The Government's legislative agenda has largely ground to a halt by ongoing debate on the privilege motion initiated by the Conservatives 1(with a second Conservative-initiated privilege motion waiting in the wings on a different matter).
Meanwhile, the Liberals continue to find themselves 15-20 plus points behind the Conservatives in the national polls (including one poll, in which they found themselves for the first time since 2015 in third place nationally, outside of Quebec, trailing the New Democratic Party). With no signs of imminent rebound of their electoral prospects, and, as we had discussed in our last bulletin, with more confidence votes anticipated this fall, the Liberals' ability to maintain the confidence of the House of Commons has never been more imperiled.
Against this backdrop and with the Liberals searching for a refresh in the eyes of the electorate, it comes as no surprise that there is heightened speculation that the Prime Minister may not only seek to infuse new blood into the life of his government by shuffling his Cabinet, but also prorogue Parliament in the coming weeks or months for the first time in this Parliament.
This bulletin provides an overview of the concept of prorogation, its implications in the current Canadian political context and its impact on Government bills.
Background
Instead of dissolving Parliament and calling an election, the Prime Minister can prorogue Parliament in order to achieve a reset of the Government's agenda through a new speech from the throne.
Many Canadians will remember the heightened discussions of prorogation in late 2008. Amidst a hurriedly organized alliance between the three opposition parties and a severe economic downturn, Prime Minister Harper avoided an impending confidence vote in his government by requesting that the Governor General prorogue Parliament. While prorogation in itself is not exceptional, this would have been the first time since the 1800s that prorogation would be used by a sitting Canadian Prime Minister to avoid the fall of his government. Amidst much intrigue as to what she would decide to do, the Governor General ultimately accepted Prime Minister Harper's request and ended the 13-day-old Parliamentary session, less than two months after the previous general election.
Parliament was most recently prorogued by Prime Minister Trudeau in August 2020, during the last Parliament, which put an end to the multiple Parliamentary committee studies involving the WE Charity student volunteer grant controversy, as well as sought to enable the Government to refresh its priorities in the aftermath of the first wave of the COVID pandemic. Within 20 sitting days following this prorogation, the Government tabled a document in the House of Commons outlining their rationale for having prorogued – this was required pursuant to a 2017 change to the Standing Orders.
What is Prorogation?
Prorogation of Parliament is a royal prerogative of the Crown, exercised by the Governor General on the advice of the Prime Minister (or by the Lieutenant Governor on advice of the Premier provincially). Both the procedure and practice surrounding the power to prorogue Parliament are not explicitly laid out in either the Constitution or in federal statute. It is accomplished by way of a special ceremony in the Senate Chamber or by issuing a proclamation published in the Canada Gazette. Both the Senate and the House of Commons stand prorogued (discontinued) until the opening of the next session.
Implications of Prorogation
Impact on Government Bills
Prorogation of a session usually brings to an end all proceedings before Parliament. Government bills that have not received Royal Assent prior to prorogation 'die' on the Order Paper and must be reintroduced as new bills in the next session. Exceptionally, bills can be reinstated at the same stage they had reached at the end of the previous session by agreement in the House.
Unlike dissolution of Parliament in advance of an election, during a period of prorogation, the Speaker, the Prime Minister, Ministers and Parliamentary Secretaries remain in office and all Members of the House retain their full rights and privileges. Members, however, are released from their parliamentary duties until Parliament is next summoned.
As committees are extensions of the House with their powers limited entirely to the authority delegated to them by the House, committee activities also cease with no committees sitting post-prorogation. House Committees automatically lose their reference, mandate, powers and members upon prorogation (with the exception of the membership of the Standing Committee on Procedure and House Affairs, as well as in the case of standing committees and joint standing committees, their existence are automatically provided for under Standing Orders). Consequently, House committees will need to be re-constituted, a new Chair appointed, etc. (even if the committee makeup stays the same, i.e. same members, same Chair re-appointed).
There continue to be a number of important legislative efforts that could thus be affected by prorogation.
Fall Economic Statement
First and foremost, an early prorogation call could prevent or delay the Minister of Finance's Fall Economic Statement and any subsequent legislation to implement it, if required. While expectations as to the scope of the Fall Economic Statement vary amongst prognosticators, given the uncertainty as to the remaining duration of this Parliament, the Fall Economic Statement may be the last budgetary and omnibus legislative measure the Liberals may steer to Royal Assent in this Parliament.
Capital Gains Inclusion Rate
There is a slight possibility that prorogation could result in the Liberals' controversial increase to the capital gains inclusion rate, effective as of June 25, 2024, ultimately not becoming law. Should this initiative not receive Royal Assent before Parliament would stand prorogued, it could ultimately fail by virtue of the government subsequently falling pursuant to the requisite confidence vote on the Speech from the Throne. This would mean that taxpayers who had sold property earlier this year to avoid the capital gains inclusion rate hike could regret their decisions, while others will have undergone considering tax planning unnecessarily.
Canada Elections Act
Proposed amendments to the Canada Elections Act, through Bill C-65, which are currently before committee, and which had been at the heart of the now "ripped up" Supply and Confidence Agreement between the Liberals and the New Democratic Party would not advance.
Bill C-282
The fate of the Bloc Québécois MP's initiative, Bill C-282, which would exempt agricultural supply management (dairy products, poultry and eggs) from any future trade negotiations, and which is currently stalled in the Senate, also hangs in the balance. This formed one of the main Bloc Québécois demands to the Liberals to achieve by October 29th, in exchange for their temporary support on confidence votes. Should prorogation occur, then the bill would be further delayed, as it would need to be reinstated at First Reading in that chamber.
Other Major Government Bills
There are also a host of other major Government bills that would likely need to go back to square one of the legislative process, including major reforms relating to cybersecurity to the Telecommunications Act (Bill C-26), an overhaul of the wrongful convictions process in Canada (Bill C-40), a new framework for First Nations Clean Water (Bill C-61), and the modernization of the military justice system (Bill C-66).
What Does Prorogation Not Affect?
Prorogation, however, does not affect Orders or Addresses of the House for the tabling of government reports required to be tabled by statute. Requests for responses to Committee reports or petitions are still valid following a prorogation. These continue in force from one session to another, but are ended by dissolution.
Prorogation also does not impact House of Commons Private Members' Business. Changes to Standing Orders made permanent in 2005, means that prorogation now has little practical effect on Private Members' Business. Private Members' bills and motions originating in the House, including motions for papers which have been transferred for debate, need not be reintroduced in a new session as they automatically are deemed to have passed all stages completed in the previous session and retain the same place on the Order Paper. However, all Senate Business is terminated as of prorogation, and so must start anew.
Reinstating Government Bills Post-Prorogation
Although the general rule is that government bills die on the Order Paper and must be re-introduced at the start of a new session, bills have been reinstated by motion at the start of a new session at the same stage they had reached at the end of the previous session. Committee work has similarly been revived. This has been accomplished in a variety of ways, such as the House giving unanimous consent to a motion to reinstate a bill in a new session at the same stage it had reached before prorogation, or through the adoption of a motion to that effect, after notice and debate.2
However, given the political machinations currently besetting the House of Commons, it is unlikely to expect the Liberals to find willing dance partners for many, if any, motions to reinstate Government Bills to their pre-prorogation stage. The Conservatives have no incentive to facilitate Liberal legislative successes, nor would the New Democratic Party or the Bloc Québécois likely want to be seen as rewarding the Liberals attempt at reviving their fortunes through prorogation, outside of any clear, urgent legislative priorities of theirs.
What Are the Chances of Prorogation?
The Liberals have denied the prorogation rumors, but with pharmacare legislation having recently passed, the paralysis in the House of Commons showing no signs of ending, an increasing number of Cabinet ministers announcing they will not re-offer at the next election, there are ample political reasons to attempt to change the channel with prorogation.
Nonetheless, while anything could happen, it is unlikely that the Government will choose to prorogue before Deputy Prime Minister Freeland has an opportunity to present her Fall Economic Statement. A prorogation after the Winter recess, however, could still be in the cards – combined with an inevitable Cabinet shuffle, the prorogation would offer one last opportunity for the Government to present a refreshed vision to Canadians through a Speech from the Throne.
Footnotes
1 On September 26th, the Conservative Party of Canada's House Leader, Hon. Andrew Scheer, brought forward a motion relating to the failure of the government to fully comply with a House of Commons order to produce documents relating to the Auditor General of Canada's serious concerns around Sustainable Development Technology Canada's program management. As the violation of a House order is matter of parliamentary privilege, debate on this motion takes precedence over nearly all other House of Commons business.
2 See, for example, Journals, October 21, 1970, p. 46; May 9, 1972, p. 281; March 8, 1974, pp. 25-6; October 3, 1986, pp. 47-8; March 1, 1996, pp. 23–4; March 4, 1996, pp. 33–5, 39–41; February 6, 2004, pp. 25, 27; February 9, 2004, pp. 29–31; February 10, 2004, pp. 34–41, October 21, 2013, pp. 37–44."
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