faction of scholars – started making its Guidelines on the caretaker convention public. Far from simply describing the caretaker convention, as the proponents of these guidelines and cabinet ministers claimed, officialising constitutional conventions (as Nick MacDonald and I called this process back in 2012)[6] has altered them in a political analogy to the Observer Effect in particle physics: you change what you measure. In this case, multiple federal, provincial, and territorial elections over the last eight years leave little doubt that we have prescribed more than what we originally set out to describe and have encouraged the caretaker convention to annex new territories.

Some vague but unchallenged notion that continuously expanding the breadth and depth of the Caretaker Convention without any debate in legislative assemblies and the House of Commons and without even much direction from Ministers of the Crown themselves is somehow more democratic and legitimate has taken hold of Canada’s political class, propelled by the strange synergy between risk-averse civil servants and premiers and cabinet ministers reluctant to assert their own authority as ministers of the Crown. That which is pedantic, risk averse, and technocratic has replaced that which is sensible, necessary and proper, and democratic.

Similar Posts:

• Prince Edward Island Holds Third Consecutive Early Election in Defiance of Fixed-Date Election Law (March 2023)
• Extreme Risk Aversion: The Caretaker Convention in 2021 (August 2021)
• The Over-Zealous Caretakers of Newfoundland Labrador in 2021 (March 2021)
• Justin Trudeau Remains Prime Minister But Also Subject to the Caretaker Convention (October 2019)
• The Over-Zealous Caretakers of the 2019 Election (October 2019)
• The Caretaker Convention and the Appointment of Supreme Court Justices During Elections: 2015 vs 2019 (September 2019)
• The Caretaker Convention in 2019 (September 2019)
• Manitoba’s Early Election Expands the Caretaker Convention (August 2019)
• How Dwight Ball’s “New Government” Distorted the Caretaker Convention (August 2019)
• The Caretaker Convention in Action in British Columbia (July 2017)
• The Evolution of the Caretaker Convention in Canada (January 2012)
• The Development of the Caretaker Convention (September 2011)
• Guidelines on the Caretaker Convention (August 2011)

Notes

[1] Government of Prince Edward Island, News: Public Notice, 7 March 2023.

[2] Maggie Brown, “P.E.I. Nurses, Without a Contract for 2 Years, See Further Delays Because of Election,” CBC News, 16 March 2023

[3] Government of Prince Edward Island, News Releases, “Prince Edward Island Premier and New Cabinet Sworn In Today,” 9 May 2019.

[4] Maggie Brown, “P.E.I. Nurses, Without a Contract for 2 Years, See Further Delays Because of Election,” CBC News, 16 March 2023.

[5] J.W.J. Bowden and Lyle Skinner, “‘There’s Nothing Strategic About This: How Dwight Ball’s ‘New Government’ Distorted the Caretaker Convention in Newfoundland & Labrador in 2019,” Journal of Parliamentary and Political Law 15, no. 2 (2021): 211-235.

[6] James W.J. Bowden and Nicholas A. MacDonald, “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia,” Journal of Parliamentary and Political Law 6, no 2 (August 2012): 365-400.