“Prorogation, I am told by sources at the highest level in Ottawa, is back on the table for the Liberals.”

On October 1st, former federal NDP leader Thomas Mulcair announced the very real threat of a prorogation by Prime Minister Trudeau. The latter has seen nosedives in his polling numbers long before the start of this Fall session.

In Canada, prorogation occurs when the Governor General, on the advice of the Prime Minister, suspends the current Parliamentary session without dissolving it. In doing so, every pending bill is dismissed, and a new agenda is put forth in the following session. Governments use this mechanism to introduce revised goals, outlined in the Throne Speech given at the opening of the new session.

Lately, though, prime ministers have been using this mechanism to stay in power. The first instance happened in 1873, when Macdonald, trying to elude his involvement in the Pacific Scandal, asked the then Governor General, Lord Dufferin, to prorogue Parliament. The latter signed off on his request. When the Parliament reconvened ten weeks later, multiple of his party’s MPs had resigned. Anticipating a motion of non-confidence, he resigned as well.

In 2008, former Premier Harper advised the then Governor General Jean to prorogue Parliament, raising questions on the democratic legitimacy of such a decision. Indeed, this demand was made following the written promise of a Liberal-NDP-Bloc coalition, which would have formed a new majority government, and thus replaced Harper’s Conservative government. The Governor General, partly bound by convention, approved Harper’s request. Conventions are rules and norms which regulate the behaviours of people who engage with the Constitution. These conventions, while not explicitly written within the Constitution, are often afforded the same status. Following the prorogation, the coalition fell through due to tensions with the separatist Bloc Québécois, which led to Harper’s government staying in power. 

Since then, this decision has been heavily criticized for being unconstitutional. Indeed, it is said to have transgressed the underlying principles of democracy and responsible government outlined in the Constitution. By convention, the government has to hold the confidence of the House of Commons. In other words, a majority of Members of Parliament in the House of Commons must support the executive government, also known as the Cabinet. The rationale behind this convention stems from the fact that the House of Commons is the sole democratic entity present in the Parliament, each riding electing its representative Member of Parliament. Harper’s Conservative government did not hold the confidence of the house when he asked for a prorogation, and so, as his act violated this convention, he should not have been able to keep his government. 

Following this crisis, the role of the Governor General has been endlessly questioned. Is it not its mandate, as a representative of the Crown, to act as a backstop in case of unconstitutional practice? The ambiguity comes from a clash of conventions between the principle of responsible government and the limited role of the Governor General. The latter must take the Prime Minister’s advice most of the time. This convention is also based on the underlying principle of democracy: if the Governor General were to make their own decision without listening to the Prime Minister, they would have total executive and legislative power. But what do you do when democracy can justify both conventions?

The answer lies in the role of the Governor General, which derives its power from the Crown. In fact, the main role of the representative of the Crown is to limit the power of the executive when it acts in an unconstitutional way. Since following Harper’s advice would clearly transgress the principle of responsible government, the Governor General had the obligation to deny that request.

In recent weeks, it is speculated that Trudeau might himself resort to this move, the second occurrence of a prorogation in his nine-year run. As a matter of fact, in 2020, he asked for a prorogation following the WE Charity scandal. While controversial, this was considered somewhat legitimate, since a clear motion of non-confidence was not threatening Trudeau’s government at the time.

This time, however, a prorogation of Parliament would be constitutionally questionable. Indeed, the Conservatives have already put forth two motions of non-confidence this Fall session, both of which have failed. Meanwhile, NDP leader Singh has pulled out of his prior alliance with the Liberals, opting to vote on a case-by-case basis. Since the Liberal government relies on NDP support to maintain the confidence of the House, this development has multiplied the threat of a successful non-confidence motion. Additionally, the Bloc Québécois has issued an ultimatum: if Trudeau does not give Royal Recommendation to Bill C-319, which proposes to increase the Old Age Security payout by 10%, they too will pull out of their alliance with the Liberals.

If a prorogation were granted to Trudeau, it would allow his government to avoid a motion of non-confidence, and remain in government until tensions subsided. Governor General Simon could, however, exercise her constitutional power to deny this, setting an important precedent to limit the executive’s growing power. Whether the Prime Minister will issue a prorogation request remains to be seen.

Edited by Catriona Hayes Morris

The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Science or the Political Science Students’ Association.

Featured image by Enric