The Prime Minister and Prorogation: Time for a New SCC Reference?

It seems that “prorogue” is the word on Canadians’ minds these days. Though I am still not sure how to pronounce it, I am amazed that constitutional law, an unpopular subject even among law students, is currently water cooler material. The ongoing Canadian political crisis has already been the subject of a previous post, in which Jeremy Barretto contemplated the potential implications of this crisis upon the appointment of Justice Thomas Cromwell to the Supreme Court of Canada. I would like to discuss the same topic, but from the perspective of prorogation; specifically, I will explore whether Prime Minister Stephen Harper’s controversial decision to prorogue Parliament may eventually involve the Supreme Court.

After the Finance Minister delivered his fiscal update, revealing that the Conservative Party advocated cuts to the public funding of political parties but did not provide any financial stimulus package, a Liberal-NDP coalition was formed. Parliament was set to vote on a Liberal non-confidence motion on December 8; had the Conservative government lost that vote, the coalition would have asked Governor General Michaelle Jean to approve its proposed government. Jean could have either accepted the coalition’s plan or required another election.

Ultimately, she did not have to make this choice. Prior to the non-confidence vote, Harper requested that Jean suspend, or prorogue, Parliament until the end of January. She granted the Prime Minister’s request, and the federal budget is now set to be delivered the day after Parliament’s resumption. Only then will Harper’s government once more be at risk, since the tabling of a money bill (such as the budget) constitutes a confidence vote.

The political events of recent weeks are unprecedented, and not only because they have actually made the mainstream American media. There are two main debates that have captured popular attention. Firstly, Jean’s approval of the prorogation request has renewed public interest in the role of the Governor General within the Canadian parliamentary regime. This interest has mostly been framed as criticism of Jean’s decision; one common refrain is that the requirement that the Governor General’s approve of the Prime Minister’s request is undemocratic, as the Governor General was not elected.

Though this practice may appear undemocratic, it is a sturdy and well-developed constitutional convention that is nearly always followed to the letter. The Governors General is expected to take the advice of the sitting Prime Minister, and they nearly always do; there are only two occasions in Canadian history, in 1896 and 1926, when this convention has not been followed. Refusal of the Prime Minister is sufficiently unprecedented that the 1926 event has been characterized as one of the most controversial uses of a Governor General’s reserve powers.

The constitutional crisis of 1926 is commonly referred to as the King-Byng Affair, which occurred when the Governor General, Lord Byng, refused a request by then Prime Minister William Lyon Mackenzie King, to dissolve Parliament and call a general election. Lord Byng’s refusal was followed by an uproar because it flew in the face of this established convention. In fact, the King-Byng Affair was notable enough to provoke the negotiations that led to the Statute of Westminster, 1931, a document that marked the final step in Canada’s legislative independence from the United Kingdom.

It is clear from the extraordinary nature of Lord Byng’s refusal that the Governor General is expected to approve of what the sitting Prime Minister asks. The firmness of this convention illustrates that Jean did not really have a choice on the question of prorogation. While critics argue that it is undemocratic to require an unelected Governor General to make the final decision, it is nearly always the case that the Governor General takes the Prime Minister’s advice. In practice, the elected Prime Minister makes the decision, and the Governor General acquiesces to his or her demands.

The second issue (and in my opinion, the more controversial of the two), contemplates the legitimacy of Harper’s prorogation request. Setting aside the question of whether the Governor General is even allowed to disagree with the Prime Minister, what if the Prime Minister’s request in itself is problematic? A brief perusal of constitutional scholarship indicates that Harper’s manoeuvre is unprecedented and certainly controversial.

Leading up to Harper’s meeting with Jean on December 4, many speculated about the ways in which the coalition’s threat could be defused. Jean was faced with three potential solutions: dissolution, prorogation, or asking for Harper’s resignation. On the subject of prorogation, constitutional scholar Ned Franks of Queen’s University suggested that Jean could agree to prorogue Parliament with conditions. The government could manage day-to-day affairs until it was reconvened, much like the way that governments operate during an election campaign. This type of prorogued Parliament would necessitate that the Governor General not approve orders-in-council requiring cabinet decisions; as such, the government would not be able to appoint judges or ambassadors, negotiate treaties, or undertake any major policy initiatives, because they would all require Jean’s approval.

In an article from The Globe and Mail, written mere days before Jean’s decision, Canadian constitutional historian Bob Beal expressed concern about the legitimacy of a prorogation request under the circumstances. He stated that if Harper were to ask for, and receive, a prorogation, questions would be raised “that have never been raised before.” This is because, as Beal noted, prorogations are usually fairly routine. While a Governor General has never refused a Prime Minister’s request for prorogation or put conditions on it, the Governor General has never had to: no Prime Minister has ever requested prorogation when he faced an imminent confidence vote.

Prior to Harper’s, the most troublesome prorogation request was made in 1873. In that year, John A. Macdonald asked the Governor General Lord Dufferin to prorogue parliament in order to stop the work of a committee investigating Macdonald’s involvement in the Pacific Scandal, involving allegations that Macdonald’s Conservative government was taking bribes. Lord Dufferin approved of Macdonald’s prorogation request, but the prorogue was limited to a period of ten weeks. When Parliament returned, Macdonald was censured and promptly resigned.

But Macdonald’s request was not made in the shadow of an impending non-confidence motion. Beal opined that a request like Harper’s “could be seen as asking the Governor General to interfere to the extent of cancelling or delaying the exercise of the most basic right members of the House have, to express confidence or non-confidence in a government.” In fact, the day after Beal’s article was published, the leader of the Liberal Party, Stephane Dion, asked the Governor General to refuse to grant prorogation for this very reason. In Dion’s view, it would be an abuse of power to deny the right of the legislature to give or withhold its confidence in the government.

After a closed-door meeting at Rideau Hall on December 4, it was announced that Jean had granted Harper’s request for a prorogation until January 26, 2009. There was no indication that the prorogation came with any limitations on Harper’s prime ministerial abilities. Given that prorogations can legally last up to one year, this prorogation is set to be relatively short. Former Governor General and NDP politician Edward Schreyer has stated that a short prorogation might be reasonable as long as it wasn’t used “as a means of evading, avoiding, and thwarting the expression of the parliamentary will” by avoiding a confidence vote. However, given the formation of the Liberal-NDP coalition and the non-confidence motion looming within a week of Harper’s request, it overwhelmingly appears that Harper sought prorogation specifically for this purpose.

Legitimate concerns have been expressed over what Harper has asked of the Governor General. The most compelling, in my view, is that Jean’s approval of the prorogation request sets a dangerous precedent in which a Prime Minister may seek prorogation or dissolution when confronting a political vote of non-confidence. In addition to the constitutional uniqueness of this crisis, Harper’s political opponents have spoken out against the perceived misuse of his prime ministerial position. These circumstances set the stage for the disgruntled Cabinet to potentially refer a question to the Supreme Court of Canada.

The federal government has such referral power, and if the referred question is of national importance, the SCC will give its opinion on the matter. While many Supreme Court references specifically consider the constitutionality of legislation (for example, in Re: Anti-Inflation Act, [1976] 2 SCR 373, the court has more recently been asked broader questions, such as the legality of unilateral secession of Quebec from Canada in the Reference re Secession of Quebec, [1998] 2 SCR 217. Though federal references are not common, neither is a constitutional crisis of this magnitude. In the near future, the Supreme Court may be asked to clarify the limits on the Prime Minister’s prorogation power.