No, a prorogation would not be unconstitutional

Justin Trudeau is having a bad week. Following the resignation of Chrystia Freeland, there is speculation that the prime minister is considering stepping down himself. Amidst that speculation there is also the suggestion that he might prorogue Parliament.

Conservative leader Pierre Poilievre has objected to a prorogation, going so far as to suggest it would be unconstitutional: “The reason is that if you don’t have the confidence of the house of commons you cannot govern, under our 800-year tradition,” he said. “I would say to the governor general, that prorogation that prevents us from testing the confidence of this crumbling government would not be allowed under the rules.”

Mr. Poilievre is flatly incorrect.

If the PM does decide to make way for someone else, a prorogation would be entirely appropriate to allow for a quick transition to an acting Liberal leader and new PM. But even if the PM decides to stay on, a prorogation to allow the government to reset its agenda and quickly get its own house in order would be in keeping with historical practice, and the Governor General would have no basis to refuse a request.

Prorogations do not become ‘unconstitutional’ just because a government is in crisis mode. Even a government suffering ministerial resignations continues to enjoy confidence up to the point where the opposition actually votes no confidence. And those watching Parliament this Fall can plainly see the House of Commons had plenty of opportunity to defeat the government and force an election.

This raises the question of under what circumstance a Governor General could refuse a prorogation request. Only a handful of scholars argue that the GG enjoys zero discretion. Under this view, the only time a GG can refuse prime ministerial advice is if there has already been a vote of no confidence.

By contrast, most scholars believe there may be circumstances, however rare, where the GG enjoys discretion with respect to prorogation. The so-called ‘prorogation crisis’ of 2008 brought this view to light. Stephen Harper sought a prorogation ahead of scheduled confidence vote in which a Liberal-NDP coalition, with the support of the Bloc, had announced their intention to defeat and replace the government (only weeks after the 2008 federal election had given the Conservatives a minority government).

In 2008, the GG ultimately granted the prorogation, but it was revealed that the specific conditions of the prorogation - that it was relatively short (interrupting only 10 or 11 sitting days, as it coincided with the holiday break), and that there would be an immediately opportunity for a confidence vote when sitting resumed - were key to the GG’s decision.

In effect, 2008 set an important precedent, one with several different lessons: 1) It re-affirmed that in almost all but the most extreme circumstances, a GG should adhere to the advice of a PM so long as the PM enjoys confidence, 2) It confirmed that the decision is not, in fact, an automatic one: the GG enjoys discretion where a prorogation request might threaten to fully impair Parliament’s accountability role. In other words, had the 2008 prorogation request sought to sideline Parliament for months on end, the GG might have been right to refuse the request, because the threatened non-confidence vote would have called into question the government’s legitimacy in the context of responsible government. Under the specific circumstances in which it happened, a majority of constitutional experts agreed the GG was correct to accede to the request.

The current circumstances are simply not as controversial as the 2008 context. If the PM seeks a prorogation for a reasonable period of time, the GG will have no choice but to prorogue.

Some might raise the spectre of the more recent precedent established in the UK in 2019, in which the UK Supreme Court ruled a prorogation request by Boris Johnson was outside his authority as it ‘frustrated’ the role of Parliament. While it is possible to argue that the UK has a different historical practice with regard to prorogations, and thus the UK situation does not actually map onto Canada’s all that well, I’ll skip that argument simply to suggest that if the Canadian courts were to ever involve themselves in a prorogation decision along similar grounds they would be dramatically overstepping their role.

Prorogation requests are not straightforward matters of the law; instead, they are governed by constitutional convention. Matters of convention are resolved by politics, not courts. The conventions around things like dissolution and prorogation are ultimately tied, or related, to the central convention in our system of responsible government, the confidence convention. And we have a designated actor to assess the application of convention in the prorogation context: the Governor General (or at the provincial level, the Lieutenant Governor). The courts should not usurp the GG’s role.

Even in a context where there is a question of whether political norms are being violated (and while the GG followed convention in 2008, that doesn’t mean the government wasn’t violating basic democratic norms by dodging the confidence vote!), ultimately it is for democratic politics to determine whether the government should have been punished, electorally, for their actions. (Indeed, one of the reasons the 2008 coalition crumbled over the short prorogation period is because it proved deeply unpopular with the public - in hindsight, only further strengthening the case that the GG made the correct decision). To have the courts involved in such a context - indeed, to create a situation where the courts are potentially playing a key role in deciding who forms government or when an election happens - would be to imperil the courts’ legitimacy as non-partisan actors.

At any rate, it seems quite clear that in making the assertion that a prorogation right now would be unconstitutional, Poilievre is not making an argument from principle so much as a self-serving claim. The refusal of a prorogation in the present context could make it impossible for the government to stabilize itself (whether Trudeau resigns or stays on). Even more blatantly, Poilievre knows that if he can engineer an election in a context where Trudeau has just resigned and the Liberals don’t have a clear leader it only furthers the Conservative cause. Absent a no confidence vote, the GG’s responsibility is to accede to such a request precisely because a government that currently enjoys confidence also has a right to reset itself, and unlike the 2008 prorogation, which was used for purely political purposes, a reset is exactly what the prorogation power is intended to do.