Still, Rideau Hall is worried that we might not grasp the Governor General’s role as Commander-in-Chief. When journalists said that the Governor General is the Commander-in-Chief of the Canadian Armed Forces, as part of their reporting on Louise Arbour’s appointment, Rideau Hall sent out an email telling them that the correct formulation is Commander-in-Chief of Canada. And today, the Globe and Mail’s Konrad Yakabuski took up Rideau Hall’s corrective, needling Arbour and Prime Minister Mark Carney for saying Commander-in-Chief of the Canadian Armed Forces.

Time to out pedant the pedants.

Section 15 of the Constitution Act 1867 provides that: “The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.” Read that carefully. It’s not of Canada in the abstract. It’s of the Land and Naval Militia, and of all Naval and Military Forces of Canada (i.e. raised by Canada) and in Canada (say, British forces stationed in Canada.)

Who might these Land and Naval Militia and all Naval and Military Forces be today? Section 14 of the National Defence Act tells us: “The Canadian Forces are the armed forces of Her Majesty raised by Canada and consist of one Service called the Canadian Armed Forces.” When we interpret the Constitution Act 1867 and the National Defence Act together, it means that the Command-in-Chief of the Canadian Armed Forces, and other armed forces in Canada, is vested in the Queen.

Ah, but Rideau Hall tells us that the Letters Patent 1947 provide that the Governor General is Commander-in-Chief of Canada. Funnily, that’s not what the Letters Patent 1947 say. They mimic the formulation found in the Constitution Act 1867: Commander-in-Chief in and over Canada. Perhaps Rideau Hall is referring to the Letters Patent that made the Governor General Commander-in-Chief. Alas, no. The Letters Patent 1905 have the same language: in and over.

So, if we want to be true to the Constitution Act 1867 and the Letters Patent 1947, we would say that the Governor General is Commander-in-Chief in and over Canada. The National Defence Act would then clarify that this Command-in-Chief applies to Her Majesty’s Canadian Armed Forces.

It also makes sense when you look at Rideau Hall’s alternative. What does Commander-in-Chief of Canada mean? What part of Canada is being commanded? Who is being commanded? Canadians? Provincial Premiers? It’s a bizarre way to frame it. Yes, it mirrors titles such as Chief Justice of Canada, Prime Minister of Canada, and Governor General of Canada. But we know what those formulations mean in a proper context. The Prime Minister is the Crown’s first minister at the federal level. The Governor General is the King’s vice-regal representative at the federal level. Since there are no provincial armed forces, saying Commander-in-Chief of Canada is perplexing.

Finally, there’s all the honours, symbols, and practical matters. The Governor General has special Canadian Armed Forces uniforms as Commander-in-Chief. She bestows military honours. The Governor General signs commissioning scrolls. The Judge Advocate General serves as the Governor General’s legal adviser for military law. You get the drift: the connection between the Governor General and the Canadian Armed Forces is evident.

Am I saying that Commander-in-Chief of Canada is incorrect? No. I’m saying that, in light of the Constitution Act 1867, the Letters Patent 1947, and the National Defence Act, it follows that the Governor General is the Commander-in-Chief of the Canadian Armed Forces because she is Commander-in-Chief in and over Canada. Put simply, there’s no other armed force she would be Commander-in-Chief of!

Don’t let Rideau Hall’s concerns that the Governor General’s role as Commander-in-Chief might be misunderstood muddy things. You can keep saying Commander-in-Chief of the Canadian Armed Forces.

Postscript

As an example of why we can’t take Rideau Hall’s word on some of these things, look at the first duty they list for the Commander-in-Chief: “acting on the recommendation of the prime minister to appoint the chief of the Defence Staff”. That’s incorrect. The Chief of the Defence Staff is appointed by the Governor-in-Council. The Commander-in-Chief function has no role in this appointment.

One British debate about the nature of the Crown has focused on the following question: is the Crown a corporation sole or a corporation aggregate? A corporation sole is a perpetual office held by a succession of individuals who personify it and exercise its powers while they hold it. Thus, the Crown is a perpetual, singular office, held by King Charles III, who personifies and holds the office. When the Crown’s ministers or departments act, they do so on behalf of the Crown, not as the Crown, since the Crown is held and acts through a single officer. A corporation aggregate, on the other hand, is an entity made up of several officers. When the Crown is seen in this way, the King is the primary officer of the Crown, but the Crown also includes ministers, departments, and so forth. This is a useful construct when we want to use the Crown as a shorthand for the executive or the government. It also allows us to say the Crown must do this or that, or has done this or that, without implying that the King himself must do it.

Although neither the majority (Wagner writing for Côté, Martin, Kasirer, O’Bonsawin, and Moreau) nor the dissenting justices (Rowe writing for Karakatsanis and Jamal) use these terms, their disagreement in Société de l’Acadie addresses a similar question. At issue is whether the 16(2) requirement for bilingualism in New Brunswick’s institutions applies to the Lieutenant Governor as a single office, meaning that the officeholder must be bilingual to fulfill the requirement, or whether the office of the Lieutenant Governor is better understood as a unit of the government, meaning that the Lieutenant Governor herself does not need to be bilingual, but the unit she heads must be.

According to Wagner, the institution of the Lieutenant Governor is “unipersonal” (paras 26, 109). As a result, the Lieutenant Governor herself must be bilingual, since the functions of the office are performed by a single officeholder. Rowe, on the other hand, reasons that the bilingualism requirement applies to the “government unit that she heads, the Office of the Lieutenant Governor, composed of those who support her in the performance of her duties” (para 184).

To support his reasoning, Wagner points to the functions of the Lieutenant Governor. To demonstrate that the Lieutenant Governor must be bilingual, Wagner has to present the vice-regal’s roles and powers as more discretionary than they arguably are. When describing the Lieutenant Governor’s reserve powers in paragraph 30, Wagner is careful to include the usual caveats. The Lieutenant Governor “almost always acts on the advice of the Premier,” though the reserve powers can be “exercised with exceptional discretion” when there’s a crisis regarding confidence. Royal assent, Wagner further tells us, is one of the Lieutenant Governor’s “essential responsibilities,” but importantly, “this assent normally cannot be denied.”

In paragraph 110, however, Wagner loosens things up, in order to emphasize the personal discretion exercised by the Lieutenant Governor: “The Lieutenant Governor may also refuse to dissolve the Assembly or to assent to legislation. While the use of these reserve powers is exceptional, their existence remains fundamental, and their exercise can be entrusted only to the Lieutenant Governor.” All those who’ve written letters to the Governor General and Lieutenant Governors asking them to withhold royal assent will, unfortunately, feel vindicated by the level of discretion described in this paragraph.

Does Wagner really believe that the Lieutenant Governor could ever withhold royal assent? I don’t know. But it’s important for the majority’s reasoning. Even though all bills in New Brunswick are prepared in English and French, perhaps a unilingual Lieutenant Governor might miss an inexcusable grammatical error that would justify withholding assent? Or maybe the meaning of certain parts of the bill would differ between the two versions, and the Lieutenant Governor needs to be able to catch that? In practice, we know that bilingualism wouldn’t plausibly play into a denial of royal assent. Instead, Wagner is stressing the principle of the matter. I do worry, though, that the majority is mucking around with the constitutional conventions surrounding royal assent to respect that principle. As Rowe points out, moreover, there is no requirement for the members of New Brunswick’s Legislative Assembly to be bilingual, even though they are the ones scrutinizing and passing bills. It’s strange that the office that performs a largely pro forma function in the legislative process needs to be bilingual, but those who debate the legislation don’t need to be. As Rowe summarizes in paragraph 219:

It is not the Lieutenant Governor’s role to verify that both language versions of a bill are consistent with each other. Nor can the validity of an Act of the Legislature be questioned based on whether or not the Lieutenant Governor, or any individual member of the Assembly, carefully read and understood a bill. This is reinforced by the fact that royal assent is ordinarily granted as a matter of constitutional convention.

Wagner’s reasoning is stronger when it comes to the Lieutenant Governor’s ceremonial roles. As he notes: “the Lieutenant Governor presides over official ceremonies and plays a role in representing the Crown at certain events…while staff may provide support, the Lieutenant Governor remains the only public figure called upon to embody the state” (para 110). When the Lieutenant Governor bestows honours or attends public events, Francophones in New Brunswick should be able to interact with their vice-regal in their own language. We can debate whether that should be required according to constitutional law or convention, or left to the political judgement of the Prime Minister, as Rowe argues (para 155), but it’s a reasonable expectation.

To my mind, Wagner is right about the nature of the office of the Lieutenant Governor, but Rowe is more correct about the application of 16(2) in this case. I’m not a Charter guy at all —like at all— but I don’t think the word ‘institution’ in 16(2) was plausibly meant to apply to the Lieutenant Governor as a unipersonal office. Going back to the corporation sole versus aggregate question, ‘institutions’ more plausibly refers to those parts of the government or legislature that act on behalf of the Crown, rather than the Crown itself. I’m out of my lane on this question, but if the drafters of the Constitution Act 1982 meant offices, they could have included offices in 16(2), especially since the word is used with respect to the Crown in section 41(a).

To conclude, it’s worth commenting on two other issues raised by the judgment.

First, Wagner builds on the Quebec Court of Appeal in Motard to argue that requiring bilingualism for the Lieutenant Governor does not affect the office of the Lieutenant Governor under section 41(a) of the Constitution Act, 1982. As per Motard, the offices of the Queen, Governor General, and Lieutenant Governors under section 41(a) only deal with the “powers, status and functions” of the office, not the rules surrounding who holds the office. The federal government will be happy about that finding, but it sits awkwardly with the rest of Wagner’s reasons: the office of the Lieutenant Governor is unipersonal and the officeholder must be bilingual, but the bilingualism of the officeholder does not affect the powers, functions, and status of the office? It strikes me that the ability to perform the powers and functions of the office might have some bearing on those powers and functions.

Second, we can ask what this judgment means for other officeholders. Rowe raises the possibility that the majority’s reasoning would mean that the Premier of New Brunswick must be bilingual, too. As he notes in paragraph 237: “The Premier is no more replaceable than the Lieutenant Governor while in office, nor would a unilingual Premier avoid the same concerns of symbolic inequality.” He further notes that the majority’s reasons could lead to a requirement that the Governor General and Prime Minister be bilingual (paragraph 239). Wagner tries to get around this problem by pointing out that the Lieutenant Governor is appointed under section 58 of the Constitution Act 1867, whereas first ministers are appointed under Crown prerogative as per the conventions of responsible government (paragraph 117). I find this argument quite odd. It effectively rests on the idea that a constitutional power of the Governor-in-Council is subject to section 16(2) of the Charter, whereas an exercise of the prerogative would not be. One would think that it would be the reverse.

I suspect that this judgement will be used to support the idea that there is, or should be, a requirement that the Governor General must be bilingual under section 16(1) of the Charter. I’m less concerned about first ministers, since such a rule would conflict with the cardinal convention of responsible government, i.e. that the Crown appoints a first minister who can hold confidence, but the appointment of the Governor General looks wide open for this kind of finding, as Rowe observes (para 238). That then raises this question: what about the Sovereign? How’s Prince William’s French?

The paper has been accepted for publication in Review of Constitutional Studies.

A pre-print of the paper is available at SSRN.

Here are the details:

Unwritten Ultimate Responsibility: The Prime Minister and Canadian National Security

Philippe Lagassé, Ian Brodie, and Vincent Rigby

Abstract

Canada’s Prime Minister is ultimately responsible for national security, yet powers they exercise in this domain are largely unwritten. While statute and regulations provide ministers, departments, and agencies with most of their national security authorities and functions, the Prime Minister’s national security functions and powers mostly stem from an interplay of constitutional convention, Crown prerogative, and their capacity as the head of government. This article examines how each of these sources of authority shape the Prime Minister’s national security roles and powers. The article then explores the Prime Minister’s national security responsibilities and functions work in particular instances. These instances include how Cabinet committees and the PCO have been organized to support the Prime Minister’s national security responsibilities, how the Prime Minister is granted access to classified information, the still evolving roles of the Prime Minister’s national security and foreign policy advisors, the Prime Minister’s involvement in national security diplomacy and military deployments, and the setting of national security budgets. The article concludes with a brief discussion of the limitations of studying the powers of the Prime Minister and national security in Canada.

Keywords: Prime Minister, National Security, Constitutional Convention, Prerogative, Crown

In my view, the majority’s reasoning is constitutionally sound. However, I would further argue that the dissenting justice, Justice Côté, is onto something when she argues that the NSICOP Act is an affront to Parliament as an institution. Although the NSICOP Act is constitutional, it reflects a distrust the intelligence community has toward parliamentarians, and the law improperly privileges (pun intended) the executive over the legislature. It is also unclear whether the NSICOP Act’s limits on the privileges of committee members are necessary. Cabinet ministers are privy to protected and classified information, yet their privileges as parliamentarians are not curtailed. Similarly, opposition leaders have been granted clearances to access certain classified materials, including an NSICOP report on foreign interference, ironically enough, yet their privileges have not been limited. The NSICOP Act is constitutional, but still bad law.

As Emmett Macfarlane points out, the majority’s reasons in Alford were in line with established understandings that the houses of Parliament determine the scope of privilege for their members. Indeed, section 18 of the Constitution Act 1867 holds that Parliament defines the scope of privilege by statute. Section 18 has been interpreted such that privilege has a constitutional status, but that does not mean that specific privileges and their scope are locked in constitutional amber. Parliament retains the authority to determine the privileges of the houses and their members. Alford thus confirms that section 18 allows Parliament to curtail the privileges of parliamentarians.

Section 18 further holds that there is a ceiling to parliamentary privilege. Parliament cannot legislate privileges beyond those enjoyed by the British House of Commons at the time of confederation in 1867. Hence, Parliament cannot grant the houses and their members any privileges it would like. Privilege must stay within the boundary set by section 18.

Alford required the SCC to ask whether privilege has a floor in Canada. A plain reading of section 18 would suggest that Parliament could terminate privilege entirely or greatly reduce it. Writing for the majority, Justice Rowe found that privilege has a floor. Section 18 cannot be used to alter Parliament’s fundamental powers and functions in Canada’s constitutional architecture. Nor could section 18 be used to significantly weaken Parliament under Canada’s separation of powers. As Rowe argued: “s. 18 could not properly be relied upon as the source of authority to effectively abolish parliamentary privilege as a whole. Nor could it be used to fundamentally impair the ability of the Houses of Parliament to carry out their essential functions as deliberative law-making assemblies in which the executive is held to account” (paragraph 70).

In the majority’s estimation, the NSICOP Act does not hit this floor. Removing the protection of privilege for NSICOP members who disclose protected information they learned as part of their committee work does not fundamentally impair Parliament’s ability to hold the government to account. Nor does it unduly limit the overall privileges of NSICOP members. The NSICOP Act only removes the protection of privilege for specific information that committee members learn as part of their role.

Justice Côté disagreed. She argued that threatening parliamentarians with imprisonment should they disclose, in parliamentary proceedings, information they learned as part of NSICOP is an overreach. She argued that privilege has long served to prevent parliamentarians from being imprisoned for their speech, that parliamentarians have examined and debated sensitive information in the past without restrictions on their privileges, and that the wording of the NSICOP Act is too broad, covering information that may or may not be classified. She further noted that the British equivalent to NSICOP, the Intelligence and Security Committee, leaves the privileges of its members intact. (Incidentally, Australia’s Parliamentary Joint Committee on Intelligence and Security also leaves the privileges of its members intact, and I have been told in research interviews that it would be considered outlandish to even contemplate limiting their privileges.)

According to Côté:

This legislative arrangement runs counter to responsible government and representative government. Under threat of prosecution, parliamentarians may be less able to hold the executive to account if they come across abuses or other illegality. Committee members will be less able to represent the interests of their constituents if they cannot speak on issues that may well be of immense importance. Perhaps most importantly, by transferring the determination of whether speech in Parliament is licit to the executive and the power to punish for certain speech to the courts, the NSICOP Act fundamentally undermines the separation of powers.

Despite her concerns that the NSICOP Act potentially limits the disclosure of too much information, one could argue that the law is actually quite limited. The majority saw it that way, and fundamentally, it comes down to a matter of interpretation and what hypotheticals are considered plausible. As the majority further held, the restriction of privilege found in the NSICOP Act is circumscribed and cannot be said to undermine Parliament’s core constitutional functions. On balance, I think this is right, which is why I agree with the majority that the law is constitutional and in keeping with Parliament’s power to define the scope of privilege.

That said, Côté is correct that the NSICOP Act’s limitations on privilege are suspect and contrary to the executive’s subservience to Parliament. It is now well-known around Ottawa that the limitations on privilege included in the NSICOP Act reflected the intelligence community’s concerns that parliamentarians could not be trusted with classified information. That right there should set off alarm bells. The fact that parliamentary privilege was limited to reassure the intelligence community tells us how dismissive we are of Parliament in Canada. Parliament’s job is to scrutinize the executive, including the intelligence community. Limiting the privileges of NSICOP to placate the intelligence community reverses the proper relationship of trust and accountability.

Put simply, it is the intelligence community that should be earning the trust of parliamentarians, not parliamentarians surrendering their privileges to secure the trust of the intelligence community. Indeed, this is part of the reason why the British and Australian equivalents to NSICOP have their privileges intact: Parliaments and parliamentarians who respect their constitutional role of holding the executive to account, and who respect themselves as legislators who scrutinize the intelligence services responsibly, are not inclined to let the intelligence community’s trust issues undermine their centuries-old privileges.

One might counter that Canadian parliamentarians are not as national security savvy or careful as their British or Australian counterparts. Accordingly, it is necessary to use a bit of implied coercion to keep them from disclosing information that they should not. The trouble with this argument is that we have other parliamentarians who access classified information, but whose privileges are unaffected.

Cabinet ministers are an example. Ministers have access to Cabinet confidences, internal government legal advice, protected and classified information, and so on. Yet, somehow, they manage to keep this information to themselves, even when they move from the government benches to the opposition. Their oaths as privy councillors and obligation to keep classified information secret are enough to prevent inappropriate disclosures. One can only surmise that Cabinet ministers undergo some kind of transmutation when they are sworn in that makes them trustworthy, unlike the rest of the lot in Parliament.

We have a recent example of this transmutation. David McGuinty, the Minister of National Defence, was previously the Chair of NSICOP. As Chair of NSICOP, his free speech privilege was waived for the information he learned on the committee. As the Minister of National Defence, his privilege of free speech is unaffected. Were he to disclose classified information he learned as the Chair of NSICOP in parliamentary proceedings, he could be prosecuted. Were he to disclose classified information he learned as the defence minister, he could not be prosecuted. It’s rather odd.

Perhaps the issue is that Cabinet ministers get vetted before they are appointed. That provides an extra layer of certainty about their ability to stay silent. Similarly, the fact that they are appointed by the Prime Minister gives them a trust buff. NSICOP members, however, are appointed to the committee by the Prime Minister as well, including the opposition members and Senators. There is a degree of quality control happening when they are selected, and they must go through a rigorous background check when obtaining their security clearances. The argument that NSICOP members are less trustworthy than ministers is therefore weak.

Finally, the logic of limiting privilege for NSICOP members has arguably been unravelled by one of the committee’s own reports. Readers will recall that, in 2024, NSICOP released a redacted report that raised concerns about parliamentarians who were “semi-witting or witting participants in the efforts of foreign states to interfere in our politics.” NSICOP members were unable to go into more detail about their findings because doing so might involve disclosing classified information. In the months that followed the release of the redacted report, the Prime Minister invited party leaders to obtain a security clearance to read the classified version of the report for themselves. Only Conservative leader Pierre Poilievre refused to get a clearance and read the full report —and before the nutters get too excited, I’m not saying he couldn’t get the clearance if he so chose. Jagmeet Singh, Yves-François Blanchet, and Elizabeth May, on the other hand, did get clearances. None of these three opposition leaders had their privilege of free speech limited as part of this process. We therefore found ourselves in the strange situation where the members of the committee that prepared the report would not be protected by privilege if they discussed classified elements of it in parliamentary proceedings, but three other parliamentarians who read the classified report were protected by privilege had they chosen to discuss it.

One can easily imagine this bizarre situation happening again. NSICOP could release an alarming but redacted report, which its members cannot discuss in greater detail. Party leaders or other parliamentarians could then be invited to obtain a clearance to review the classified version of the report to give Canadians a better sense of what’s going on. In fact, we have seen this kind of thing more than once, including when ad hoc committees are struck to review information that the Commons have demanded from the government under privilege but that the executive does not want to release in an unclassified parliamentary setting. Think of the Afghan detainee example. If this kind of thing keeps happening, it is worth asking what, exactly, the NSICOP Act’s limit on privilege is achieving, and why our Parliament undermines its own standing vis-à-vis the intelligence community in this manner.

Perhaps this question will come up when the NSICOP Act is eventually reviewed, which was supposed to happen in 2022 according to the law itself. I suspect Alford will be used to argue that the Act is perfectly fine and that the limits on privilege are not worth revisiting.

In sum, Parliament does have the power to limit or waive the privileges of parliamentarians, provided that doing so does not fundamentally impair the legislature’s ability to perform its constitutional functions. The NSICOP Act does not impair Parliament’s core functions, so it is above board constitutionally. Yet this does not mean that the NSICOP Act is good law or in keeping with the proper relationship that should exist between Parliament and the executive, and between members of Parliament and the intelligence community. Justice Côté may not have been correct about the constitutionality of the NSICOP Act’s limitations on privilege, but she was right that these limits are wrong.

The reaction to Arbour’s appointment has been mostly positive. Her background is certainly impressive. She has prosecuted war crimes, sat on the Supreme Court of Canada, been the United Nations High Commissioner for Human Rights, and led a significant inquiry into sexual misconduct and cultural change within the Canadian Armed Forces. Arbour is fluently bilingual and has the experience and gravitas to do the job.

There have been critics of her appointment as well. Arbour is straight out of Laurentian central casting. She’s a good person to be our head of state stand-in with a Quebec sovereignty referendum on the horizon (even Blanchet’s a fan), but that makes her a less compelling representative of the nation as Alberta prepares for a separation vote of its own. Having a Westerner in the office might have been better in that regard.

A couple of months ago, I mused that it would be a good time to appoint a former general/flag officer as Governor General. Given the threats we’re facing and the difficult decisions we’ll need to make to safeguard our sovereignty, that kind of impartial leader would have been welcome. I would have tapped Wayne Eyre. He warned about the difficulties Canada faces when he was Chief of the Defence Staff, he’s bilingual, and he’s a Westerner to boot. Maybe next time.

Arbour’s age is also a potential problem. One of the challenges when appointing a Governor General is finding someone who’s old enough that they won’t be looking around for another gig after their time is up, but not so old that the demands of the office will run them down. On balance, I’d say the bigger risk is going with someone too young, since being the representative of the King should be your last job, and it weakens the office when former vice-regals who are looking for things to do wade into controversies or take on lesser roles than the second highest office of the Canadian state. But we can’t ignore the downsides of an older officeholder. Mary Simon was running out of steam in recent years, as did certain provincial Lieutenant Governors who were left in office by the Trudeau government for far too long. As well, Senators and Supreme Court justice must retire at 75 for a reason —it’s both prudent for the institutions they serve and a kindness to them, even if they don’t see it. Bearing all this in mind, the ideal age for a vice-regal is between 60-75, I’d argue.

Prime Minister Carney made a few comments about the Crown that are worth noting, and worth questioning in one instance. Carney said that the Crown is “a continuous thread running through our constitutional life.” It’s good to hear a head of government say that openly and meaning it.

The Prime Minister further noted that the Governor General is the guardian of Canada’s constitutional order. That’s fine, though we should be careful not to exaggerate. The Governor General is far closer to a figurehead than a referee. They only really get involved when there’s a problem, and their role isn’t to arbitrate between political actors. Indeed, there are only a few situations where a vice-regal will need to exercise their constitutional powers with discretion. One of those is when a first minister requests a dissolution after losing a confidence vote, an election has recently been held, and there’s another viable governing party in the Commons. In that case, the Governor General decides whether to reject the request and appoint a new government or accept the request and dissolve Parliament. Most of the time, though, vice-regals will act on the advice of their first minister. I discuss the realities of the Crown’s limited scope of discretionary authority here.

On a related point, the Prime Minister used one word that made me wince. He said the Governor General’s most demanding duty is “to ensure that government in Canada is formed, sustained, and when the time comes, dismissed in accordance with law and convention.” Yikes.

Prime Ministers almost always resign. Dismissals are exceptional events. If a first minister is dismissed, the situation is pretty bad. And as we saw in Australia in 1975, it leads to a major constitutional controversy that lingers for decades. I don’t want to be too hard on the Prime Minister’s speech writers, but ‘dismissed’ is a very loaded term in a constitutional context.

Finally, Arbour provided an interesting answer when asked if she’s a monarchist: “This term is unfortunately very often used in a pejorative way. What I can say is that I will accede to a function in which I will be the representative of the Crown, in a constitutional arrangement that I think has served Canada extremely well throughout our history, but even more in recent decades.” That’s fairly pro-Crown when measured against contemporary Canadian attitudes toward the monarchy. It may not be enough for the decorative plates crowd, but it’s sufficient for those who emphasize the constitutional in constitutional monarchy.

Strange as it may seem, I became a Westminster-style obsessive when I began working this very issue. This paper brings together lots of my favourite parts of the Westminster system: constitutional convention, the interaction between statute and prerogative, and the nooks and crannies of our system that legal scholarship often overlooks.

Here’s a link to the paper and the title/abstract:

Offices and Officers: The Constitutional and Legal Frameworks of Canadian Civil-Military Relations

Abstract

This chapter examines the complex constitutional and legal frameworks that underpin civilian control of the military and command of the armed forces in Canada. The complexity of these frameworks can be seen across the relationships between civilian offices and military officers. Constitutionally, the King holds the power of command in chief, while the Governor General is Commander-in-Chief. The Minister of National Defence is vested with the management and direction of the Canadian military, but the Prime Minister has unique accountabilities related to the armed forces, including deployment decisions and the appointment of the Chief of the Defence Staff. The National Defence Act states that the Chief of the Defence Staff has the control and administration of the Canadian Armed Forces, though their command authority flows from a mix of their commission, their rank, statute, and regulations. Under certain conditions, provincial Attorneys General can requisition the Canadian Armed Forces to provide aid of the civil power by writing to the Chief of the Defence Staff, and the Chief of the Defence Staff responds based on their assessment of the situation, subject to the direction of the Minister of National Defence. In light of these complexities, the chapter will argue for changes that would clarify the constitutional and legal frameworks that govern offices and officers in Canada. The chapter will conclude with thoughts on how these constitutional and legal frameworks relate to the idea of a ‘crisis’ in Canadian civil-military relations.

Keywords: Canada, Civil-Military Relations, Crown, Prerogative, Command

The reaction to Jacques’ comments was noteworthy. Most of the coverage took them at face value, but he was criticized by Kevin Page, the inaugural PBO, who stated that: “I think the language from the current parliamentary budget officer, Mr. Jason Jacques, is just wrong and he should walk that back, quite frankly.” Jacques’ immediate predecessor, in turn, noted that the interim PBO’s claim was premature. Seasoned politicos and pundits were critical of the interim PBO as well.

Officers of Parliament don’t often face this kind of pushback. Their reports and interpretations are often treated as prima facie correct, and governments are loathe to forcefully disagree with them. Truth be told, few governments believe they can win a public spat with an officer of Parliament, and those who’ve tried probably regret it.

Academics are harder on these officers (see the literature review here.) But that reinforces the point. Political scientists have been critical of these officers because of how much weight their findings have in public policy debates, and of how widely they can interpret their own mandates.

Why are officers of Parliament so influential? Their independence is a big part of it. Since they aren’t partisan or part of the government (no, Parliament isn’t part of the government, sorry), they benefit from a halo of impartiality. Being impartial and being right are two separate things, of course, but they often overlap in our minds.

Media coverage is another factor. These officers are often described as watchdogs or czars, inherently protective or authoritative. The framing of the noble watchdog versus the nefarious government makes for a good story. Opposition parties, furthermore, understandably glom onto the officers’ critiques. Officers of Parliament provide them with a steady stream of ammunition for use against the governing party.

Do officers of Parliament deserve the deference we show them? Yes, by and large. As noted, impartiality doesn’t ensure correctness, but the chances of being correct are higher if you’re impartial. Officers of Parliament also benefit from their professional standing and expertise. Auditors, for example, are trained to conduct independent examinations. We bring them in to give us an expert assessment of the government’s performance, as per auditing standards and practices.

Officers of Parliament are human, though. They bring their own biases and blinders to their roles. They can also be overzealous. We’d be better served by our officers of Parliament if we didn’t shy away from pointing out these shortcomings when they poke through. Those who expect scrutiny have an incentive to be careful and measured.

The interim PBO’s language around Canada’s finances is arguably an example of too much zeal. As others have noted, his assessment ventured into territory that is best occupied by the opposition.

The original F-35 controversy provides another, though less evident, example. We’re going to go with it anyway, because I know the file fairly well. In 2012, the Auditor General found that the government had underestimated the full cost of buying the F-35. The defence department had highlighted the acquisition costs alone, rather than the full life cycle costs. That was a fair critique, but presenting full life cycle costs wasn’t the norm up to that point. Even today, we usually only discuss acquisition costs at the beginning of a procurement. Notably, the Auditor General’s most recent report on the F-35 focused on the acquisition costs of the planes, infrastructure, and weapons, rather than the full life cycle cost.

Was the Auditor General wrong in 2012? Not on the substantive question; the government hadn’t properly considered all the costs of the F-35 over time, which remains a problem. Yet it’s questionable whether this can be done with any degree of accuracy, given that Canada will be flying the planes for at least five decades. As exasperated defence officials quietly complained at the time, we don’t know what fuel will cost next year, let alone in forty. By finding fault with the government’s lack of full life cycle costing, however, the Auditor General contributed to a major political controversy over what amounted to different accounting methods and expectations.

Here’s another one. Both the Conflict of Interest and Ethics Commissioner (CIEC) and Lobbying Commissioner often reinterpret their relevant statutes in ways that merit more public discussion. The CIEC recently had to review some overly restrictive interpretations of the Conflict of Interest Act that it had imposed, for instance. This past summer, the Lobbying Commissioner reinterpreted the threshold around what counts as lobbying. These changes may contribute to better government and higher ethical standards, yet it’s notable that these officers can simply declare that they’re applying the law in a new way, according to what they think is right or wrong.

Call me old fashioned, but I like to think that parliamentarians should be more involved in amending laws if they need to be updated; we have a Parliament to debate bills and legislate, after all. The discretion afforded these officers of Parliament to reinterpret the statutes that guide their activities and provide their mandates seems to inverse the proper relationship between the legislature and its agents.

To conclude, it’s worth reviving an old question: who guards the guardians? Our system of government works best when there’s push and pull between all the actors in our accountability ecosystem. Court decisions can and should be debated; ours shouldn’t be a system of judicial infallibility. Similarly, it’s ok to admit that our watchdogs occasionally bark too loud, lunge at the delivery guy, and chase squirrels up trees. We should pull on the leash more often when they do.

Questions about the Governor General’s discretion are nothing new. Nearly one hundred years ago, in June 1926, Governor General Byng’s refusal of Prime Minister Mackenzie King’s request to dissolve Parliament (prior to a likely vote of no confidence) sparked a fierce debate about the vice-regal role. On one side of the debate were those who felt that Byng had overstepped. Byng had been miffed by Mackenzie King’s decision to stay on as prime minister despite not winning the most seats during the October 1925 general election. Byng thought it was only fair that Arthur Meighen, whose Conservative party had won a plurality of seats, should have had the first shot at governing. Byng’s refusal to dissolve Parliament was arguably shaped by his sense that Meighen should have been prime minister to begin with. By refusing Mackenzie King’s request and inviting Meighen to form a government, Byng may have been trying to right what he saw as a wrong. Regardless of Byng’s motives, Meighen’s government fell on a vote of no confidence in July 1926, leading to a general election that saw Mackenzie King’s Liberals return to power with a majority of seats in the House of Commons.

For Byng’s supporters, the refusal of Mackenzie King’s dissolution request was a proper exercise of vice-regal discretion. The Liberals did not have the most seats, a general election had only recently been held, and the Conservatives appeared to be well-placed to form an alternative government. The fact that the Conservatives failed to hold confidence for very long is notable but had no bearing on the soundness of Byng’s decision. The Governor General made the best choice he could, based on the information that he had. His refusal of Mackenzie King’s request set a notable precedent: while the Governor General almost always acts on the prime minister’s advice, the Crown retains the discretionary authority to refuse in limited, but important, circumstances.

The debate over the Governor General’s discretionary powers was reignited by the 2008 prorogation crisis. In that instance, Governor General Jean accepted Prime Minister Harper’s advice to prorogue Parliament for six weeks in December 2008, even though the opposition parties had agreed to vote no confidence regarding Harper’s Conservatives and govern as a coalition. The 2008 debate was pretty one sided. Most Anglophone scholars argued that Jean either could have or should have refused Harper’s advice. A contrary view was offered by a Université Laval law professor, Guy Tremblay, and two younger scholars, Nicholas MacDonald and James Bowden. They held that the Governor General had no discretion to refuse a prime minister’s advice to prorogue as long as confidence had not been formally lost. Since Jean had consulted two experts, Peter Hogg and Peter Russell, and made Harper wait a couple of hours before accepting his advice, however, this view was widely discounted. If Jean had no discretion, why would she have acted in ways that suggested she did?

A few years before this controversy unfolded in Canada, a British constitutional scholar, Robert Blackburn, published a provocative article in Public Law arguing that the Queen’s “reserve powers” were essentially defunct. Rather than presenting these “reserve powers” as personal prerogatives involving monarchical discretion, Blackburn argued that these authorities had become ceremonial. Those scholars and commentators who insisted that the Queen retained real discretion in the exercise of these ceremonial powers had failed to keep pace with the evolution of the British constitution. Monarchical discretion, Blackburn held, has long since fallen away.

Both sides of the vice-regal discretion debate can point to recent events that back up their claims.

In 2017, the Lieutenant Governor of British Columbia refused Premier Clark’s request to dissolve the legislature after her government failed to secure confidence following a general election. Clark’s Liberals had won a couple more seats than the opposition NDP and Greens, but these two parties signed a confidence and supply agreement that allowed them to present a viable alternative government. Hence, this instance of vice-regal discretion around dissolution checked all the boxes for an exceptional case: the first minister had lost confidence, a general election had just been held, and there was another government that could hold confidence. This case reinforced that vice-regal discretion remains a reality.

The prorogation of the British Parliament in 2019 at the height of Brexit, and its subsequent invalidation by the United Kingdom Supreme Court (UKSC) in Miller II, offered a different lesson. In this instance, the Queen accepted the government’s advice to prorogue. When the UKSC ruled on the matter, the Queen’s actions were not questioned; her acquiescence to the government’s advice was taken as a given. Instead of finding fault with the Queen, which would have been highly inappropriate, the UKSC found that the government had erred, advising a prorogation contrary to the constitutional principle. Miller II not only rendered prorogation justiciable, despite it purportedly being a ‘reserve power’ of the Queen, but the Court’s findings relied on the presupposition that the power to prorogue was effectively exercised by the government.

MacKinnon is an interesting judgment in light of these debates and developments. The case centered on two questions: whether prorogation was justiciable, and if so, whether the exercise of this power exceeded its constitutional and legal limits. It’s the first of these questions that gets at the discretionary powers of the Governor General.

Chief Justice Crampton’s finding that the prorogation was justiciable rested on the reality that the power was, for all intents and purposes, exercised by the prime minister. Now, this decision may seem straightforward, but it goes to the heart of whether prorogation is a “reserve power” that the Governor General has the discretion to refuse. While Crampton acknowledges that the Governor General might refuse a prorogation, he appears to have concluded that this is unlikely when the government has not lost confidence. Indeed, Crampton rightly intimates that the federal government was trying to have it both ways when it came to how prorogation works. On the one hand, the government argued that prorogation should not be justiciable since the Governor General legally exercises the power. On the other hand, a Privy Council Office official admitted that the prime minister decides prorogation as per constitutional convention. Crampton was unwilling to let the government duck and weave between law and convention here. Since a government official admitted that the prime minister determined the timing and length of the prorogation, that’s where the authority actually resides, regardless of the formal exercise of the power by the Governor General.

This finding deals two blows to the view that the Governor General has the latitude to refuse prorogation when the prime minister has not lost confidence.

First, it suggests that Tremblay, MacDonald, and Bowden were more right than wrong about the 2008 prorogation. While we can’t rule out the possibility that a Governor General would deny a prime minister prorogation, that doesn’t seem to be how the Privy Council Office sees things when confidence hasn’t been lost, and the Federal Court appears to agree. To my mind, this shifts the burden of proof onto those arguing that the Governor General has the discretion to refuse prime ministerial advice to prorogue. As it stands, the empirical evidence supports the very narrow discretion side, and there are good theoretical reasons to believe that Blackburn is right that those who uphold a higher degree of Crown discretion are basing themselves on dated constitutional constructs.

Second, as a practical matter, MacKinnon arguably makes it far less likely that a Governor General will refuse a prorogation in the future. All else being equal, the Crown will not act contrary to prime ministerial advice if another institution is able to act as a check on the prime minister. Hence, the Governor General will rely on how the Commons has voted when determining whether or not a prime minister enjoys the confidence of the house. Far better to let the Commons express itself, even if it takes a few months, than have the Crown make that call. Now that MacKinnon has found that prorogations are justiciable and that exercises of this power could exceed constitutional or legal limits, Governors General may very well decide that controversial prorogations should be left to the courts to sort out. Put differently, if the courts are willing to block an abusive prorogation, why would a Governor General risk their political neutrality by refusing the prime minister’s advice? Just as refusals of royal assent no longer make sense when the courts can invalidate unconstitutional laws, refusing prorogation may no longer be in the offing if a judge will sort it out in the end.

A similar logic could extend to abusive dissolutions. Imagine a scenario where a first minister demands a very early dissolution for some evidently partisan reason. Would the Crown have the discretion to refuse the request if the first minister still had confidence? Prior to MacKinnon, a good case could be made that the Crown could refuse a request for an obnoxiously early dissolution. That seems less likely after MacKinnon. The reason is the same. If the timing of a dissolution is under the first minister’s control, the exercise of the power may be justiciable and subject to limits. If that’s the case, why not let the courts, rather than the Crown, sort it out?

Now, let me be clear: I don’t think that the courts should review dissolutions. If a first minister decides to call an election much too early, it’s up to the voters to punish them. And the Crown should certainly try to convince a first minister not to call needless elections. But we also need to be realistic. If vice-regal representatives think that the courts will deal with an issue, allowing them to stay above the political fray, that’ll be mighty attractive. Vice-regals will still refuse dissolutions when a first minister has lost confidence and there’s an alternative government waiting in the wings, but this circumstance reinforces what I’ve been hinting at: vice-regal discretion appears confined to cases where a first minister has formally lost confidence.

I’ll end with a significant caveat: personality matters. Some Governors General are determined to defend their role and prerogatives. Think of how Clarkson and Jean approached the job. Others tend to prefer a less forceful approach. Johnson and Simon fit that bill. Still others are unpredictable and capable of going rogue. Payette is a case in point. We see this with monarchs, too. Queen Elizabeth II’s serene and steady approach is often held up as a model, but it was also exceptional as compared with most Sovereigns who preceded her. All this to say, we can never predict how an individual Governor General might interpret their role and discretion.

Yet personality can only go so far. I suspect that Governors General will increasingly be told by their Secretaries and the Privy Council Office that their discretion is quite narrow and that their job is mostly ceremonial. They may not say it bluntly, but the message will be clear. If that’s the case, we’d need a strong-willed Governor General to push back and claim a more discretionary role. Absent this personal determination, we should be far more skeptical of claims that the Governor General can or will act as a check on prime ministers who haven’t formally lost confidence.

Since every constitutional law prof and their dog will have something to say about this case in the coming days and weeks, I’ll leave a careful parsing of the judgment to my betters. I’ll focus instead on how Crampton discusses the exercise and reviewability of the relevant authority: the Governor General’s prorogation of Parliament on the advice of the Prime Minister.

Let’s start with the prerogative. Crampton defines it in two ways (para 85). First, citing Khadr, he describes the prerogative as “a limited source of non-statutory administrative power accorded by the common law to the Crown” (para 85). This isn’t a great description. Notably, the prerogative can be a fairly expansive power dealing with matters of state. Similarly, it’s odd to cast the prorogation and dissolution of Parliament as administrative powers. And as Robert Craig argues, the prerogative wasn’t historically accorded by the common law, but recognized by it. Crampton then cites a much better definition from Stratas in Hupacasath: “They are the Crown’s remaining inherent or historical powers, as they have been shaped by the common law.” I hope this definition is cited more often, since it captures what the prerogative actually is (the original source of all governing authority) and how the courts have interacted with it (defining its contours and limitations).

When it comes to exercises of the prerogative, Crampton focuses on what Janet McLean has termed the real powers of real people. Yes, the prerogative to prorogue Parliament is legally exercised by the Governor General. Yet, by constitutional convention, the Governor General exercises that prerogative on the binding advice of the Prime Minister. The political rules of the constitution ensure that prorogation is the Prime Minister’s decision in reality, not the Crown’s: “The Prime Minister’s advice is in fact a critical lynchpin of the exercise of the Crown’s prerogative to prorogue Parliament” (para 68).[i]

Interestingly for those who argue that the Governor General retains the discretion to refuse prime ministerial advice to prorogue, Crampton accepts that as a hypothetical (para 69), but suggests that we have no evidence of that when the Prime Minister formally commands the confidence of the House. As he notes in paragraph 67, citing the affidavit of Don Booth of the Privy Council Office:

By convention and under the principle of responsible government, the Governor General acts on the advice of a Prime Minister who enjoys the confidence of the House. As the Respondent itself recognizes, there are no known instances where a Governor General of Canada has ever refused advice by the Prime Minister to prorogue the House. Likewise, there is no evidence before the Court that a Governor General of Canada has ever prorogued Parliament without first being advised to do so by the Prime Minister. Moreover, according to an affidavit filed by Donald Booth on behalf of the Respondent, “the practice and procedure relating to prorogation is within the Prime Minister’s prerogative,” and the length of time for which Parliament may be prorogued “is entirely within the discretion of the Prime Minister.”

As a result, Crampton finds that the case hinges on whether the Prime Minister exceeded his authority to prorogue Parliament (para 78).

Crampton’s decision to focus on the substance of how the prerogative is exercised (through prime ministerial advice by convention), rather than the legal form of the exercise (by the Governor General under Letters Patent) will annoy the conservatively minded. Using constitutional convention as a means of reviewing prorogation seems to run counter to the idea that convention isn’t law and that the ‘reserve powers’ (prerogatives tied to the Crown’s head of state functions) shouldn’t be justiciable. I sympathize with this critique. I think concerns about the political rules of the constitution should be addressed by political actors, not the courts. I also find it objectionable that the reserve powers should be subject to review by the courts, particularly since case law suggests that they form part of the offices of the Queen, Governor General, and Lieutenant Governors. Indeed, this would seem to go against the common law tenet that the Crown ‘can do no wrong’ and the principle that one part of the constitution shouldn’t invalidate another.

I recognize, though, that these notions are relics of the past. Previously, exercises of what we now term ‘executive’ prerogatives, i.e. those where the Crown isn’t formally advised and has no discretion left, were considered non-justiciable. The courts eventually did away with that notion, a point that Crampton discusses over the course of several paragraphs (97-106). In a post-Miller II world, exercises of the reserve powers will be increasingly seen as justiciable. Following Robert Blackburn and the underlying logic of this ruling, this may be because certain reserve powers are increasingly interpreted as executive prerogatives where the Crown has very limited, if any, discretion. Alternatively, it may be because exercises of all power and authority, regardless of source or form, will be subject to review by the courts as a function of the rule of law and the separation of powers. This would align with the Supreme Court’s decision to pierce the shield of parliamentary privilege in Power. Crampton alludes to both rationales (paras 74, 76, 111). Either way, the justiciability of the prerogative, including some reserve powers, is here to stay. We may not like it, but it is what it is.

A good deal of the judgement then deals with various claims about whether the Prime Minister acted beyond the limits of his legal or constitutional authority (para 112). These aspects of the judgment turn on unwritten constitutional principles and matters of administrative law. I have no doubt that my colleagues will have a lot to say here, but I’ll conclude by focusing on what Crampton has to say about responsible government and the confidence convention.

This judgment highlights what a mess the courts have made of responsible government and its place in the constitution. Crampton reviews the ways in which responsible government has been treated as either an unwritten principle or a set of conventions. These sections are hard to read if the history and conventions of responsible government are your thing. He concludes that “responsible government is contemplated by the democratic principle” (para 201). This might have been an opening for a discussion of responsible government as a part of Canada’s political constitution, but the analysis is squarely focused on legal constitutionalism.

When Crampton discusses responsible government, he boils it down to “(1) the responsibility of individual ministers and their respective departments for their activities; and (2) the collective responsibility and accountability of the Executive to the legislative assembly, which includes the Prime Minister maintaining the confidence of the House of Common” (para 198). In a confusing sentence that follows, Crampton dismisses responsible government as a legal check on the Prime Minister’s advice to the Governor General: “there appears to be little scope for the concept of responsible government itself to set legally enforceable limits on the Prime Minister’s authority to advise the Governor General to prorogue Parliament” (para 201). Political constitutionalists will be rubbing their temples raw at this point. While Crampton is making a point about responsible government as an unwritten principle, the role of the political constitution is, again, noticeably absent. From a political constitutional perspective, responsible government empowers the Prime Minister to exercise the Crown’s power while rendering the Prime Minister accountable to Parliament for those exercises. The discussion of responsible government as an unwritten principle and legal check on the Prime Minister reads bizarrely, as a result. In fairness to Crampton, however, he had to deal with the arguments that were presented to him.

Crampton later addresses whether Prime Minister Trudeau had effectively lost the confidence of the Commons when he advised prorogation. This is a noteworthy discussion since commentators argued that the Governor General should not have accepted Trudeau’s advice to prorogue because opposition leaders had publicly declared an intent to vote no confidence. Crampton addresses this issue through the prism of the applicants’ charge that the Prime Minister prorogued to avoid a vote of no confidence, and what evidence the court can rely on when weighing this assertion. Nonetheless, his discussion serves as a good proxy for what the Governor General considers when determining whether a Prime Minister has confidence. Crampton notes that the government had won confidence votes up to the prorogation: “the Respondent’s uncontested evidence is that the House expressed its confidence in the government on three occasions soon before the House adjourned on December 17, 2024 for its winter recess” (para 234). He then concludes that these votes are the only reliable evidence as to whether the government held confidence before the Prime Minister advised prorogation (para 235):

I can understand the Applicants’ view that the situation changed on December 20, 2024, when Mr. Jagmeet Singh, the leader of the NDP, announced in an open letter to Canadians that his party would “put forward a clear motion of non-confidence in the next sitting of the House of Commons.” However, as stated above, that is not reliable evidence of the House’s confidence. Furthermore, it is far from clear when any motion of non-confidence likely would have been placed before the House for a vote, had the House not been prorogued.

The Governor General and her advisors would have come to the same conclusion. What matters is how the Commons last voted, not what opposition leaders say in public.

Just when I was ready to pack it in, Crampton then dropped a bomb: “Given all of the foregoing, the issue of whether it would be beyond the Prime Minister’s authority to exercise the prorogation power for the purpose of avoiding a certain confidence vote is best left for another day” (para 242). Well, then.

Coupled with his overarching finding that prime ministerial advice to prorogue is justiciable, this one-sentence paragraph tells us that we should expect many subsequent prorogations to be challenged in court. Duff Conacher’s Democracy Watch has tried to challenge several dissolutions that were requested prior to fixed election dates set out in legislation. He keeps losing because the Crown’s power to dissolve is left intact by these laws, but he doesn’t let up. Democracy Watch may start doing the same with prorogation. They were an applicant in this case, after all.

That said, I don’t anticipate future challenges succeeding where this one failed. This ruling is a good example of what Thomas Poole calls the prerogative ‘two-step’: the courts find that an exercise of the prerogative is reviewable but then defer to the executive. The two Miller cases represented a notable exception to that habit in the United Kingdom. This judgment suggests that the two-step remains attractive in Canada. Prorogations are now reviewable, but that doesn’t mean any of them will be invalidated. Returning to my general rule, though, I can’t discount the possibility that the courts may go the other way if a prorogation is egregious enough.

[i] As an aside, this is a good example of why constitutional convention shouldn’t be cast as a form of constitutional morality. What’s ethical about how Canadian prime ministers have prorogued in recent decades?

To understand why he could be appointed Prime Minister without initially being a parliamentarian, we need to look at the history of the first minister, the constitutional and legal status of the office today, and the constitutional conventions that surround the Prime Minister under responsible government. Simply put, the historical legacies of our institutions still matter and can lead to some odd situations.

As with most things Westminster, starting at the beginning is helpful. Parliament, Cabinet, and the courts all originate in the curia regis, the royal court established by the Norman following their conquest of England. The curia regis performed what we would today classify as the state's executive, legislative, and judicial functions. At the time, distinguishing them wouldn't have made much sense since it was all the King's business.

In the 13^th and 14^th Centuries, the curia regis was divided into more distinct parts. Several courts grew out of the curia regis, including the Commons Pleas and King’s Bench. A larger council of nobles, what we now recognize as the House of Lords, began convening alongside representatives of the shires and boroughs, the House of Commons, to supply and petition the King. The King’s smaller group of advisors and councillors became known as the Privy Council around this time, too. This separation between the Parliament and the Council, and the later need to bring them back together somehow, is the essential story here.

Parliament and the Council evolved according to their particular functions. Over time, the former became not only a body that funded the Crown but also the legislative power of the realm. We see this transformation most explicitly during the reign of Henry VIII when the Parliament legislated the establishment of the Church of England. That cemented the constitutional reality that the King acting on the advice and consent of his Parliament, the Crown-in-Parliament, was the supreme sovereign authority of the realm.

The Privy Council, meanwhile, was busy running England: executing the law, administering the affairs of state and the royal household, and developing what we now term policy. Henry VIII's council provides us with a good snapshot here again. As the holder of many ‘great offices of state’, Thomas Cromwell was a member of the Council and the guy who managed the realm under the King's direction (until he was beheaded.)

The early Stuarts, James I & VI and Charles I, tried to rule without Parliament in the 17^th Century. That didn't sit well with those who sat in the occasional parliaments that were summoned. Coupled with religious conflicts, the confrontation between the Crown and Parliament led to the English Civil War, which resulted in the execution of Charles I. When his son, Charles II, was restored in 1660, another attempt to marginalize Parliament was made, but it didn't last. Charles II’s successor and brother, James II, was deposed by William and Mary of Orange, who were invited to seize the Crown by disgruntled parliamentarians. Following this Glorious Revolution of 1688, Parliament established its legislative supremacy of the Crown. Governing without Parliament wasn’t feasible since the Crown could no longer get money and essential authorities without the legislature.

In the following decades, monarchs recognized the need for a minister to manage Parliament. Since getting supply was the main challenge, the First Lord of the Treasury emerged as the office held by the Crown's 'first minister'. They were tasked with organizing the informal subset of the Privy Council who did the actual work of governing: the Cabinet. As importantly, this ‘prime’ minister was expected to get the Crown's business through Parliament. Since one had to know Parliament to navigate Parliament, it made sense for this Prime Minister also to be a parliamentarian. As a practical matter, therefore, the First Lord of the Treasury was regularly held by someone who sat in Parliament. Yet the Prime Minister remained an appointment to the Privy Council and Cabinet as the First Lord of the Treasury.

In the 19th Century, prime ministerial appointments gradually ceased being made at the Crown's discretion. The expansion of the franchise and the modern party system meant that the Crown increasingly appointed leaders of factions who had the support of the House of Commons. This eventually became a constitutional requirement, what we now call the confidence convention. The Crown was, therefore, expected to appoint Prime Ministers who were best placed to command the confidence of the Commons. This led some commentators to argue that Cabinet had become the executive committee of Parliament. Formally, however, Parliament and the Privy Council remained separate institutions. The Prime Minister did not technically advise the Crown as a parliamentarian, but as a Privy Councilor.

In Canada, the distinction between the Privy Council and Parliament is provided by the Constitution Act 1867 (CA1867). As outlined in Part III of the CA1867, a Canadian Privy Council was established for Canada at confederation. Since Part III deals with the executive power, we can say with certainty that the Canadian Privy Council is separate and distinct from Parliament under the constitution. Indeed, Parliament is dealt with in the next part of the CA1867, which defines the legislative power. To ensure that the British conventions fusing the executive and legislature were followed in Canada, however, the CA1867’s preamble states that we have a constitution "similar in principle" to the United Kingdom.

Canada's Prime Minister doesn't hold a formal office like the First Lord of the Treasury. Our Prime Minister is more free-floating. Since the Constitution Act 1982 and various statutes recognize the office, we might argue that the Prime Minister is somewhat statutory and a legally defined office. Fundamentally, though, the Prime Minister is a creature of convention. The holders of the office are Privy Councilors, but unwritten conventional rules broadly define the office, including their powers over Cabinet and the wider executive.

One of those unwritten rules is that the Prime Minister should be a parliamentarian. We've discussed the origins of this rule already. When the Prime Minister first emerged, it was because the King needed his chief minister also to be able to navigate Parliament successfully. Today, the rule reflects that one of Parliament's main jobs is to hold the executive to account. As the head of government, the Prime Minister should be in Parliament to answer for the executive. This rule, however, is flexible. Since political parties may choose leaders who are not parliamentarians, and because a Prime Minister might lose their seat during an election, the rules hold that they should be a parliamentarian or working to become one. This usually involves running in a by-election at the earliest opportunity. Arguably, if a Prime Minister knows a general election is right around the corner and a by-election can’t be held, they might wait.

I've been using the term ‘parliamentarian’ thus far because a Prime Minister might sit in the upper house rather than the lower one. Many British Prime Ministers sat in the Lords in centuries past, and we've had two Senators serve as Prime Ministers in Canada. I don't think the Senate would be suitable anymore. British Prime Ministers ceased sitting in the Lords because it was unelected. This is also why we’ve only had two Prime Ministers from the Senate. Today, the convention almost certainly demands that Prime Ministers sit in the Commons. This ensures that they are elected, held to account by an elected opposition, and sit in the confidence chamber.

But we can't rule out a Prime Minister sitting in the Senate as a stopgap. Turning back to Carney, it's possible to imagine that he might sit in the upper house in anticipation of the general election. I'm unsure of which would be worse, constitutionally and politically: Prime Minister Carney sitting in the Senate or remaining outside of Parliament entirely. My sense is that it’s better to wait for an election than be appointed to the Senate, even temporarily. If this is indeed the case, it reinforces the Prime Minister should be an MP or seeking to become one, rather than a parliamentarian in the broader sense.

In sum, the Prime Minister doesn't need to be a parliamentarian because the Prime Minister is formally a Privy Councilor and, hence, an executive office. Convention demands that the Prime Minister be a parliamentarian or seeking to become one, however. More realistically, convention requires that the Prime Minister be an MP.

Should Carney become Prime Minister, we may be faced with an interesting situation: a government desperately trying to keep the confidence of the Commons with a Prime Minister who isn’t in the House. If that does happen, we can thank the particularities of our historical institutions.

Trudeau's resignation, the prorogation, and the coming election raise a series of questions: Do the prorogation and his resignation affect the Prime Minister's authority to govern? What about his replacement’s authority to govern?And what happens if Parliament is dissolved while the United States decides to wreck our economy?

Constitutionally speaking, the Prime Minister's authority is unchanged, despite his resignation and the prorogation. He held the confidence of the Commons before the House rose in December, and he’s still presumed to hold it until the House formally expresses itself otherwise. What the opposition parties say in public doesn't affect this reality. Until the Prime Minister loses confidence, the constitution operates based on how the Commons voted before the holiday break.

This doesn't mean that the Prime Minister's political authority is unaffected. His intent to resign means that his days as the head of government are numbered. President-elect Trump knows this, as do the opposition parties. Like President Biden, Prime Minister Trudeau is a lame duck.

Lame ducks can be surprisingly spritely, though. Since his constitutional authority is unaffected, Prime Minister Trudeau and his government will be able to respond to Trump's economic coercion. Provided that new legislation or spending isn't required, the executive can conduct most foreign and domestic policy unhindered, regardless of the prorogation.

What about when the Liberals choose a new leader, and that person is appointed Prime Minister? There's room for disagreement here, but I would argue that the situation remains unchanged, constitutionally speaking.

The new Prime Minister will be leading the largest party in the Commons and the one whose leader held confidence when the Commons was last sitting. Others may argue that the new Prime Minister will be bound by the 'caretaker convention' once they're sworn-in, since it isn't clear that they hold confidence, but I don't think that aligns with what this convention demands.

Before we get into what the caretaker convention involves, it's worth noting what it doesn't mean:

Caretaker doesn’t mean that the bureaucracy is in charge or running the government. Ministers retain their constitutional responsibility and legal authority under the convention.

Caretaker doesn't kick in whenever a loss of confidence or an election seem likely. Parts of the bureaucracy may have already started to down keyboards in anticipation of an election, but that reflects Ottawa's pathological aversion to risk, rather than a constitutional requirement.

With these misconceptions out of the way, let’s look at the workings of the caretaker convention.

When does the caretaker convention apply and what does it mean?

As outlined by the Privy Council Office, the caretaker convention applies when Parliament is dissolved. That's the trigger: an actual dissolution, not the expectation of election or an anticipated loss of confidence. Caretaker ends when a new government is sworn in after the election, or when the results of the election clearly indicate that the current government will be able to stay in power.

This means that the caretaker convention will come into force when the Governor General dissolves Parliament at the Prime Minister's request. Caretaker will continue to apply throughout the election campaign. The caretaker period will end when a new government is sworn in after the election and a transition process. Alternatively, caretaker could end if the Liberals pull off a surprise come back and win at least a plurality of seats on election day.

What effect does the caretaker convention have on the government and its authority to make decisions?

Above all, the caretaker convention is about respecting a principle of restraint. It demands that the Prime Minister and Cabinet not make decisions that would bind potential successors. It requires that the bureaucracy only perform routine and non-controversial business, such as service delivery. It commands that ministers not use the tools of government to advance a partisan agenda and tells the bureaucracy to be on guard against any such attempts.

There are important caveats surrounding caretaker and the principle of restraint, however. For example, caretaker allows the government to make decisions that could be reversed "without undue cost or disruption" by a new ministry.

Most importantly for us in the coming months, caretaker allows for decisions and policies that are "urgent and in the public interest." The convention also permits decisions "agreed to by opposition parties (in those cases where consultation is appropriate)".

Responding to a 25% tariff or other forms of economic coercion by the United States would be urgent and in the public interest. Similarly, negotiating with President Trump during an election to avoid an economic calamity would be in the public interest.

Caretaker isn't meant to hobble the Canadian government during crises and emergencies. It's designed to give ministers the discretion they need to act when Canadians are in danger, including from economic threats. This discretion is particularly important to keep in mind if we have a long, drawn out campaign.

Of course, given the circumstances, the campaign should be as short as possible. And Liberal ministers should make every effort to reach out to the Conservatives and NDP before responding to Trump's attacks. I recognize that partisanship makes both of these recommendations difficult. The Liberals will probably want an extended campaign to let voters get to know their new leader, and the Conservatives and NDP will want to call out the government’s failures, not help them battle the Trump administration. Alas.

Finally, let’s acknowledge that Canada didn’t need to be in such a tenuous situation. We could have had an election much earlier, before Trump’s inauguration. That would have allowed us to have a fresh Commons and a focused government. Likewise, the Prime Minister could have resigned months ago, which would have avoided having ministers potentially involved in a leadership race when they should be running a crisis government. Instead, we’re facing Trump’s threats with a government in crisis mode.

Honour is a core part of our political system of government. Privy councillors, notably ministers, are given the monicker ‘Honourable’ for a reason: we expect them to act fairly and with integrity. Our system can't run properly if they don’t. Our highest officeholders are held to an even greater standard. The Governor General, the Chief Justice of the Supreme Court, and the Prime Minister are ‘Right Honourable’. They are expected to act accordingly, otherwise our system would break down.

What do we mean by honour and what role does it play? Responsible government evolved as a gentlemanly endeavour. Our system was shaped by a narrow elite who agreed to be bound by the rules of a political game. The political rules of the constitution reflect institutional settlements and arrangements of various kinds. Some of these political rules were abandoned, others endured. Those that were consistently followed eventually became part of the political constitution as conventions. Canada inherited these conventions when it adopted a constitution ‘similar in principle’ to the United Kingdom’s. Whigs once cast these conventions as the inevitable product of the march of democracy and the rule of law. Many legal scholars continue to see them as manifestations of these higher order principles. Underpinning these rules, however, was a socio-cultural element that made them possible: a sense of fair play, probity, and loyalty to the state above naked partisanship and self-interest. That's what honourably means in our constitutional context.

British scholars have coined an idea that captures this well: the 'good chap' theory of government. Our laws and conventions are foundational and form the core of our constitution and system of government. But the system still relies on constitutional and political actors being good chaps. Good chaps aren't supposed to abuse the authority provided by our laws and conventions. Good chaps know when it's time to face the Commons or the electorate. Good chaps know when partisanship has to give way to the national interest. Good chaps act in a way that Andrew Coyne would applaud. You get the idea.

When some of us argue that the Prime Minister should call an election, we're appealing to his sense of honour. The current Parliament is exhausted and dysfunctional. All three opposition parties have publicly declared that they’ve lost confidence in the government. The honourable thing to do is to dissolve Parliament and let the voters elect a new Commons.

External events reinforce the point. Canada is facing a monumental challenge with the re-election of Donald Trump as President of the United States. If the Prime Minister thinks he's still the person to lead the country through what's coming, he should ask voters to reaffirm their faith in his government. If voters no longer want him as the head of government, as the polls suggest, then he should be prepared to accept that verdict. Keeping this dead parrot Parliament in place clashes with the seriousness of the moment. There’s something deeply troubling about being saddled with a zombie legislature as our closest ally and trading partner threatens us with economic ruin. Dragging this Parliament out isn’t the honourable thing to do.

Shouldn’t the constitution get us out of this mess? Alas, it doesn’t offer many solutions at the moment. On the contrary, the Prime Minister has various constitutional means of dragging things out. Prorogation is one option. Despite calls for the Crown to exercise a degree of discretion last seen under Queen Victoria, the Governor General would have few grounds to reject the Prime Minister’s advice to prorogue for a few months. Nor is the Governor General going to dismiss the Prime Minister or compel him to resign; Trudeau has won successive confidence votes of late. Constitutionally speaking, his government and premiership are legitimate and sound. What about the Liberals pushing the Prime Minister out? Party politics may ultimately convince Trudeau to call it quits, but he hasn't yet, and the Liberals don't seem to have the will or means to force him out.

In the end, we’re left asking the Prime Minister to be a ‘good chap’.

At issue here is whether the bill limits the Crown prerogative for foreign affairs. Specifically, does the bill prevent the government from negotiating, signing, and ratifying a treaty that affects supply management?

At first glance, the answer seems straightforward. The bill uses clear, prohibitive language to prevent the Minister from committing to any international agreement that would affect the supply management tariffs.

There are a few issues around the bill, however, which complicate matters. First, although it aims to curtail the prerogative, the bill doesn't bind the Crown. As per section 17 of the Interpretation Act, to affect the prerogative, a statute should bind the Crown. If the Crown isn't bound, the prerogative may not be curtailed or displaced by the statute. Bill C-282 doesn't bind the Crown, which casts doubt on whether it imposes binding limits on the foreign affairs prerogative.

Statutes that don't bind the Crown can nonetheless affect the prerogative by necessary implication. As the Supreme Court found in Alberta Telephones v. Canada, [1989] 2 S.C.R 225, necessary implication requires a clear intent to bind the Crown “when provisions are read in the context of other textual provisions” or when “an absurdity, as opposed to an undesirable result, were to occur if the government were not bound” (228-229).

C-282 arguably fails this test. The bill amends section 10(2) of the Department of Foreign Affairs, Trade and Development (DFATD) Act, which suggests that its provisions should be read alongside the rest of that section to determine whether it meets the contextual and “absurdity” criteria. When C-282 is read alongside the rest of section 10(2), there appears to be a contradiction. Indeed, C-282 and the current section 10 appear to work at cross-purposes, which weakens the case that the bill binds the Crown by necessary implication. Notably, C-282 runs counter to the following subsections of section 10(2) of the DFATD Act:

(c) conduct and manage international negotiations as they relate to Canada;

(d) coordinate Canada’s international economic relations;

(e) foster the expansion of Canada’s international trade and commerce;

Nor do we see an absurdity if the prerogative isn't curtailed; instead, we would arguably see an absurdity if C-282 succeeds in limiting the Minister's discretion. C-282 would effectively hinder the minister’s ability to exercise the prerogative in order to achieve the responsibilities outlined in subsection (c), (d), and (e). It’s particularly difficult to see how C-282 and section 10(2)(e) can comfortably co-exist within the same enactment.

At the very least, the existing section 10(2) suggests that it wouldn't be absurd if C-282 failed to affect the prerogative. Leaving the prerogative unaffected would preserve the status quo and the full scope of the Minister's discretion under the prerogative. Accordingly, if C-282 failed to affect the prerogative, the most we could say is that it would lead to an undesirable result from a parliamentary perspective.

Case law further supports the possibility that C-282 might fail to achieve its intended effect. Three cases are worth looking at in particular. The first two concern the executive’s responsibility for foreign affairs, and the third the question of who can exercise the prerogative.

In Turp v. Canada (Minister of Justice and Attorney General) 2012 FC 893, the Federal Court examined whether the Canadian government could withdraw from the Kyoto Protocol, despite the Kyoto Protocol Implementation Act (KPIA), which sought to ensure Canada's implementation of the protocol. The question before the court was whether the KPIA limited the government’s prerogative authority to withdraw from the Kyoto Protocol. Like C-282, the KPIA originated as a Private Member's Bill; unlike C-282, the KPIA explicitly bound the Crown.  In his judgement, Noël J found that the KPIA did not prevent the government from withdrawing from the Protocol. Since the Protocol itself included withdrawal provisions, the government could withdraw, despite the KPIA. Noël J further noted that, while a clearly worded statute could limit the foreign affairs prerogative, “Under the royal prerogative, the conduct of foreign affairs and international relations, including the decision to conclude or withdraw from a treaty, falls exclusively under the executive branch of government” (paragraph 18). This ruling suggests that a statute aiming to curtail the foreign affairs prerogative should be as precise and explicit as possible. An amendment to the DFATD Act that does not explicitly bind the Crown, and runs counter to the recognition of the Minister’s powers in section 10(2), arguably does not meet this criteria.

In Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R 44, the Supreme Court offered a unanimous judgement that addressed how the courts should balance the imposition of Charter remedies and the government’s powers under the foreign affairs prerogative. At issue was whether the Canadian government should seek the repatriation of Omar Khadr, a Canadian citizen who was held in by the United States in Guantanamo Bay following his capture in Afghanistan in 2002, in breach of his section7 Charter rights, owing to Ottawa’s participation in his detainment. The SCC made a number of interesting observations in this case. Notably, the Court found that section 10 of the DFATD Act does not displace the prerogative for foreign affairs: “The prerogative power over foreign affairs has not been displaced by s. 10 of the Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E‑22, and continues to be exercised by the federal government” (paragraph 35). This conclusion reinforces the need to be cautious when assuming that statutory provisions affect the prerogative. On a plain reading, section 10 of the DFATD Act would appear to cover the same ground as the prerogative, and hence displace the prerogative, yet the SCC has told us that it doesn’t displace the prerogative. This ruling then raises an obvious question: if section 10 of the DFATD Act does not displace the prerogative, how would an amendment to section 10 manage to limit the prerogative without an explicit wording to that effect? Put differently, if section 10 as it currently exists does not curtail the prerogative, why would an addition to that section do so if it does not explicitly bind the Crown?

Khadr is also instructive regarding the executive branch of state’s responsibilities for foreign affairs. The SCC held that judiciary review of the foreign affairs prerogative should recognize the executive’s competencies and responsibility in this area:

The limited power of the courts to review exercises of the prerogative power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution.  This said, judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options. (paragraph 37)

Our first concern is that the remedy ordered below gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests. (paragraph 39)

In this instance, the SCC was discussing the judicial review of the prerogative for Charter compliance, rather than statutory limits on the power. We should therefore be careful when making a connection between the ability of Parliament to limit the prerogative in law and the ability of the courts to impose Charter remedies when the executive exercises the prerogative. It’s difficult not to notice, however, that the SCC told us that the executive has a “constitutional responsibility” for foreign affairs and that the executive must be able to make decisions “on matters of foreign affairs in the context of complex and ever-changing circumstances, taking in account Canada’s broader national interests.” A bill that fails to bind the Crown, but nonetheless purports to constrain the executive’s ability to respond to changing international circumstances and advance the broader national interest, should be subject to significant scrutiny. Given how noticeably it seeks to infringe on the executive’s constitutional responsibility for foreign affairs, such a bill should at least bind the Crown explicitly. Otherwise, we should question whether the legislature truly intends to do what the bill supposedly says.

I accept that this assessment sounds heretical. Parliament is able to abolish, displace, limit, and regulate the prerogative. Suggesting that a bill doesn’t do so because of a technicality, or on account of abstract notions of exclusive executive responsibilities, would appear to undermine the supremacy of Parliament over the Crown. It shouldn’t be too much to ask, however, for Parliament to be explicit in this case and others like it. If parliamentarians are intent on constraining the government’s ability to freely negotiate international treaties, then they should be able to explicitly bind the Crown. If they’re unwilling to do so, especially as part of a Private Member’s Bill, the seriousness of the intent, and the care put into thinking through the ramifications, may be questioned.

While Parliament’s supremacy over the Crown is a core constitutional principle, the separation of powers is a critical principle as well. When these two principles are at loggerheads, we should expect Parliament to make itself absolutely clear. In the case of C-282, that should mean explicitly binding the Crown. If Parliament is unwilling to do so with respect to C-282, we should be able to question whether the bill falls short of its aims, taking into account the broader provisions of the DFATD Act and the executive’s constitutional responsibility for foreign affairs.  

The third case worth considering is Black v. Canada (Prime Minister) (2001) D.LR (4^th) 228. At issue here was Prime Minister Jean Chrétien’s exercise of the prerogative to advise Queen Elizabeth II not to bestow a peerage on Conrad Black, owing the Canadian Parliament’s 1919 Nickle Resolution, which aimed to prevent Canadians from being named peers. As part of his argument, Black held that exercises of the prerogative belonged with the Governor General, rather than the Prime Minister. As Laskin JA found: “As members of the Privy Council, the Prime Minister and other Ministers of the Crown may also exercise the prerogative” (paragraph 32).

Black, then, raises the following question when it comes to C-282: while the bill seeks to limit the Minister of Foreign Affairs’ authority, it is unclear if the constraint extends to the Prime Minister. Although it would be rather cheeky, we can ask whether the Prime Minister’s ability to negotiate changes to Canada’s supply management regime as part of an international treaty is affected by a statutory provision dealing specifically with the Minister of Foreign Affairs. Here again, the absence of a provision binding the Crown leaves open the possibility that C-282 wasn’t drafted in a way that allows it to achieve its objectives.

In sum, C-282 is a deceptively simple bill. It appears fairly straightforward. Nevertheless, there are reasons to doubt whether that very simplicity undermines the purpose of the bill. From what I gather, moreover, the drafters of the bill have been warned that the failure to bind the Crown may be a problem, but they’ve dismissed this concern. They may be right that it’s not an issue; the language of the bill may be clear enough to clip the government’s discretion when it comes to supply management. Yet we can’t ignore the possibility that a court may ask why Parliament didn’t explicitly bind the Crown if that’s what it intended to achieve with this legislation.

My concerns were as follows:

·      Power goes against Mikisew’s distinction between the legislative and executive capacities of the Crown and ministers/parliamentarians.

·      In so doing, Power finds that the Crown-in-Council and executive officers can be liable for legislation enacted by the Crown-in-Parliament and parliamentarians.

·      To get around parliamentary privilege, Power reduces it to the freedoms of individual parliamentarians, rather than the collective shield the houses of Parliament enjoy to ensure that they can fulfil their constitutional functions free from interference by the courts and the executive.

Those who support the majority’s ruling in Power argue that there should be no absolute immunity for the state when it passes unconstitutional laws that violate the Charter rights. Allowing parliamentary privilege, and the different capacities of the Crown and minister/parliamentarians, to stand in the way of state liability would be unacceptable and contrary to other precedents, notably the 2002 SCC ruling in Mackin regarding damages as Charter remedies.

I acknowledge the importance of this normative argument. However, I don’t think the majority in Power had to undermine parliamentary privilege to get there. The Power majority could have been more creative, ensuring state liability while preserving parliamentary privilege and distinct capacities of the Crown. To do so, the SCC could have better leveraged the office of the Attorney General and the old school concept of the ‘wicked advisor’.

The Attorney General is a unique office of state. As the chief law officer of the Crown, the Attorney General has both executive and judicial functions. Indeed, we can say that the Attorney General’s official capacity bridges and exists in both the executive and the judiciary. As per the Department of Justice Act, the Attorney General is an officer of the Crown as the executive power. Yet, the Attorney General also acts as the Crown’s litigator and is ultimately responsible for federal prosecutions. In this sense, the Attorney General is part of the judicial system. The Attorney General, we might say, has a dual executive-judicial capacity.

A possible solution to the Power dilemma would have been to find that the Attorney General is involved in proposing legislation as well. This would not be a separate legislative capacity, as Mikisew laid out, but a third co-capacity alongside the Attorney General’s executive-judicial capacity. In effect, Power could have specified that the Attorney General is also a dual executive-legislative officer who can be liable for unconstitutional legislation brought before Parliament.

This is what the majority in Power found anyway. The problem with the way the majority in Power did it, though, was by making the Attorney General liable for a legislative act of Parliament. What they could have done was refine Mikisew to specify that the Attorney General, in a dual executive-legislative capacity, can be liable for proposing unconstitutional legislation. Whereas Mikisew held that legislating is a unique legislative act, and thus protected by parliamentary privilege, Power could have held that there is a dual executive-legislative officer involved in proposing government bills, and that this officer should be liable for unconstitutional legislation in exceptional cases.

Rather than robbing Parliament of its agency and the constitutional protection of privilege, Power could have found that Parliament relies on improper advice from the Attorney General when it enacts unconstitutional legislation. Put simply, the argument would be that Parliament should be able to rely on the Attorney General’s assurance that a government bill is constitutional, and if that assurance proves to have been made in bad faith, rather than simply in error, then the Attorney General might be liable.

This would be a modern version of the ‘wicked advisors’ argument used by medieval barons to justify their rebellions against the Crown. Parliamentary privilege, like the medieval Crown’s majesty, would be left intact, while the advisors would be blamed. Rather than breaking down the protection of parliamentary privilege or sidestepping the distinct executive and legislative capacities of the Crown, Power could have made a slight modification to Mikisew’s finding that law-making is wholly parliamentary. By recognizing that the Attorney General has a triple legislative-executive-judicial capacity, the court could have avoided its diminishment of parliamentary privilege and conceptually barren presentation the state. This would preserve the shield parliamentary proceedings from judicial interference and privilege wouldn’t need to be reduced to the freedoms of individual members.  

This solution would address another conundrum that Power has created: what to do about Private Member’s Bills (PMBs)? Specifically, Power suggests that the executive should be liable for legislation that it hasn’t even proposed. While this may satisfy the normative argument that someone should be liable for grossly unconstitutional legislation, PMBs should arguably be an exception, since they are parliamentary in origin and enactment, whereas the genus of government bills belongs with the executive by convention.

Both defenders and critics of Power may retort that I’m proposing a distinction without a difference. If the Attorney General is liable either way, what’s the difference? And aren’t I doing the same thing that the Power majority did, blurring the distinction between legislative and executive acts? Maybe. But I’d argue that this solution would have been more respectful of parliamentary privilege and a more elegant way of explaining how the executive could be liable for grossly unconstitutional legislation.

State liability for unconstitutional legislation was likely inevitable, but the court could have landed there without doing as much damage to Parliament and the Crown.

What do I mean by pitting 1867 against 1982? Yes, both the Constitution Act 1867 (CA1867) and the Constitution Act 1982 (CA1982) form part of the Constitution of Canada. But the spirits of the CA1867 and CA1982 constitutions have been in tension since the latter was proclaimed. Our ongoing debate about the notwithstanding clause reflects this tension, for example. The clause serves to reconcile the historic supremacy of legislatures with the Charter’s emphasis on fundamental rights and freedoms. Another major tension has been the relationship between parliamentary privilege and the Charter. Until recently, parliamentary privilege had held the line: parliamentary proceedings and the legislative process were shielded from the courts, and hence, the Charter.

Power dismantles that shield. The Charter now trumps the protection parliamentary privilege afforded the legislative process. To get here, the SCC had to dilute parliamentary privilege, and go against recent understanding of the Crown and the separation of powers.

Let’s start with parliamentary privilege. The privileges of the houses of Parliament emerged to protect the legislature and its members from the Crown and the courts. Privilege ensured that parliamentarians and those participating in parliamentary proceedings could not be arrested or brought before the courts for what they said in Parliament. Over time, privileged served to protect the legislative process itself from the courts under the Westminster system’s version of the separation of powers. Specifically, privilege meant that parliamentarians could deliberate and work on legislation without worrying that the courts would invalidate a bill before it became law. Privilege allowed the legislature to perform its constitutional functions free from interference by another branch of the state. Once a law was granted royal assent, the courts could review the legislation for constitutionality, but not when the bill was not yet law. Privilege thus allowed Parliament to fulfill its constitutional role, undisturbed by the courts, who would get their say after the legislature had done its part.

Privilege has had an uneasy relationship with the Charter. Since privilege was incorporated into the CA1867 in section 18, it had a constitutional basis in Canada. This meant that it was technically on an equal footing with the Charter. Given that one part of the Constitution of Canada shouldn’t be able to invalidate another part, the courts recognized that privilege and the Charter had to coexist as equal constitutional provisions. In practice, this meant that the courts didn’t review proceedings in Parliament for Charter compliance. This didn’t mean that everything that happened within Parliament was beyond the Charter’s reach, but what belonged to proceedings covered by privilege were. Privilege also protected the houses of Parliament from civil suits, such as one the one brought by Senator Mike Duffy against the Senate.

In a 2018 SCC case, Mikisew Cree First Nation v. Canada (Governor in Council), it was further found the Crown’s duty to consult Indigenous peoples did not apply to the legislative process in Parliament. As the majority found in Mikisew:

Longstanding constitutional principles underlie this reluctance to supervise the law‑making process. The separation of powers is an essential feature of Canada’s Constitution. It recognizes that each branch of government will be unable to fulfill its role if it is unduly interfered with by the others. Recognizing that a duty to consult applies during the law‑making process may require courts to improperly trespass onto the legislature’s domain. Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. Recognizing that the elected legislature has specific consultation obligations may constrain it. Parliamentary privilege also generally prevents courts from enforcing procedural constraints on the parliamentary process. Applying the duty to consult doctrine during the law‑making process would lead to significant judicial incursion into the workings of the legislature.

Brown was clearer still in Mikisew:

The entire law‑making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference. The making of policy choices is a legislative function, while the implementation and administration of those choices is an executive function. This precludes judicial imposition of a duty to consult in the course of the law‑making process.

The majority in Power, however, turns against this reasoning and against the coequality of parliamentary privilege and the Charter under the Constitution:

First, the principle of parliamentary sovereignty must not be confused with parliamentary supremacy. Parliamentary sovereignty does not mean that Parliament is above the Constitution; rather, Parliament remains subject to the constraints and accountability mechanisms of the Constitution, including the Charter.

The separation of powers does not mean that each branch works in isolation. The Court has never adopted a watertight system of separation but rather has always emphasized that each branch cannot exercise undue interference, which depends entirely on the circumstances and the constitutional principles engaged. Holding the legislature liable for Charter damages when it seriously misuses its legislative power does not constitute undue judicial interference in the legislative process.

To make its case, the majority in Power reduces parliamentary privilege to the protection that individual parliamentarians have in parliamentary proceedings. This upends what privilege has been up to now: a shield that the houses of Parliament enjoy as collective, corporate bodies against the courts and the executive, with the individual privileges of members are a subset of the collective privilege. In the Power majority’s words:

Parliamentary privilege cannot be subordinated or diminished by other parts of the Constitution. But Charter damages for the enactment of unconstitutional legislation are not claimed against any individual members involved in the legislative process.

How the majority in Power can reconcile its view of privilege with what was found in Mikisew about the constitutional protection Parliament enjoys when law-making is beyond me.

The Power majority’s attempt to cast this question as one about the difference between parliamentary supremacy and sovereignty is equally baffling. The coequality of privilege and the Charter was a function of the fact that both are constitutional provisions and that one part of the Constitution can’t invalidate another. Parliamentary supremacy vs sovereignty was never the issue. The argument wasn’t that privilege shielded the legislative process because Parliament is sovereign or somehow above the Constitution. It was because privilege is provided by s18 of the CA1867! The point was that s18 and the Charter are both part of the Constitution, not that Parliament is somehow supreme over the Constitution. Again: mind boggling.

Mikisew was equally important regarding another outgrowth of the 1867 constitution that Power has fudged: the nature of the Crown as the state.

The Crown is the concept of the state in Canada. As the concept of the state, the Crown is found across the branches and levels of the Canadian state. Thus, the Crown is state at both the federal and provincial levels, and the Crown is the executive power, and part of all the legislatures and the courts. Does this mean that every aspect of the state is therefore one and the same? Is the federal order of government the same as the provincial orders? Is the Crown that’s one part of Parliament the same Crown that serves as the executive power?

Mikisew provided an elegant answer to these questions, one that reflects how the Crown has evolved in the Westminster system, and in Canada specifically. While there is a single Canadian state and single Canadian Crown, it has different capacities. Thus, the federal Crown is a distinct capacity, the Crown in right of Canada, from provincial Crown, such as the Crown in right of Manitoba. This mirrors how the Crown was dealt with after 1926, when the Imperial Crown had to be distinguished between the Crown of the United Kingdom and the Crown of Canada. Making this distinction between the Canadian and British Crowns allowed them to be de facto separate state, despite being de jure unified under the single Imperial Crown. Within Canada, this same concept allows us to treat the federal government and the provincial governments as distinct entities. The Crown is the Canadian state, but we accept that what the federal Crown is separate and distinct from the provincial Crowns.

The Crown’s capacities applied within the federal order of the state, too. The Crown-in-Council is the Crown in an executive capacity, as laid out in part III of the CA1867. The Crown-in-Parliament is the Crown in a legislative capacity, as laid out in part IV of the CA1867. These distinct capacities of the Crown enabled Canada to craft its own separation of powers doctrine. The Crown in an executive capacity had duties that didn’t apply to the Crown in a legislative capacity. This allowed the courts to find that the Crown’s duty to consult Indigenous peoples applies to the Crown-in-Council, not the Crown-in-Parliament. The duty to consult could thus bind the Crown without sacrificing the protection afforded to the legislative process.

The Crown’s distinct capacities applied to its servants as well. Thus, individuals can act through distinct executive ministerial and parliamentary capacities. When a minister is exercising their executive functions and powers, they are acting in their executive capacity. When that same individual is fulfilling their parliamentary functions, they are acting in their legislative capacity. Similarly, we could distinguish Richard Wagner acting as the Chief Justice of the Supreme Court in a judicial capacity from Richard Wagner acting as the administrator of the Government of Canada in an executive capacity in the absence of a Governor General.  They are wearing two hats and are treated differently depending on which one they’re wearing.

By constitutional convention, we accept that having the individuals acting in different capacities is vital for our system of government. What we call ‘responsible government’ depends on it. It’s this conventional fusion of legislative and executive capacities that allows Cabinet to sit in Parliament while keeping the legislature and executive separate in law. Among other things, this conventional fusion but legal distinctiveness that allows us to keep the executive in place while Parliament is dissolved during an election.

These distinct legislative and executive capacities were vital for Brown’s reasoning in Mikisew. According to Brown:

The formulation and introduction of bills is protected from judicial review by the separation of powers. In order for each branch of the Canadian state — legislative, executive and judiciary — to fulfill its role, it must not be unduly interfered with by the others. Ministers of the Crown play an essential role in, and are an integral part of, the legislative process. Their dual membership in the executive and legislative branches of the Canadian state does not render their corresponding executive and legislative roles indistinguishable for the purposes of judicial review. In the instant case, federal ministers took a set of policy decisions that eventually led to the drafting of a legislative proposal, and then to the formulation and introduction of the omnibus bills in the House of Commons. All of these actions form part of the legislative process of introducing bills in Parliament and were taken by the ministers acting in a legislative capacity.  

The majority in Power blurs these distinct capacities. The distinction between Crown-in-Parliament as the legislative power and the Crown-in-Council as the executive power is diluted to get around the protection the legislative process previously enjoyed. The capacities don’t matter in this case. It’s just one Crown, one state. Hence, what happens in the legislature shouldn’t be protected, because the Crown as the state has liability, regardless of which capacity it is acting under.

Likewise, it doesn’t matter that legislating is an act done by legislators in their legislative capacity. The fact that the same individuals hold both executive and legislative capacities means that ministers in their executive capacities can be liable for what the legislature does. Forget the distinction between convention and law; the fusion provided by convention is what matters here, apparently. We can see that it’s the same person wearing different hats! (Except for when SCC justices provide royal assent to legislation in the Governor General’s stead, of course. In that case, there’s no conflict and we can totally distinguish between the capacities and how dare you ask questions or raise concerns. There’s no way SCC justices should have to recuse themselves from cases involving bills they granted assent to in the GG’s place, right?)

In the majority’s words at paras 85 and 95, the executive power and executive officials, ie the Attorney General, are liable for the what’s done by the legislative power:

But Charter damages for the enactment of unconstitutional legislation are not claimed against any individual members involved in the legislative process. The action is against the state. An action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable” (Ward, at para. 22, citing Dunlea v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81; Henry (2015), at para. 34; see also Maharaj v. Attorney-General of Trinidad and Tobago (No. 2), [1979] A.C. 385 (P.C.), at p. 399). The nature of the remedy requires “the state (or society writ large) to compensate an individual for breaches of the individual’s constitutional rights” (Ward, at para. 22). For these reasons, the Attorney General for the Crown or a government agency is the appropriate defendant in Charter damages claims (Roach, Constitutional Remedies, at § 11:13).

The Charter demands that legislative power be constrained by constitutional rights. Courts are constitutionally obliged to hold the government accountable when it breaches such rights, including by providing meaningful remedies in the face of their violation.

In their dissent in Power, Coté and Rowe ask the majority to consider what they’re doing here. Their dissent merits being quoted at length.

On the place of parliamentary privilege in the Constitution they note:

The Constitution Act, 1867 established that parliamentary privilege, which was essential to the operation of the largely unwritten constitution of the United Kingdom, would also be part of Canada’s Constitution; the preamble states that Canada will have a Constitution similar in principle to that of the United Kingdom. Parliamentary privilege was also specifically dealt with in s. 18 of the Constitution Act, 1867, which provides that the privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada. Thus, parliamentary privilege was from the outset a component of Canada’s Constitution and continues to be so today….

Respect for the separation of powers — which has been repeatedly affirmed as a constitutional principle — precludes judicial scrutiny of the legislative process. Subordinating parliamentary privilege in order to impose s. 24(1) damages for the preparation, drafting, and enactment of legislation risks drawing the courts into a supervisory role over the legislative process.

On the intersection between privilege and capacities, Coté and Rower further observe that:

Parliamentary privilege attaches to the entire process through which legislation is developed and adopted. It extends to the range of Parliamentary actors who are involved in the legislative process. When ministers develop legislation, they act in a parliamentary capacity. Despite an inevitable overlap between executive and legislative functions inherent in their work in developing legislation, because they are engaged in the law‑making process when they develop legislation, the process is generally protected from judicial oversight….

when a conflict emerges between parliamentary privilege and another component of the Constitution, is not to read down the protections afforded by parliamentary privilege — the solution is to read the relevant constitutional components in a compatible way. It is not open to the courts to intrude upon the bona fides of parliamentary debates and proceedings. The courts have long recognized the defining significance of Parliament’s work and the need for parliamentarians to debate and develop legislation freely. Parliamentary privileges are vital to the separation of powers as they enable parliamentarians — both individually and collectively — to freely express themselves and to act on matters of importance to Canadians, including controversial public policy issues, without fear of interference from the Crown or the courts.

Finally, Coté and Rowe note the damage that the majority has inflicted on the Crown’s distinct capacities:

The theory of liability endorsed by the courts below in the instant case  elides the distinction between “the Crown” in its executive and legislative capacities. Canada’s Constitution incorporates the Westminster system of government, which was varied for a federal structure rather than a unitary state. Subsequent developments in the Constitution have built on this. In the contemporary constitutional order, the Crown acts in multiple distinct capacities, federal and provincial, as well as executive and legislative. The Crown in its executive capacity and the Crown in its legislative capacity are distinct. The Crown in its executive capacity consists of the King (through the Governor General) exercising the executive government and authority of and over Canada, as continued in the Constitution Act, 1867, s. 9. Those executive powers are, by constitutional convention, exercised by the Prime Minister, Cabinet, and public authorities in furtherance of statutory delegation of authority. The Crown‑in‑Parliament consists of the monarch (Governor General) acting in their legislative capacity. The Crown‑in‑Parliament embraces three determinative acts that are part of Parliament’s core functions as a legislative body: royal recommendation, royal consent and royal assent.

The Crown, thus, is at the heart of both the executive and legislative branches of government, but plays different roles in each. While Canada’s constitutional order envisages some overlap as to the Crown in its various capacities, the law does not recognize executive control of the legislative branch. This is consistent with the scope of parliamentary privilege and its application across the various steps in the legislative process. The preparation of legislation is a complex process involving multiple actors across government. The courts are ill‑equipped to deal with the procedural complexities of the legislative process. The distinctive roles played by the Crown reflects the separation of powers between the different branches of government, and the balance between them. This is part of the explanation as to why absolute immunity is needed for the preparation, drafting, and enactment of legislation, but not for determination of the validity of legislation once it is enacted or the legality of acts taken pursuant to the legislation.

Moreover, the Crown in its executive capacity cannot be liable for the preparation, drafting, or enactment of legislation, as it is not part of the legislative process. Rather it is the Crown‑in‑Parliament which is so; legislation is approved by the Commons and the Senate, followed by royal assent. Seeking damages from the Crown in its executive capacity for the preparation, drafting, and enactment of legislation is conceptually incoherent. The Attorney General of Canada is not the legal representative of Parliament and cannot represent Parliament in legal proceedings.

To conclude, therefore, Power privileges (pun intended) the ideals of the CA1982 over the constitutional foundations of CA1867. To ensure that parliamentary privilege could not be used as an immunity against Charter remedies, the majority went against rulings as recent as 2018 in Mikisew, went against the principle that one part of the Constitution shouldn’t invalidate another, and dissolved the essential distinction made between the Crown’s capacities and those of legislative and executive offices.

It’s all rather disconcerting.

What factors weigh for and against naming names? And is there a way to balance these competing considerations?

First off, it’s important to note that members of NSICOP wouldn’t be shielded by parliamentary privilege if they disclosed the names in Parliament. The NSICOP Act limits their protection from prosecution if they disclose classified information in parliamentary proceedings. Other parliamentarians could name the names in Parliament without facing prosecution, however, thanks to the protection of parliamentary privilege. Cabinet ministers could therefore name the names. Similarly, if a backbencher who isn’t an NSICOP member learned the names, they could disclose them in parliamentary proceedings, too.  

Cabinet ministers will hesitate to air the names in Parliament. Sharing classified information could undermine ongoing investigations and possibly expose intelligence sources. Indeed, naming names could hamper the ability of the intelligence services to understand what the parliamentarians in questions have been up to. Likewise, if the RCMP is investigating some of these parliamentarians and considering charging them, naming them would involve messing around with law enforcement.

Explicitly naming the parliamentarians in Parliament would leave them with no legal recourse. The named parliamentarians couldn’t sue for libel. They could protest all they like, but they would have no means of clearing their names if the allegations are false. Those who are eventually charged by the RCMP might have their day in court and perhaps clear their names, but there’s no guarantee charges will ever be laid. Simply put, the named parliamentarians may not benefit from anything like due process. Rightly or wrongly, I suspect this is leading their fellow parliamentarians to demur.

How can we get around these concerns? I’d argue the answer lies with political parties.

All opposition party leaders should be appointed privy councillors if they aren’t already. They should then be briefed on the parliamentarians who may have been compromised and what they are alleged to have done. Based on this information, the party leaders could then decide what political precautions or sanctions are appropriate. The suspected parliamentarians could be taken off committees. They could be removed from the party caucus and be forced to sit as independents. They could then be barred from running under the party banner in the next election. These sanctions would be harder to manage in the Senate, given the grouping system, but we have recent examples of Senators who’ve been rendered black sheep in the upper house.

What would these steps accomplish? The suspected parliamentarians would be known to the public and marginalized within the legislature. Importantly, though, they wouldn’t be publicly accused of anything. All we would know is that they’ve been sidelined. This would effectively end the political careers of the members of Parliament (MPs) among them.  They’d be forever known as the MPs who did something troubling, even if they never end up being charged with a crime.

The advantages of this approach are two-fold. Above all, it doesn’t involve disclosing details about what the intelligence services have gathered and suspect. Nor does it interfere with any criminal investigations. As well, the parliamentarians wouldn’t be openly named in Parliament. Although their reputations would still be damaged, details about what they’re suspect of having done wouldn’t be known, unless they’re subsequently charged.

That said, there would still be disadvantages. Ongoing intelligence operations could still be affected if the parliamentarians are known but not explicitly named. The parliamentarians who believe they’re innocent wouldn’t have anything resembling due process, particularly if they’re never charged with anything. And we can’t discount the possibility that the intelligence services are mistaken or unsure in some of these cases.

Still, the proposed approach would provide a measure of accountability. Nobody is owed a seat in Parliament or a successful political career. Many MPs have been pushed out of caucuses when they’ve been suspected of wrongdoing. Having party leaders briefed on the intelligence would allow them to make a judgement call. If they think the intelligence is too thin, they don’t need to act. The party leaders can look at each case on its merits.

While it isn’t perfect, we have a way to name names without naming names.   

This issue isn’t only a Canadian problem. Michael Gordon from University of Liverpool has a new article on this subject in the United Kingdom as well. Gordon argues that the Theresa May and Boris Johnston premierships demonstrate that the UK is now living with a convention of ministerial irresponsibility.

To my mind, what we’re witnessing is an evolution of the convention of ministerial responsibility. Ministers are no longer willing to resign for bureaucratic misdeeds or scandals. Ministers may resign if they are personally involved in an ethical lapse or scandal, but even then, most will wait until they’ve been ‘resigned’ by the Prime Minister. And as I argued here, this resignation will usually only happen after the government has exhausted other options and stalled for time.

Ministerial responsibility originated from the need to hold the Crown to account without laying blame or culpability on the monarch. Since the ‘King could do no wrong’, it was necessary to make someone else responsible for the Crown’s actions (see the fate of the Thomas Wentworth, 1^st Earl of Stafford or the South Sea Bubble crisis, as examples.) The Crown’s counsellors were ideal proxies. Since they advised the monarch, the Crown’s missteps could be blamed on their bad advice. Early on, this could lead to the counsellor’s execution. Later, impeachment was the preferred sanction. As Charles II observed: “My words are my own but actions are those of my ministers.”

As the monarch withdrew from the affairs of government in the 18^th and 19^th Centuries, and the executive grew in size, ministerial responsibility evolved. While the Prime Minister remained responsible for the Crown’s actions, the accountability of individual ministers centered on their responsibilities within government. Ministers were responsible for specific departments or portfolios and were individually accountable for those departments and portfolios. While ministers were not involved personally in all decisions related to their departments or portfolios, they were expected to be informed about the everyday goings on. And even if ministers couldn’t realistically stay on top of everything that was happening, they were still expected to resign if their departments or officials were embroiled in a scandal.

In effect, just as ministers had to take responsibility for the monarch’s missteps, whether the Crown was acting on the minister’s advice or not, ministers were now expected to be accountable for the mistakes of the bureaucracy, whether they knew about them or not.

In line with the idea of conventions as rules governing relations of power and exercises of authority, the expectation that ministers should resign for bureaucratic errors rested on the principle that every official act was done under the minister’s authority, and is therefore their responsibility. 

Ministers, however, are far less willing to accept this principle. As government has continued to expand, the notion that they should be responsible for everything done within their departments is losing traction. Although ministers still accept that they’re answerable for everything that happens within the bureaucracy, they’re no longer willing to be held to account, and certainly not to resign, for decisions and actions that they weren’t involved with or knew anything about. For today’s ministers, if bureaucrats break laws or act unethically, the blame and culpability should belong with the officials, not them. Put differently, the focus should be on firing or indicting the officials instead of asking ministers to resign.

Constitutional traditionalists understandably see this as an affront. Ministers are the conduits through which Parliament holds the executive to account. If they refuse to resign for major government failures or scandals, democratic accountability is weakened.

What we’re arguably witnessing, though, is the evolution of convention. As much as we might like to see conventions set in stone and applied rigorously, that’s not how they work. They’re meant to change over time as political actors renegotiate them to reflect contemporary considerations and realities. Once political actors no longer feel bound by a rule, moreover, we’re no longer dealing with a convention, but a non-binding custom.

Currently, the Canadian federal public service includes over 300,000 officials, while there are 40 Cabinet ministers. These 40 politicians are increasingly unwilling to take a political or career hit for the nefarious actions of any of these 300,000+ officials. We may find that perspective objectionable, but as this attitude continues to hold over time, and across governments of different partisan stripes, it'll be difficult to argue that the convention of ministerial responsibility hasn’t changed.

From my perspective, the rules surrounding the resignations and ministerial responsibility are now in a new phase. Ministerial resignations appear reserved for those instances where 1) ministers didn’t act when they knew there was a problem within their portfolio; or 2) the ministers themselves acted improperly. There may be instances where political or media pressure leads the Prime Minister to dismiss a minister without these conditions being met, but we shouldn’t be surprised if ministers don’t offer their resignation if they haven’t faced these circumstances.

Justice Brown presents constitutional conventions as being part of the federal common law. While this may sound right to some lawyers and judges, I suspect that most historians and political scientists would strongly disagree. Conventions aren’t law, though they bind institutions and offices. They’re constitutional rules that can be recognized by the courts, but not legal ones that can be enforced by them. Still, that begs the question: if conventions aren’t law, but are constitutional rules, what are they exactly?

A.V. Dicey suggested that conventions are a form of political morality. University College London’s Constitution Unit defines them in similar terms as “rules of good political behaviour.” Another way of capturing this sentiment might be to describe conventions as a type of norm.

I don’t think that this moral understanding makes sense. It renders conventions into a form of constitutional ethics that doesn’t hold when we look at particular conventions. Cabinet solidarity isn’t an ethical consideration, for example. It’s rooted in the political necessity of holding a government together. Likewise, the Crown doesn’t ensure there’s always a first minister because that it’s the proper thing to do, morally speaking. It stems from the requirement that the Crown must act on the advice of a minister who can be held to account by Parliament. To cast conventions as moral considerations is a category mistake. Conventions aren’t ethical rules or moral norms; rather, they’re power regulating and authority modifying mechanisms.

Conventions govern how authority is exercised between and among offices and institutions. In that sense, they do resemble some laws, since statutes and codified constitutions can also dictate how authority is exercised. Acts of Parliament, for instance, can specify what authorities belong to individual ministers, when a power belongs to the Governor-in-Council, and so forth. When convention holds that the Crown acts on advice, it’s doing something similar. It’s ensuring that the authority that belongs with the Crown is actually exercised by another institution or officeholder, such as Cabinet or the prime minister. Indeed, a lot of conventions act as modifiers of formal legal authority. Laws or the constitution may formally empower one institution or office, but the convention ensures that the real authority belongs with another. So, constitutional conventions are better understood as rules that determine how power is exercised and by who. Conventions are thus rules governing relations of power and exercises of authority.

Let’s look at a few more examples. When the Supreme Court found that convention required Parliament to obtain substantial provincial consent to patriate the constitution, this finding meant that the formal power of the federal legislature to act unilaterally was modified and distributed by convention. The convention that the ministry must have the confidence of the Commons to govern provides legislative and democratic control over the prime minister and Cabinet who, technically, are privy councillors who serve at the Crown’s pleasure, not Parliament’s. Cabinet solidarity subjects the individual powers and responsibilities of ministers to the decisions of the Cabinet as a collective. The convention that the Crown must either accept the advice of the first minister or appoint a new one acts as strong check on viceregal discretion.

As rules that govern power relations and exercises of authority, conventions must be binding if they’re going to be effective. That’s why showing that a rule is binding is one of the tests to establish whether it’s a veritable convention. As I’ve discussed at length here, when a non-legal rule isn’t binding, it’s better described as a practice –something we’re doing but aren’t required to do— rather than a convention. Holding Commons votes on military deployments is a good example. Governments do it when they think it serves their interests, but they aren’t required to hold these votes.

Conventions also need well-established and consistent precedents. The rule needs to be followed consistently over time. That consistency not only contributes to the binding nature of conventions, but it further differentiates them from practices. A practice that’s applied inconsistently probably won’t become a binding convention, whereas a practice that’s consistently applied will probably cement into a convention at some point. Indeed, most conventions began as practices that dealt with a particular institutional challenge or development. The convention of ministerial responsibility, for example, started as a way to find fault with the Crown’s actions without ascribing error to malice to the Sovereign, who could do no wrong.

Binding and precedent aren’t enough, though. There are other rules that are considered binding by tradition, but that aren’t conventions. These are customs. It’s custom, for instance, that the Crown doesn’t enter the lower house in bicameral Westminster-style legislatures. It’s a tradition we follow. Unicameral legislatures in a Westminster-style legislature can’t follow that custom, while also having the Crown’s representative read a throne speech in Parliament. So, they ditch the custom and have the Crown’s representative address the lower house. This isn’t a big deal because customs lack, or have lost, a third attribute of conventions: a reason for the rule. In past centuries, the Crown was kept out of the Commons because the Sovereign represented a threat the independence and deliberations of the lower house (see Charles I’s attempt to arrest five members of the Commons in 1642). Once the Crown acted solely on the advice of a Cabinet that mostly sat in the lower house, there was no longer any reason for the rule. It was downgraded to a custom, as a result.

The reason for the rule gets at the heart of why we still have conventions. Unlike law, conventions are supposed to be flexible and to evolve organically. They’re meant to be rules that are negotiated between institutions and offices as political realities and constitutional principles evolve. Conventions must be able to bend when we see an exception to the rule, and they need to change when political aspirations develop. As importantly, these negotiations are inherently a function of constitutional politics, not law. The institutions and offices whose relations are governed by convention, such as the Crown, Cabinet, houses of Parliament, orders of government, have one foot squarely in the political constitution. Conventions arose to allow the operation of the political constitution to have binding, yet flexible, rules that could evolve to meet new political constitutional expectations and give effect to emerging constitutional principles. Hence, the conventions of responsible government gradually developed alongside the expanded power and influence of Parliament in the 18^th and 19^th Century, and they later gave expression to the constitutional principle of democracy, notably by making the elected lower house the locus of governing legitimacy. Current practices, such as gender parity within Cabinet, may jell into conventions, too, in light of political expectations around gender equality and the possible emergence of a constitutional principle of equitable representation.

Conventions, however, could cease to serve as a path for gradual constitutional evolution if they become a kind of ‘soft law’ in the eyes of the court. Treating conventions as judicially defined rules creates a risk that they will be interpreted rigidly and allowed to ossify. Courts may be tempted to see conventions as fixed, rather than in flux. This problem is compounded by the fact that political actors may not view conventions as rules that they’re supposed to define and negotiate. If conventions are treated as yet another set of rules that fall under the purview of the courts, political actors may no longer understand that they themselves are supposed to negotiate and enforce them.

In truth, we’re probably past that point in Canada. Few politicians appreciate that Canada has a political constitution and they increasingly see judges as the sole arbiters of constitutional disputes. In this context, it’s not surprising that judges are reimagining convention as a kind of quasi law. This process has been accelerated by the tendency of political actors to see themselves as partisans above all. When political actors fail to prioritize their institutional roles over partisan sparring, we lose the ability to enforce conventions through political processes. To bring it back to where we started, the government’s failure to appoint enough judges should be the subject of parliamentary committee hearings, inquiries, and motions. Even if the Commons is too preoccupied with other topics, we should expect the Senate to step up and grill the government on this question until the situation improves. Instead, parliamentarians seem fine with leaving the matter to the courts, and judges understandably feel that they should intervene, since nobody else seems to care. 

We shouldn’t be surprised, therefore, if the courts eventually reshape conventions into rules that they can enforce. If political actors are no longer interested in negotiating or enforcing conventions, judges will fill the vacuum.  

                  in our Westminster system of government, the executive — like the judicial and legislative branches — also requires certain spheres of confidentiality to fulfill its constitutional role. Each of the executive, legislative branch, and judiciary play “critical and complementary roles in our constitutional democracy” and “each branch will be unable to fulfill its role if it is unduly interfered with by the others” (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29). Thus, constitutional conventions flow from the separation of powers and protect the spheres of confidentiality needed for a government institution “to perform its constitutionally-assigned functions” (British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506 (B.C. Judges), at para. 66). Just as legislative privilege protects the ability of elected representatives to act on the will of the people (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687), and deliberative secrecy preserves the independence of the judiciary (MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 830-31), Cabinet confidentiality grants the executive the necessary latitude to govern in an effective, collectively responsible manner (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 15). Cabinet secrecy is “essential to good government” (ibid.), as it promotes deliberative candour, ministerial solidarity, and governmental efficiency by protecting Cabinet’s deliberations (B.C. Judges, at paras. 95-97; Carey v. Ontario, [1986] 2 S.C.R. 637, at pp. 658-59).   

These findings align with earlier cases on parliamentary privilege, such as New Brunswick Broadcasting and Vaid, which held that the branches of the states must be able to fulfill their essential functions without improper interference from the other branches. Preventing the branches from autonomously performing their essential functions would undermine their “dignity” and “efficiency.”  While the Canadian separation of powers doctrine isn’t akin to the stove-piped checking and balancing between the branches that we find in the United States, it does recognize that each branch has its own sphere of responsibility that the other shouldn’t muck around in.

What does this separation look like in practice? A good example are exercises of the Crown’s prerogative powers by the executive. When the executive deploys armed forces overseas, it does so under the authority of the prerogative  - the powers that the Crown enjoys in its own right - as recognized by common law. Parliament could displace this prerogative with statute, but it hasn’t. Until the law is changed, the executive can deploy armed forces internationally without consulting Parliament. It also means that Parliament can’t prevent the executive from exercising the prerogative with through motions alone. If Parliament is determined to stop a military deployment, the House of Commons can withdraw confidence in the government, or the houses can try to legislate controls on the prerogative. Yet even these options have limits. The executive can still legally exercise the prerogative for military deployments after confidence has been withdrawn, and the military will be well underway by the time legislation to control the prerogative gets royal assent –if it ever does.

The same holds for executive discretion provided by statute. If Parliament has granted ministers discretionary powers, the legislature can’t suddenly revoke them through a simple vote, no matter how intensely the parliamentarians feel about a decision made under that statutory authority. If the executive has the discretionary authority to act under statute, then Parliament must change the law if it wishes to constrain the government.

Again, the fact that Parliament can legislate away the executive’s discretion shows that we don’t have an American-style separation of powers doctrine. But the process that Parliament must follow to bind the government demonstrates that the mere presence of the ministers in the legislature does not negate the boundaries that exist between the branches. While ministers may choose to back away from a discretionary decision if they face significant opposition in Parliament, it’s important to recognize that this involves a political choice, not a legal obligation.

There’s much more to say here, but I’ll stick to three concluding observations.

First, we haven’t really tested the boundaries of the executive’s constitutional responsibilities in Canada. As the Supreme Court hinted at in Khadr, there may be aspects of government that are so closely connected with the constitutional functions of the executive that they would be protected from undue statutory interferences thanks to sections 9 and 15 of the Constitution Act 1867. Following the logic of Khadr, for instance, it’s possible that the executive power to conduct foreign affairs is afforded a measure of constitutional protection from regular statutes owing to section 9. This would also align with the Court’s emphasis on the need for each branch to perform their core functions with dignity. Given the executive’s dominant role in the legislative process in Canada, we’ll likely never see a case that addresses whether sections 9 and 15 shield certain executive powers from statutory intrusions, but the Court’s language in cases involving the separation of powers suggests that it’s possible.

Secondly, as the Supreme Court’s majority judgement in Mikisew makes clear, the fact that ministers sit in Parliament does not erase the boundaries between the legislature and the executive in law. Bagehot’s observation that the legislature and the executive are fused in Westminster systems refers to the operation of the political constitution, not the legal one. Fusion-talk should be set aside when we’re dealing with legal questions.

Finally, I was motivated to write this post by recent events in Britain, where conservatives have insisted that there is no separation of powers in the United Kingdom. This insistence has come up in light of government legislation seeking to change the Supreme Court’s finding that Rwanda is not a safe country for refugee deportations. Critics of the government have argued that using legislation to make Rwanda a safe country violates the separation of powers between Parliament and the courts. It’s in this context that conservatives have denied that the United Kingdom has a separation of powers.

While I get what the conservatives are saying, it’s not that clear cut. As we saw in 2019, the British constitution doesn’t work well when the lines between the branches are blurred. In that instance, Parliament attempted to usurp executive decisions and the Fixed-Term Parliaments Act prevented the government from dissolving the legislature in response. This led to a complete shambles that required a circumvention of the Fixed-Term Parliaments Act to fix. Conservatives who deny that there is a separation of powers in Britain would do well to remember this episode. The United Kingdom isn’t the United States, but that doesn’t mean that the three branches don’t have core functions that they should be permitted to fulfill with a degree of autonomy and deference.

As Justice Mosley’s ruling in the Federal Court case highlights, the invocation of the Emergencies Act should be a measure of last resort. Other laws, be they federal or provincial, should be exhausted before the Emergencies Act is used. In the case of the Convoy, Mosley found that provincial laws could have dealt with the protest in Ottawa, which means that the Emergencies Act shouldn’t have been invoked. The fact that the Ontario government chose not to act didn’t justify the federal government’s recourse to the Emergencies Act.

After reading the judgement, it appears that the federal government isn’t well placed to deal with breakdowns of public order if provinces refuse to act. In fact, it seems like the federal government must wait for the provinces to do something if they have the legal authority to deal with a significant public order problem. Unless there is a violation of a federal law, such as the Criminal Code, Ottawa seems hamstrung.

That seems odd, doesn’t it? Unfortunately, the Emergencies Act has probably supplanted another legal authority that the federal government could have used to deal with breakdowns of public order: the Crown prerogative.

In the 1989 case, R v Secretary of State for the Home Department, ex parte Northumbria Police Authority, the Court of Appeal of England and Wales considered whether the British Home Secretary had the authority to supply crowd control equipment, including riot control gas, to police. The Northumbria Police challenged the Home Secretary’s authority to do so without their consent, arguing that this was beyond the Home Secretary’s powers over the police and the provisions of the Police Act 1964 and Local Government Act 1985. The court sided with the Home Secretary. While statute didn’t empower the Home Secretary to act, the Crown prerogative did.

As powers that the Crown has in its own right as recognized by common law, the prerogative provides the executive with various authorities, including the power to wage war and defend the realm, command and deployment of armed forces, negotiate and ratify treaties, and administer justice. Lord Justice Croom-Johnson held that “I have no doubt that the Crown does have a prerogative power to keep the peace, which is bound up with its undoubted right to see that crime is prevented and justice administered.” Lord Justice Nourse agreed. He noted that when looking at the war prerogative, “it is natural to suppose that it was founded, at least in part, on the wider prerogative of protection…the wider prerogative must have extended to unlawful acts within the realm as to the menaces of a foreign power.” Hence, “There is no historical or other basis for denying to the war prerogative a sister prerogative of keeping the peace within the realm.”

Given that the Canadian Crown inherited the war prerogative from the British Crown, there’s a strong case that Canada also inherited prerogative to keep the peace. Similarly, if the prerogative to keep the peace flows from the power to administer justice, then the Canadian Crown would have this power as well. The question is whether this prerogative belongs to the federal Crown or the provincial Crowns.

Since the prerogative in Canada is divided according to the legislative competencies outlined in sections 91 and 92, we need to find the hook for it there. If the hook is in section 91, then it belongs to the federal Crown, and if it’s in section 92, then the provincial Crown.  One could argue that, if the prerogative to keep the peace flows from the administration of justice, then it belongs with the provincial Crowns. If, however, the prerogative to keep the peace is connected with the war prerogative, then it belongs with the federal Crown. The fact that section 91 allows the federal Parliament to legislate for “Peace, Order, and Good Government” reinforces this interpretation, as does the fact that federal Parliament legislated for public order emergencies in the Emergencies Act.

The federal government, therefore, arguably had a power to keep the peace and protect public order under the Crown prerogative. This would have been a narrow authority, but one that would arguably have enabled the federal government to restore public order if a province was unwilling or unable. Using Lord Justice Nourse’s logic, denying this power to the federal government would have been akin to deny it the authority to deal with foreign threats to Canada.

The Emergencies Act, however, has probably put this prerogative in abeyance. The Act binds the Crown, provides for public order emergencies, and sets out strict criteria for how it can be exercised. This suggests that Parliament’s intent was that the Emergencies Act would be the federal government’s authority to deal with breakdowns of public order.

On the other hand, it’s notable that the Emergencies Act empowers the federal government to deal with war emergencies, yet there is no suggestion that it has displaced the war prerogative. The federal government can engage in armed conflict without invoking a war emergency under the Emergencies Act, which implies that the prerogative can still be used when the Act’s threshold hasn’t been met or its exceptional powers aren’t necessary. If that’s the case, then maybe the prerogative to keep the peace is still operative and could be used to deal with breakdowns of public order that don’t meet the criteria set out in the Emergencies Act.  

Would a federal government ever dare to rely on the Crown prerogative to address a public order crisis? Probably not. As Alberta’s intervention in the Federal Court case suggests, the provinces would strongly oppose a federal intervention into a public order problem that doesn’t amount to a national emergency. Unless there are violations of federal law, the provinces would argue that public order falls under their jurisdiction. If the federal government did act under the Crown prerogative, furthermore, it would quickly find itself before the courts, with critics arguing that there never was a prerogative to keep the peace in Canada, and if this prerogative did exist once, the Emergencies Act has supplanted it.

Suffice to say, this leaves us in a tough spot. The provinces are expected act when a public order crisis doesn’t meet the thresholds set out in the Emergencies Act. Yet, as the 2022 Convoy shows, the provinces can refuse to act. This doesn’t seem to be an acceptable situation and it suggests that the federal government is prevented from fulfilling a basic state function.

So, what’s the solution? We could do nothing and hope that provinces have learned that they must act. Alternatively, the federal Parliament could pass a public order act to address situations that don’t meet the requirements of the Emergencies Act. Interestingly, the United Kingdom passed a Public Order Act last year that we could mimic. Politically, though, a federal public order act would be controversial. There would be opposition from across the political spectrum and the federation. The federal government would need to be quite bold to table this kind of legislation. How likely is that?

I can’t help but conclude with a few thoughts about what all this tells us about the Crown prerogative. Flexibility and discretion are the key advantages of the prerogative. This power gives the executive the nimbleness to act in novel situation. The prerogative can also fill the gaps left by statute, allowing the executive to act in contexts that Parliament didn’t anticipate. These are the primary reasons why governments are loathe to abandon the prerogative as a source of authority.

The Emergencies Act, furthermore, highlights the risks associated with displacing the prerogative.  The high thresholds provided in the Act were meant to ensure that it would be a last resort. This made sense when the Act was passed, since provincial laws could handle local disturbances. In a pinch, the provinces could also rely on the aid of civil power provisions of the National Defence Act, which allows them to call out the Canadian Armed Forces to deal with riot or disturbance that they can’t handle. So, the Emergencies Act could have high thresholds because there were other tools the provinces could use.

What Parliament couldn’t anticipate was a provincial refusal to act. That’s the kind of unknown that the prerogative is good at addressing, but detailed statutes aren’t. This should give us pause the next time we legislate over the prerogative.