Hello, everyone. Thank you very much for the invitation to appear.
I am sorry, but I have to express myself in English only, because I don't master French very well and I speak it too slowly.
I've been asked to speak about the government's constitutional legal powers in the context of our governing system. I will talk about the foundations and then the legal basis and the constitutional basis, as well as the conventional basis—constitutional—for prorogation and then a little about some parallels with what has actually just transpired this year. Then I'll conclude with some remedies. You have my notes. I will be summarizing them fairly quickly.
To begin, the heart of democracy in Canada is Parliament. It's fashionable to deride Parliament, to downplay its importance, but Parliament has truly stood the test of time in ensuring transparency of government actions and accountability of the government to the people, and in acting as a voice for Canadians, just as the founders envisioned. While prorogation is often derided as a political tool, closer examination I think situates it as an important aspect of the relationship between the executive and legislative branches of government.
As we know from the Supreme Court, Parliament is sovereign, and the executive and the courts should respect Parliament as the primary institution. A core strength of the Canadian political system is that the executive is strong, it's able to execute its agenda and it can act quickly and decisively.
Now, the support of the House of Commons is important to the executive and to ensuring that its agenda gets through. That is one of the first functions that the House of Commons must do: to support the government. But to ensure the government does not become too powerful, Parliament has a second important duty, and that is to hold the government to account, as you are doing by reviewing this report.
By confronting the government directly, the House of Commons shines a light on instances of questionable or poor judgment and offers alternative views or scenarios so that Canadians can decide whether they'll keep or fire the government in the next election. By performing this duty, the opposition parties, but the House of Commons generally, helps ensure governance is not only undisrupted in Canada, but also that it's transparent good governance during both normal times and crises.
Prorogation embodies these fundamental aspects of the relationship between the executive and Parliament. It's a more refined tool than the blunter one of dissolution, which, as you know, dissolves Parliament and forces an election. Prorogation pauses the work of Parliament rather than halting it, so it keeps government working, and that's important. You've heard that prorogation does have two components. It suspends the work of Parliament by ending its current session and it resets the parliamentary agenda with the start of a new session and throne speech.
In Canada, prorogations have been as short as a few hours, and they can go up to the constitutional limit of one year. The norm is usually 40 days, or the Prime Minister requests an extension. Prorogation is derived from the common law prerogative powers of the Crown under the Westminster model of parliamentary government, but we have a uniquely Canadian twist to them. Section 38 of the Constitution Act, 1867 states:
The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons.
This has been interpreted to include prorogation and dissolution. By virtue of the Letters Patent,1947 the Governor General is authorized and empowered to exercise the powers of the Crown with respect to “summoning, proroguing or dissolving the Parliament of Canada”, and, by convention, the power to advise dissolution and prorogation lies with the Prime Minister.
To go on to the power itself, it's complex and it's controversial, in part owing to the fact that it's largely governed by conventions.
Under the conventions of responsible government, the Governor General acts under the direction and advice of ministers who are members of Parliament and who collectively hold the House of Commons. This ensures that the government is beholden to the legislature at all times. If the advice tendered by cabinet is lawful and constitutional, then the Governor General is obliged to accept and follow it. This ensures that the head of state is ultimately accountable to the citizens through the government and Parliament.
The Prime Minister, as head of government, is responsible for the decisions of the Governor General, and this is important because it keeps the Governor General above the political fray and keeps that office impartial. Things become trickier if the advice is unconstitutional or unlawful or if the government does not hold the confidence of the House.
In these cases, the very first responsibility of the Governor General is to advise and warn the Prime Minister of this possibility, and the first remedy rests with the Prime Minister and government. Matters become murkier if the government presses forward. If the remedy is unavailable and the advice contravenes the Constitution or legislation, then the Governor General can refuse the advice or defer action.
In the second case, whereupon the government is unable to proceed with its agenda in a deadlocked Parliament, then the first and preferable remedy is for the government to accept this responsibility and advise the Governor General on the best way out of the deadlock. In this case, prorogation is a less drastic decision and course forward than are dissolution and an election. A pause in the work of the House may allow passions to subside and a reasoned debate to take place after prorogation.
I can cover the rest of my remarks in the question-and-answer period.