Strategic pause or political play? Analyzing prorogation's role in government relations

Whether it is trolling or truth on tariffs, Donald Trump will be sworn in as President on Monday. But if there was ever a time that Canada’s Parliament should be actively debating the potential threat and the growing national unity questions that are picking up steam, isn’t it now? In the realm of government relations, understanding the nuances of political maneuvers like prorogation can be crucial for public relations professionals. These actions not only shape the legislative landscape but can also influence public perception and stakeholder engagement strategies.

Providing his expert analysis is Kevin Macintosh, Senior Vice-President in our Ottawa office and a constitutional law scholar holding an LLM from Osgoode Hall Law School.

Prorogation in context: A historical perspective

In 2008, Prime Minister Stephen Harper asked the Governor General to prorogue Parliament. Critics claimed Harper was using prorogation to avoid an upcoming confidence vote in the House. But supporters saw his request as perfectly reasonable in the face of a plan by the Opposition to team up in coalition to rest the reins of power from the Harper Conservatives. In the end, the Governor General granted the Prime Minister’s request, siding with constitutional convention (constitutional “rules” dating to the incarnation of the British North America Act, 1867) that the Governor General delivers on the advice of the executive branch. Notably, conventions are not laws, and they are not enforced by the courts.

Balancing tradition and political strategy

Last week Prime Minister Trudeau announced that he would be resigning as Liberal Party leader and, soon thereafter, as prime minister (PM) once a new leader is in place. He then advised that earlier in the morning he asked the governor general to prorogue Parliament, his justification that the parliamentary session should end to give the Liberal Party time and space to select a new leader.

Notwithstanding the tradition of following convention, might there be an argument that this prorogation request went well beyond convention and firmly into the world of partisan party politics? Afterall, Trudeau’s rationale was that time was needed away from Parliament to sort out who will be the next leader of the Liberal Party–which, incidentally, in this Parliament, has nothing to do with the majority of members of Parliament (MP).

Beyond the written text of the Constitution Act, 1867 are unwritten constitutional principles. These are not just wishful thinking platitudes. Unwritten constitutional principles were all but enshrined following the Supreme Court of Canada’s judgement in the Quebec Secession Reference (1998). The Court reminded that unwritten principles are the implied and unstated assumptions of the Constitution. The highest court in the country also reminded us that Canada’s Constitution has an internal architecture, and that all the individual elements of the Constitution are linked together. Unwritten principles are as much a part of the Constitution as any of its written provisions. At least two unwritten principles seem to have application to Trudeau’s prorogation:

1. The unwritten principle of democracy. As stated in the Secession Reference, democracy is a fundamental value in the Constitution that gives people the right to choose who governs them. Recall that many MP’s prior to Trudeau’s announcement last week were looking forward to the opening of Parliament later this month so they could vote (confidence) on the future of the Trudeau government.

2. The unwritten principle of parliamentary sovereignty. It is hard to argue that if the PM’s prorogation does anything, it neuters parliamentary sovereignty for the next three months.

Arguably, Prime Minister Harper’s request to prorogue Parliament had far more to do with the affairs of Parliament and what was an organized Opposition plan to replace the government of the day and skip the messy politics of an election vs. Prime Minister Trudeau’s (and presumably the Liberal Party’s) motivation to buy time to find a new leader, putting parliamentary affairs on hold for three months after the Prime Minister was backed into a corner by growing caucus rancor around his continued leadership.

Implications for government relations and Canada-U.S. dynamics

Granted, none of the foregoing will change a thing about the suspended status of Canada’s Parliament. But at a critical time in Canada-U.S. Relations, Americans are installing a new President and Congress is hard at work. Canada’s Parliament sits in limbo, and the governing party tries to sort out who will lead. Some could also argue that partisan politics is getting a free pass under the guise of constitutional convention.

Our team of experts will be monitoring this issue closely, including the leadership race and the election that will likely follow. Contact Kevin Macintosh for any questions on the intersection of constitutional law and government affairs.