Evidence of meeting #10 for Procedure and House Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was advice.
A recording is available from Parliament.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
In other words, it would be a stand-alone or a one-off, if you will, to the federal government.
Going back to comments that David was making and your responses to them, if the House, obviously in a minority government, was offended by prorogation, the obvious remedy could be, following prorogation, to bring forward a non-confidence motion expressing non-confidence in the actions of the government of the Prime Minister. That would be the remedy.
Law Clerk and Parliamentary Counsel, House of Commons
That's correct. That would be one remedy, certainly. Another remedy is to have a large debate expressing criticism of the government, and so on, which means confidence continues, but short of actually doing a non-confidence vote it is a matter of debate, perhaps expressing dissatisfaction and unhappiness, etc., but the prorogation is there.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
This is my last question. Just so I'm clear--and I know you've answered it before, so I apologize, but I might have missed something in interpretation--if one wanted to enact a constitutional amendment to deal with prorogation, would one necessarily have to go the seven-and-fifty route, or could it be done somewhat differently?
Law Clerk and Parliamentary Counsel, House of Commons
As I say, I think if you were to look at section 44 of the Constitution Act, it provides that “Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” It doesn't say Parliament as such. Now, it's possibly there, but one would have to get into rather narrow debates and discussions about parsing out those words, etc. Otherwise you're under section 38, which is seven and fifty.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Also the question is whether or not, because it does have some impact, obviously, on the Governor General because the Prime Minister still has to seek--
Law Clerk and Parliamentary Counsel, House of Commons
Then you could be under section 41 and you have to have the consent of the provinces.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I guess that's where the confusion is, really. I don't know how you resolve this. Something would eventually have to go upstairs to the Supreme Court for a--
Law Clerk and Parliamentary Counsel, House of Commons
That's a legal question I think would be justiciable once it becomes apparent what the issue is. Either a constitutional amendment is proposed and a reference goes to the Supreme Court asking if this is okay, or it's enacted, in which case it's challenged later. Then the Supreme Court of Canada has an occasion to rule on it later.
Conservative
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Thank you, Mr. Chairman.
Thank you, Mr. Walsh, for having shared your knowledge with us. We however see that there still remain grey areas.
I would like to come back, not to the December 30, 2009 prorogation, but to that which was granted following the coalition between the Liberal party and the NDP, supported by the Bloc Québécois.
I would like you to take a few minutes to explain to us the distinction between the role of the Governor General and that of the Prime Minister. The Prime Minister, who has a consultative role, initiates the request, but the ultimate decider is the Governor General. But, as we have seen, the Governor General took a long time before reaching a decision. Rumour has it that it was a much longer wait than what the Prime Minister had expected. I would not say that these things are usually automatic, but let us say that, duration wise, you generally have to count on the time it takes to have a cup of tea with a biscuit. The Prime Minister then leaves with his prorogation in hand. I am going to make a political comment, because I am in politics. You, however, must stay on the sidelines. Apparently, the process was so difficult that it could cost Michaëlle Jean her position. Given that the Prime Minister can hold a grudge and that he has a good memory, the renewal of the Governor General's mandate could be in peril.
Could you explain to us the distinction between the role of the Prime Minister and that of the Governor General?
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Yes. The Prime Minister's role is exclusively consultative. The Governor General, however, has certain powers, even if this process is somewhat automatic.
Law Clerk and Parliamentary Counsel, House of Commons
It is the Governor General that holds the legal power. The Prime Minister plays a political role. According to an unwritten rule, a constitutional convention, the legal power belongs to the Governor General. It is the Governor General who decides. In a classic situation, the Governor General grants the Prime Minister prorogation in response to the latter's advice. However, the Governor General is empowered to act independently — even going against the Prime Minister — in extreme circumstances. It is difficult to imagine extreme circumstances, but if the Prime Minister was motivated by financial interests or was proven to be corrupt, for example, the Governor General could reject his request.
Bloc
Michel Guimond Bloc Montmorency—Charlevoix—Haute-Côte-Nord, QC
Are you aware of any precedents at any point in the history of Canada? Did it ever happen that in London the representative of the Queen or the Queen herself refused to accede to a political request made by a Prime Minister? You confirmed for me that the Prime Minister has a political role. But we saw that in reaction to the coalition, the Prime Minister thought of using prorogation as a political response to the political move made by the opposition parties.
Have there been any cases where the Governor General clearly said no?
Law Clerk and Parliamentary Counsel, House of Commons
With regard to prorogation?
Law Clerk and Parliamentary Counsel, House of Commons
No, that has never happened.
Law Clerk and Parliamentary Counsel, House of Commons
I would have to research the matter. I do not believe that it has ever happened, but the researchers in the Library of Parliament could verify this. It is always possible, because the British have a longer history behind them than we do.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I have one very brief question.
When I did my law school and did constitutional law, for part of the courses we were studying the Canadian government and our Parliament and the constitutional system. I remember discussing the Governor General's authority to dissolve, prorogue, etc., on the advice of the Prime Minister. From my recollection, it appeared that the only people in the room were the Governor General, the Prime Minister, and possibly a staffer to the Governor General. Is that the norm and what we understand publicly? If that's the case, there were articles questioning the presence of the Clerk of the Privy Council, who is ultimately a deputy minister to the Prime Minister. There were other people who were present when the Prime Minister went to the Governor General in December 2008 to request prorogation, if my memory serves me right. If so, was what was reported unusual?
Law Clerk and Parliamentary Counsel, House of Commons
I believe it is unusual in the sense that the tradition--there's no constitutional convention that I'm aware of--in the past has been that it was a private meeting of the Prime Minister with, in England, the Queen, and in Canada with the Governor General. I believe that practice may have changed in recent occasions, it would appear, from media reports. I wasn't there, but it appeared from media reports that others have been in the room. I don't know of any rule that says there can't be others in the room. Protocol would suggest it's the Governor General's choice as to who else is in the room. Protocol suggests to me it is. In other words, it would be, I would have thought, contrary to protocol for the Prime Minister to bring along a team of people to sit and watch what he's asking her for, but that's a matter of protocol. It's a tradition, that's all, and understandably so, because it is a matter that is private to the Prime Minister and the Governor General. I don't know if there's any rule of a legal nature or quasi-legal or constitutional convention that requires that.
