Extreme Risk Aversion: The Caretaker Convention in 2021

The Caretaker Array in Star Trek: Voyager

Prime Minister Trudeau advised Governor General Mary Simon to dissolve the 43rd Parliament of Canada and issue the writs of election on 15 August 2021. The Privy Council Office marked the occasion by releasing another edition of its Guidelines on the Conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During an Election – naturally, in HTML alone, and using the same URL as the earlier editions from 2019 and 2015, now over-ridden and consigned to Internet oblivion. This document contains guidance on the Caretaker Convention.

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Posted in Caretaker Convention & Government Formation | 4 Comments

Recalling a Parliament Already Dissolved? Not in Canada: the 43rd Parliament Is Dead


On 15 August 2021, Prime Minister Boris Johnson requested that the Speaker recall the House of Commons from its summer recess early so that MPs could hold an emergency debate over the fallout of the American withdrawal from Afghanistan, which the Taliban took as an opportunity to recapture Kabul and to install themselves as the de facto government once more.[1] The House of Commons would originally have reconvened on 6 September under its regular sitting calendar but met instead on 18 August.[2] The Lords Speaker also recalled the House of Lords for the same day. The British House of Commons and House of Lords could meet to discuss the British response and efforts to evacuate their diplomatic personnel and refugees because the two houses had merely adjourned for their regular summer recess. The British House of Commons has cut short its adjournments in such a manner on 34 occasions since 1948.[3]

In Canada on 15 August 2021, Governor General Mary Simon dissolved the 43rd Parliament of Canada and issued the writs of election on Prime Minister Trudeau’s advice. Perhaps drawing inspiration from across the Atlantic, Annamie Paul, leader of the Green Paper, argued on Monday, 16 August that the Parliament of Canada should be recalled so that MPs can hold an emergency debate on the aftermath of the American withdrawal from Afghanistan. The Green Party’s statement reads:

OTTAWA – The Green Party is calling on the Prime Minister to ask the Governor General to reconvene Parliament to debate Canada’s response to the foreign policy emergency unfolding in Afghanistan, and to ensure that Canada remains accountable for the safety of the Afghan nationals who assisted our mission and who are now desperate to flee the country. 

“As of yesterday, the Taliban had captured all major cities in Afghanistan, including the capital Kabul.” said Ms. Paul. “The Taliban’s advance has been swift and merciless; we are witnessing the complete recapture of Afghanistan by the Taliban. […]

“Parliament has been dissolved and therefore cannot debate this emergency situation and determine how Canada can do its utmost to protect Afghan civilians and ensure global security in honour of the sacrifice of our military who served in Afghanistan. This is yet one more agonising item to add to the list of reasons that this national election should not have been called at this time.”[4]

The first sentence of the last paragraph of the Green Party’s statement sums it up: “Parliament has been dissolved and therefore cannot debate this emergency”. In Canada, a dissolved parliament cannot be recalled. But in other jurisdictions, death is not the end.

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Posted in Crown (Powers and Office), Dissolution | 4 Comments

Why Justin Trudeau’s Snap Election in 2021 Does Not Break the Fixed-Date Elections Law

The Signs Pointing to a Snap Election, June to August 2021

Since at least mid-June, the media had treated an early election as a fait accompli, and politicians and political parties began acting as if the writ had already begun by early July. On 15 June, several MPs in the House of Commons delivered their “Farewell Speeches”, including Jack Harris (New Democratic Member for St. John’s East), Simon Marcil (Blocist Member for Mirabel), and Kate Young (Liberal Member for London West).[1]The very same day, Elections Canada announced that it could administer a general election during the pandemic without the statutory amendments contemplated by Parliament which ultimately died on the Order Paper on 15 August.[2]On 22 June, Prime Minister Trudeau denounced the 43rd Parliament for its “obstructionism and toxicity,” not the sort of thing that one would say in advance of a productive fall sitting.[3]

Justin Trudeau then shaved off his beard and cropped off his pandemic locks around Canada Day.[4] The rest of July then saw a plethora of campaign-style announcements and joint press conferences with willing mayors and premiers; Trudeau appeared alongside Naheed Nenshi, Mayor of Calgary, on 7 July to pledge “Build Back Better” funding to expand the city’s commuter rail,[5] and he held a joint press conference with John Horgan, the New Democratic Premier of British Columbia, the next day to announce funding for childcare.[6] In a marked contrast to the last snap federal election in 2008, the CBC supported the prospect of an early election so strongly that when Jagmeet Singh appeared on Power & Politics on 11 August to implore the Prime Minister to let the current 43rd Parliament meet for its fall sitting in September, the reporter tried to goad Singh three times to embracing the inevitable early election as an opportunity to convince voters that the New Democrats can best govern Canada at the end of this pandemic.[7]

Ever mindful of new political developments, Dr. Theresa Tam, Canada’s top public health official, declared a potential snap election during the onset of the fourth wave of the pandemic safe on 5 August.[8] (The previous week, she argued that Canada finds itself “in a slightly precarious moment” until 80% of Canadians are vaccinated).[9] The Liberals briefed the press on 12 August that the Prime Minister would kick off the election on Sunday[10], and Justin Trudeau, with wife and children in tow, dutifully paid an anti-climactic visit to Rideau Hall and Her Excellency Mary Simon to tender his constitutional advice to dissolve the 43rd Parliament for a general election on 15 August.[11] The Chief Electoral Officer, Stéphane Perrault, told the Procedure and House Affairs Committee in June that Elections Canada would prefer a longer writ closer to the 50-day maximum rather than the 36-day minimum, because of the logistical challenges of administering an election during a pandemic.[12] But Trudeau opted for the minimum of 36 days and thus a polling day of 20 September, perhaps because, as Paul Martin and Stephen Harper could both corroborate, the longer elections over the last 15 years have not benefited the incumbent.  

What Canada’s Fixed-Date Elections Do and Do Not

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Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections | 3 Comments

Putting the Personal above the Factual: Errol Mendes on Early Dissolution and Fixed-Date Election Laws in 2008 vs in 2021


I have chronicled several examples of scholarly inconsistency between how some academics cover and write about Harper versus Trudeau, The four most notable examples come down to the following: tactical prorogation, contempt of parliament, the caretaker convention and the appointment of Supreme Court Justices just before the writ, and, finally, on calling snap elections when the House of Commons has not first withdrawn its confidence from the government. I documented last year how the same scholars who launched incessant vituperations over Harper’s tactical prorogations in 2008 and 2009 remained silent or became far more measured and reasonable in response to Trudeau’s tactical prorogation in 2020. Some of the disparity in the coverage of Trudeau’s prorogation versus Harper’s and the House of Commons declaring the Trudeau government in contempt of parliament in 2021 versus the House of Commons declaring the Harper government in contempt of parliament in 2011 undoubtedly does stem from our collective fatigue over the pandemic. I myself have largely tuned out of much of the news, and I quit Twitter around 12 months ago. This calculus might even factor into some of the coverage of the upcoming early election in 2021 versus that of 2008. However, this factor most certainly does not apply to the control group in our sample: the hyperventilating over the Caretaker Convention and the appointment of justices to the Supreme Court in 2015 versus in 2019 occurred half a year before the pandemic disrupted all our lives.

With an early dissolution and general election bearing down on us in 2021, I find revisiting the similar early election of 2008 and comparing the press coverage then and now instructive and intriguing. Here I will use one particular and overt about-face as an example to illustrate the perils when partisan or ideological thinking replaces a neutral and reasonable examination of the facts, in the form of Errol Mendes, Professor of Law at the University of Ottawa.

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Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections, Reform | 1 Comment

Peter H. Russell Now Agrees With Me: What Happens When a Governor General Rejects a Prime Minister’s Constitutional Advice

Phil Lagassé took this action shot on 28 October 2013, where Peter Russell and I talk at the Regina International Airport

For the last eight years or so, I have stated in numerous blog posts, presentations at conferences, my thesis, and several journal articles the basic precepts of the established constitutional position of the governors and prime ministers under Responsible Government. Namely, governors can only reject a premier’s constitutional advice under exceptional circumstances precisely because of the exceptional consequences that this exercise of discretion causes: that the prime minister whose advice the governor rejected must resign or be dismissed from office, and that the governor must then appoint a new ministry which can take responsibility for the dismissal of its predecessor and command the confidence of the elected assembly.

Contrary to what the reactions of most academics and journalists in the late 2000s and early 2010s would suggest, this viewpoint remained the bog standard and universally accepted formulation of Responsible Government until well into the 20th century. In fact, I derived – or perhaps, simply re-stated – this argument from a long line of Canadian constitutional scholars active from the 1840s to the 1990s, from Alpheus Todd and R. Macgregor Dawson to Eugene Forsey, and Graham Eglington[1], and various real historical precedents from the 19th and 20th centuries where precisely this series of events happened. These include the Double Shuffle in the Province of Canada in 1858, where George Brown resigned after Governor Head rejected his advice to dissolve the legislature,[2]the instance where Prime Minister Sir Charles Tupper resigned in 1896 after Governor General Lord Aberdeen refused to implement his constitutional advice to appoint judges and summon senators,[3]and the famous King-Byng Affair of 1926, where William Lyon Mackenzie King resigned as Prime Minister because Governor General Lord Byng rejected his constitutional advice to dissolve parliament.[4]

To make matters even easier, the official written correspondence between the Governor and Prime Minister makes clear in all three cases that the Prime Minister resigned because the Governor rejected his constitutional advice.  

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Posted in Crown (Powers and Office), Dissolution, Governor's Discretion, Prorogation | 3 Comments