Introduction

i.     Standing Committee on Procedure and House Affairs’ study on the government’s reasons for proroguing Parliament in August 2020

On 28 October 2020, the Honourable Pablo Rodriguez, Leader of the Government in the House of Commons, deposited a report to Parliament with the Clerk of the House, pursuant to Standing Order 32(7).[1] The report, which is entitled Report to Parliament: August 2020 Prorogation – COVID-19 pandemic, outlined the reasons for the prorogation of the First Session of the 43^rd Parliament on 18 August 2020. Under Standing Order 32(7), the report was referred to the House of Commons Standing Committee on Procedure and House Affairs (the Committee) for its consideration.

At the Committee’s first meeting of this Session, on September 28, 2020, a motion proposing preparations for this study was proposed, but it was ruled out of order by the Chair on 6 October 2020.[2] In her ruling, the Chair indicated that since the report outlining the government’s reasons for proroguing was not referred to the Committee or tabled before the House at the time the motion was introduced, conducting a study on the matter was not timely. The Chair further specified that even if one could argue that the study of prorogation was within the Committee’s mandate, and that therefore a subject matter study could be initiated prior to receiving an order of reference from the House, some aspects of the motion consisted an overreach, as some of the documentation requested was not “centrally linked” with the Committee’s mandate. The Chair therefore ruled that the motion, “at this time and in its current form,” was out of order. A motion challenging the Chair’s ruling was subsequently moved and defeated.

On 5 November 2020, the Committee adopted the First Report from the Subcommittee on Agenda and Procedure, which contained the following item of business:

That the committee, upon completion of its study on the conduct of a federal election during the COVID-19 pandemic, initiate a study on the document tabled in the House, pursuant to Standing Order 32(7), and referred to the committee, on the Government’s reasons for proroguing parliament in August 2020. In an upcoming meeting, the Committee schedule a business item to discuss when it will commence this study.[3]

On 10 December 2020, the Committee commenced its study of the government’s reasons for proroguing Parliament in August 2020, pursuant to Standing Order 32(7) and the motion adopted by the Committee on 5 November 2020.

It held nine meetings and heard from 12 witnesses. The Committee wishes to extend its sincere gratitude to the witnesses for their insights and valuable contributions to this study.

ii.   Notable other decisions taken by the Committee for this study

Several notable motions were moved by members of the Committee in relation to this study. These were:

• On 28 January 2021, Ms. Karen Vecchio, the member for Elgin—Middlesex— London, moved that the following witnesses appear before the Committee on this study for at least one hour within 14 days of the approval of this motion: Prime Minister Justin Trudeau; the Hon. Pablo Rodriguez, Leader of the Government in the House of Commons; Katie Telford, Chief of Staff to the prime minister; and Bill Morneau. Further, the Committee reserved the right to invite more witnesses as the study continued. The motion was debated but was not voted upon.
• On 2 February 2021, the Subcommittee on Agenda and Procedure presented its Third Report to the Committee. The report recommended that the following witnesses be invited to appear: Mr. Trudeau; the Hon. Chrystia Freeland; the Hon. Bardish Chagger; Mr. Morneau; Ms. Telford; Ian Shugart; Ian McCowan; Craig Kielburger; Marc Kielburger; Farah Perelmuter; and Martin Perelmuter. This motion overtook the motion moved on 28 January 2021. Invitations were made to all witnesses on 2 February 2021.
• On 23 February 2021, Ms. Vecchio moved a subsequent motion aimed at securing the appearance of the same witnesses. At that time, witnesses whose appearance had been sought by the Committee through its 2 February 2021 motion, had either not responded to the Committee’s request or had declined to appear.[4] As such, the 23 February 2021 motion renewed its invitations to Mr. Trudeau; Ms. Freeland; Ms. Chagger; Mr. Morneau; Ms. Telford; Craig Kielburger; Marc Kielburger; Farah Perelmuter; and Martin Perelmuter. These witnesses were to agree to appear within one week of the adoption of the motion and if not, the Chair was empowered to report the matter to issue a summons, or in the case of members of the House, report the matter to the House of Commons with a recommendation that the Committee be empowered to compel the appearance of each witness within a given period of time. Further, the motion ordered the production of all papers and records (electronic and hard copy) since 25 June 2020, that were related to the August 2020 prorogation from the Prime Minister’s Office and the Privy Council Office. Similarly, the motion ordered the production of all papers and records (electronic and hard copy) since 25 June 2020, from the WE Charity (or its affiliated organizations), Craig Kielburger, Marc Kielburger, or Speakers’ Spotlight, and communications between these individuals and/or entities and the government. These documents were to be published on the Committee’s website in both official languages as soon as practicable. Debate arose on this motion.
• On 25 May 2021, Mr. Daniel Blaikie, the member for Elmwood—Transcona, moved that Ms. Vecchio’s 23 February 2021 motion be amended by replacing paragraph (a) with the following: (a) renew the invitation issued to the prime minister to appear before the committee, provided that if he does not agree, within one week of the adoption of this motion, to appear for at least one hour, the Chair shall be instructed to report to the House forthwith a recommendation that this committee be empowered to order his appearance from time to time; and deleting paragraphs (b) through (h). Mr. Blaikie’s amendment was adopted on 27 May 2021.
• On 27 May 2021, Mr. Stéphane Lauzon, Parliamentary Secretary to the Minister of Seniors, moved that Ms. Vecchio’s amended motion be further amended by replacing the words after “one hour” with the following: the non-attendance of the prime minister be added to an annex to the main report on the study of the “Government’s Reasons for Proroguing Parliament in August 2020.” Debate arose on this amendment.
• On 27 May 2021, Mr. Blaikie moved a sub-amendment to Mr. Lauzon’s amendment, to add the following words after the words “Government’s Reasons for Proroguing Parliament in August 2020”: and that all questions necessary for the finalization and tabling of the report be disposed of before the end of the day on June 8, 2021 and that the final report be tabled no later than June 11, 2021. On 1 June 2021, Mr. Blaikie’s sub-amendment was adopted by the Committee.
• On 3 June 2021, Mr. Alain Therrien, member for La Prairie, moved a sub‑amendment to Mr. Lauzon’s amended amendment to alter the dates. Mr. Therrien’s sub-amendment provided that all questions necessary for the finalization and tabling of the report be disposed of before the end of the day on June 15, 2021 and that the final report be tabled no later than June 18, 2021. Mr. Therrien’s sub-amendment was adopted, as was Mr. Lauzon’s amended amendment, and Ms. Vecchio’s amended motion by the Committee on 3 June 2021.

The Committee also notes that Mr. Trudeau, Ms. Freeland, Ms. Chagger and Ms. Telford did not provide a response to the Committee about their invitation to appear, nor did they appear before the Committee. Mr Trudeau's non-appearance before the Committee is noted in Appendix A. Mr. Morneau, Craig Kielburger, Marc Kielburger, Farah Perelmuter, and Martin Perelmuter declined the invitation to appear before the Committee. The Committee acknowledges that Mr. McCowan subsequently moved onto new responsibilities and Mr. Shugart is on a medical leave (and the Committee wishes him all the best in his recovery).

Lastly, the Committee notes that on 23 February 2021, a motion to follow up on these invitations, as well as to obtain relevant documents, was moved but was subjected to a filibuster until 3 June 2021. The Committee deeply regrets that three-and-a-half months, which could have been devoted to completing this study, and others, was lost to partisan protection for the prime minister.

Background

A.   The Royal Prerogative

The Royal Prerogative is a set of reserve powers held and exercised by the Crown. These powers are accorded to the Crown by the common law and are a branch of the common law, as decisions of the courts have determined their existence and extent.[5]

Historically, the British monarchs possessed the powers that were required to preserve the realm against external foes. The prerogative powers of the Crown were exercised by the reigning monarch in accordance with his or her own discretion. Over the passing of time, it became established that the bulk of the prerogative powers could only be exercised through and on the advice of ministers responsible to Parliament. Despite centuries of development of constitutional monarchy, the Royal Prerogative remains an integral part of the Westminster parliamentary system.

There is no single accepted definition of prerogative powers, nor does an exhaustive list of powers exist. It is accepted that the Crown cannot invent new prerogative powers. Further, Parliament can override and displace a prerogative by statute or, in certain possible cases, by constitutional amendment.[6]

B.   Origin of prorogation and its use in Canada’s Parliament

The Committee heard that the power to prorogue Parliament was first used in 1530 in England.[7] It was noted that the concept of prorogation did “not derive from the most noble of intentions.”[8] Prior to 1530, the British monarch summoned Parliament when supply (i.e., public money) was needed, after which Parliament was dissolved. However, every time Parliament was dissolved, its membership changed.

In 1530, King Henry VIII invented the concept of prorogation and used it as an alternative to dissolution in order to retain the membership of a Parliament that was supportive of his proposals. Rather than dissolving Parliament and dismissing its members, prorogation allowed the same members of Parliament to once again be summoned.[9]

Prorogation is derived from the common law prerogative powers held by the Crown under the Westminster model of parliamentary government.[10] At the time of Confederation in 1867, the power of the Queen, through her representative, the Governor General, to prorogue Parliament was implicitly included in Canada’s Constitution, which pursuant to the preamble of the Constitution Act, 1867, is “similar in Principle to that of the United Kingdom.” In addition, section 38 of the Constitution Act, 1867, states:

The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons.[11]

In 1947, the Letters Patent Constituting the Office of Governor General of Canada recognized the power of the Governor General to prorogue Parliament:

And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada.[12]

However, the procedure and practice surrounding the power to prorogue Parliament are not explicitly laid out in either the Constitution or in federal statute. Prorogation is a prerogative act belonging to the Crown which, as with any other prerogative of the Crown, is exercised based on constitutional conventions.

In matters pertaining to the use of a prerogative power, by convention, the Governor General retains his or her reserve powers. The act of prorogation, including at which date a prorogation is to occur, and its duration, is exercised by the Governor General on the advice given by the prime minister. The ability to advise the Governor General directly on prorogation is a special prerogative of the Prime Minister.[13] With respect to the duration of a prorogation, the Committee heard that the only legally imposed time limit is one year, as provided for by section 5 of the Constitution Act, 1982.[14] By ancient custom, Parliament is typically not prorogued for more than 40 days at a time, though prorogation may be renewed.[15]

As a matter of constitutional principle, a Governor General is required to follow the advice of a prime minister who enjoys the confidence of the House of Commons.[16] In turn, under the concept of responsible government, the prime minister, as the head of government, takes responsibility for the decisions of the Governor General that follow the prime minister’s advice. In Canada, there has never been a case in which a Governor General has refused a prime minister’s request for a prorogation.[17]

In practical terms, the process for prorogation in Canada begins when the prime minister signals to the Privy Council Office (PCO) that it is the government’s intention to prorogue and the Governor General is made aware that a formal request will be forthcoming. PCO seeks formal direction from the prime minister about the date the current parliamentary session will end and the date of the new parliamentary session. Once these dates are communicated to PCO, it drafts an instrument of advice and a proclamation for the Governor General's approval. Once the proclamation is approved by the Governor General, it is published in the Canada Gazette.[18]

The Committee heard from one witness that the powers and rules surrounding prorogation ought to be legally codified and made enforceable by the courts.[19] However, another witness told the Committee the unwritten Constitution is a great strength of the Canadian system.[20]

C.    Effects of prorogation on parliamentary business

The effects of a prorogation on parliamentary business are wide-reaching. In the House of Commons, all proceedings pending at the time come to an end, including all sittings, bills and motions, sessional orders, resolutions, and committee business and membership (with the exception of the membership of the Standing Committee on Procedure and House Affairs).

Only a small circumscribed set of parliamentary business carries over from session to session. Documents requested by an order of the House or addresses to the Governor General survive prorogation, provided they were not tabled in the House prior to prorogation. Requests for government responses to committee reports and petitions also survive prorogation.

Further, private members’ bills and motions are reinstated at the stage of consideration where the bill or motion had been at the time of prorogation. For example, a private member’s bill that had received its first hour of debate at third reading at the time of prorogation, would be restored to the third reading stage in the new session.

D.   Brief overview of selected past prorogations at the federal Parliament

At Canada’s federal Parliament, prorogations have been a regular feature of the parliamentary cycle since Confederation. The Committee heard that, viewed from a historical perspective, prorogations had seldom attracted much attention and the term prorogation was not part of the general public’s vocabulary.[21] Instead, prorogations were understood as a routine procedure to end a parliamentary session. At the same time, the Committee also heard that the exercise of the power of prorogation nearly always takes place in a “very political context because it's a political move.”[22]

The number of prorogations that occur during the lifespan of a Parliament has varied since Confederation (please consult Appendix B for more information on all past prorogations of Canada’s Parliament). There have been occasions when the duration of a Parliament featured as few as no prorogations and as many as seven. The Committee heard that, in historical terms, about four sessions per Parliament was the norm.[23]

In terms of the length of a prorogation, the Committee heard that, in historical terms, the average length has been about 40 days.[24] However, over the past several decades, the length of prorogations has varied. The Committee heard that, for example, in 2002, the prorogation between the 1^st and 2^nd sessions of the 37^th Parliament lasted 14 days; in 2007, the prorogation between the 1^st and 2^nd sessions of the 39^th Parliament lasted 32 days; and in 2009, the prorogation between the 2^nd and 3^rd session of the 40^th Parliament lasted 63 days.[25] The Committee was told that the length of a prorogation depended on the circumstances of the day.

During its study, witnesses brought to the Committee’s attention certain examples of prorogations that were considered historically noteworthy. These were:

1873 (3^rd Parliament, prorogation between 1^st and 2^nd session) – Prime Minister Sir John A. Macdonald requested and received a prorogation from Governor General Lord Dufferin when facing a loss of support in the House of Commons during a political scandal that would be dubbed the Pacific scandal.[26] The Committee heard that the 1873 prorogation ended a committee inquiry into the matter but that the controversy over the scandal resumed during the subsequent parliamentary session. Sir John resigned a few weeks after Parliament resumed.[27]

2002 (37^th Parliament, prorogation between 1^st and 2^nd session) – Prime Minister Jean Chrétien requested and received a prorogation from Governor General Adrienne Clarkson at a time when details were emerging of a political scandal that would be dubbed the sponsorship scandal.[28] The prorogation prevented a report from the House of Commons Standing Committee on Public Accounts on the sponsorship scandal from being presented in the House.[29]

2003 (37^th Parliament, prorogation between 2^nd and 3^rd session) – Mr. Chrétien prorogued Parliament until February 2004. This delayed the tabling of the Auditor General’s report on the sponsorship scandal, which was due to be tabled that November, until after Mr. Chrétien left office.[30]

2008 (40^th Parliament, prorogation between 1^st and 2^nd session) – Prime Minister Stephen Harper requested and received a prorogation from Governor General Michaëlle Jean in December 2008. The prorogation occurred at a time when a global financial crisis had recently begun. However, the prorogation also enabled the government to postpone a non-confidence vote in the House that was being sought by The Liberal Party, the New Democratic Party, who had proposed a coalition, and the Bloc Québécois, who had agreed to support the coalition under a supply and confidence agreement. It was noted that the Governor General granted the request for prorogation but only after several hours of reflection.[31] By the time the House resumed sitting in January 2009, the opposition coalition had collapsed. One witness referred to these circumstances as being driven by a breakdown in good governance within the Liberal caucus.[32]

2010 (40^th Parliament, prorogation between 2^nd and 3^rd session) – Prime Minister Harper requested and received a prorogation from Governor General Michaëlle Jean, from January 2010 to March 2010. The reason for the three-month duration of the prorogation was to allow Parliament to recess for the Winter Olympics in Vancouver. However, the prorogation also postponed the examination by the House of Commons Special Committee on the Canadian Mission in Afghanistan into alleged mistreatment of Afghan detainees while in custody.[33]

E.    Historical reasons for proroguing Parliament

During its study, witnesses told the Committee that there were a variety of reasons why a prime minister and the government would request a prorogation of Parliament. It was noted that there is no constitutional need for a prorogation to occur during the lifespan of a Parliament.[34]

The Committee heard the following reasons why prorogation occurs:

• Prorogation is a political act done for political reasons. However, political reasons for political decisions are perfectly legitimate.[35]
• Prorogation ends all parliamentary proceedings and resets the parliamentary agenda. As such, the effect of prorogation is what really matters.[36]
• Prorogation provides the government with an opportunity to reset its legislative agenda and deliver a Speech from the Throne. It is also a tool used by the government to protect itself and can be seen as a delay tactic.[37]
• Prorogation can be used to avoid or delay a vote of no-confidence; reset committees that are mounting inquiries that are politically harmful to the government; and avoid or delay parliamentary proceedings employed to hold government to account.[38]
• The government may want to prorogue Parliament when there is a change of a ministry within a Parliament, so that the new government can clear the slate of legislation and lay out its agenda.[39]
• Parliament may have been in a parliamentary session for an extended period of time and the government wishes to start afresh; a significant event could compel the government to pursue a new slate of legislative measures; or a government may wish to put forth a new parliamentary agenda in anticipation of a general election.[40]
• It can be used as a reset mechanism when the government is unable to proceed with its agenda in a deadlocked Parliament. A pause in parliamentary work may allow passions to subside and a reasoned debate to take place after prorogation.[41]
• The reasons given for a prorogation can have a narrative that is both political in nature and about policy planning. The two are not mutually exclusive.[42]
• A prime minister holds the power to advise prorogation and from a constitutional perspective, the reasons for prorogation do not have to be good reasons. However, prorogations can elicit a public response and it is up to the public to determine whether they accept the government’s version of its reasons for prorogation.[43]

F.    Past study on prorogation by the Standing Committee on Procedure and House Affairs

The Committee has previously studied prorogation and its role in the parliamentary cycle. On 11 March 2010, the Committee adopted the following motion:

That, pursuant to Standing Order 108(3)(a), the Committee undertake an immediate study of all relevant issues pertaining to prorogation, including the circumstances in which a request that Parliament be prorogued would be appropriate or inappropriate, and the nature of any rule-changes (either by way of the Standing Orders or legislation or both) that may be necessary to avoid any future misuse of prorogation.

The Committee held 10 meetings and heard from 16 witnesses, including the then-Law Clerk and Parliamentary Counsel, legal and constitutional scholars, and witnesses with backgrounds in politics and parliamentary procedure. No report was adopted by the Committee on the 2010 study.

G.   New Standing Order 32(7)

On 20 June 2017, the House of Commons adopted a motion to amend its Standing Orders. Among the changes made to the Standing Orders was the addition of new Standing Order 32(7). It reads:

Not later than twenty sitting days after the beginning of the second or subsequent session of a Parliament, a Minister of the Crown shall lay upon the Table a document outlining the reasons for the latest prorogation. This document shall be deemed referred to the Standing Committee on Procedure and House Affairs immediately after it is presented in the House.

No such obligation upon Cabinet had existed, either in Canadian federal law or House of Commons procedure, prior to the creation of Standing Order 32(7).

The 42^nd Parliament was dissolved on 11 September 2019 without having prorogued. The first prorogation since Standing Order 32(7) was created occurred on 18 August 2020. Following this prorogation, Parliament met on 23 September 2021. On 28 October 2020, the first report under Standing Order 32(7) was tabled in the House of Commons.

H.   Summary of the government’s Report to Parliament: August 2020 Prorogation – COVID-19 pandemic

On 28 October 2020, within the required 20 sitting days, the government tabled a report in the House of Commons entitled, Report to Parliament: August 2020 Prorogation – COVID-19 pandemic (please see Appendix C for the complete report). The report indicated that the government prorogued the First Session of the 43^rd Parliament on 18 August 2020 to reset the government’s approach for recovery from the damaging social and economic effects of the COVID-19 pandemic and obtain the confidence of the House following a Speech from the Throne.

The report contains six sections: Introduction, The COVID-19 Pandemic, Prorogation, Speech from the Throne, Moving Forward, and Conclusion. A summary of these sections is provided below. Further, the report has two annexes: the transcript of Prime Minister Justin Trudeau’s address to Canadians on prorogation delivered on 18 August 2020, and the transcript of the Speech from the Throne delivered by Her Excellency the Right Honourable Julie Payette on 23 September 2020.

While the Committee does not endorse the report’s contents as a complete accounting of the reasons for prorogation, it is summarized below for the benefit of the reader since the government has not made the report easily accessible to the public.

i.     Introduction

The report states that new Standing Order 32(7) was introduced in 2015 to ensure future federal governments remain transparent in governance, including the use of prorogation. To that end, the report was intended to provide greater clarity to the August 2020 prorogation. It notes that the Speech from the Throne delivered in December 2019 received the confidence of the House. The speech contained commitments important to the government, such as net-zero emissions by 2050; legislating the implementation of the United Nations Declaration on the Rights of Indigenous Peoples; furthering free and fair trade, and investing in affordable housing across the country. However, the report indicated that the COVID-19 pandemic had changed the context for governing by summer 2020.

ii.    The COVID-19 Pandemic

The report states that on 11 March 2020, the World Health Organization declared COVID-19 to be a global pandemic. It provides data on the damaging effects that Canada’s economy experienced in spring 2020 as a result of the pandemic.[44]

In response to the pandemic, the government introduced a series of emergency programs in spring 2020 to “mitigate the harm to Canadian families and businesses alike.”[45] The report provides information on these programs, including the Canada Emergency Response Benefit; a Goods and Services Tax credit; financial assistance programs aimed at seniors, disabled people, Indigenous people and students; financial relief measures for small, medium and large businesses as well as Canada’s six Regional Development Agencies; and a federal funding agreement with the provinces and territories.

The report notes that during the summer months in 2020, Canadians had slowed the spread of COVID-19, and the peak number of people requiring care was reduced.

However, by August 2020, infection rates began to rise once more in some provinces. The report states that public health officials had made it clear that a “second wave” of increased pandemic cases would occur during the colder months that would follow. As such, the government decided to develop and put in place a plan to address the second wave and to ensure it continued to hold the confidence of the House.

iii.   Prorogation

The report indicates that on 18 August 2020, the prime minister addressed Canadians about prorogation. He stated that the 2019 Speech from the Throne made no mention of COVID-19; that following the 2020 prorogation, Parliament would meet the same week in September 2020 that it had been previously scheduled to meet; that the government needed to reset its approach for recovery by presenting an ambitious plan to Parliament; and that this plan needed to gain the confidence of the House.[46]

The report provides information about the elements of the government’s plan to address the second wave. These elements included increasing funding for schools, widening accessibility to the Employment Insurance program and securing vaccines. The report states that in preparing the plan, the government’s efforts up to that date were assessed and consultations were held with community leaders, labour groups, employers and individuals.[47]

iv.   Speech from the Throne

The report notes that on 6 October 2020, the Address in Reply to the Speech from the Throne was adopted by the House.

v.     Moving Forward

The report notes that, regrettably, the second wave of COVID-19 infections was underway at the time of its tabling in the House. It gives a brief overview of the detrimental effects of this second wave on people’s health, including vulnerable communities, and the temporary re-closing of businesses.

The report indicates that the government wanted to ensure that it held the confidence of the House to deliver the support that Canadians expect, and that the government will continue to work with Parliament to deliver its plan.

vi.   Conclusion

The report states that in August 2020, it was clear to the government that it needed “to reset the agenda and obtain the confidence of the House, in order to move forward.”[48] Having garnered the confidence of the House, the government considered its job to be that of following through on the commitments it made during the Speech from the Throne.

vii.  Shortcomings of the report

The Committee, however, notes that when Allen Sutherland, Assistant Secretary to the Cabinet, was asked if the report was “100% accurate,” he demurred and answered: “I’m not in a position to comment on the report. It was tabled. It’s the government’s reasons.”[49]

In particular, the Committee notes that many aspects of the political and governing context were completely missing from the report, including the four committee investigations of the WE Charity scandal, the resignation of the Minister of Finance the night before prorogation, the tabling of thousands of heavily-redacted documents on the WE Charity scandal with the House of Commons Standing Committee on Finance minutes before prorogation, the Cabinet shuffle simultaneous with prorogation, and a document production order by the House of Commons Standing Committee on Access to Information, Privacy and Ethics, which could have been very damaging politically to the prime minister, was due the day following prorogation.

I.     Chronological overview of key events related to the Canada Student Service Grant’s development

The Committee reproduces here a table originally included in the second report of the House of Commons Standing Committee on Access to Information, Privacy and Ethics entitled Questions of Conflict of Interest and Lobbying in Relation to Pandemic Spending. Additional dates were included in the Table 1 by the Committee.

Table 1—Key Events in the Development and Award of the Canada Student Service Grant Prior to the Committee’s Study

Date	Event
October 2007 to September 2017	Justin Trudeau participates in eight WE Day events. He is not paid for these appearances.
February 2012 to May 2020	Sophie Grégoire-Trudeau participates in eight WE Charity events, receiving a one-time speaking fee of $1,500 in 2012. She has $24,000 in expenses covered and receives $240 in gifts. Ms. Grégoire-Trudeau volunteers with WE Charity as an “ambassador and ally” from 2018 onward; this work is cleared by the Conflict of Interest and Ethics Commissioner.
June, December 2017	Then-Minister of Finance Bill Morneau, his wife and his daughter travel to Kenya in June 2017 to learn about WE Charity school projects and, in December 2017, to Ecuador to help build WE Charity schools. Minister Morneau states that WE Charity did not issue receipts for the incurred expenses related to the organization’s programming, which the minister intended to pay for personally. WE Charity later claims it conveyed those expenses orally to Minister Morneau’s staff.
April 2018 and June 2020	Minister Morneau’s wife makes two donations to WE, each in the amount of $50,000.
March 2020	WE Charity begins to lay off employees, anticipating financial difficulties during the pandemic; 197 of its 390 employees are laid off.
Early April 2020	WE Charity replaces all but one Canadian board member and two United States board members.
5 April 2020	The Prime Minister and Minister Morneau discuss student support measures, identifying the Canada Service Corps and Canada Summer Jobs program as potential vehicles.
6 April 2020	The Prime Minister announces upcoming student supports.
7 April 2020	Mary Ng, Minister of Small Business, Export Promotion and International Trade, calls Mr. Craig Kielburger of WE Charity expressing a desire to help young people start small businesses.
9 April 2020	Mr. Craig Kielburger sends Minister Ng an existing proposal for a youth entrepreneurship program. This document is circulated to at least 17 ministers, ministerial staff and senior officials.
10 April 2020	In an email from Mr. Craig Kielburger to Minister Morneau, Mr. Kielburger states that Minister Ng suggested submitting a proposal to scale WE Charity’s youth entrepreneurship program to mitigate the economic struggles related to the pandemic.
16 April 2020	In an email discussion that included officials from the Department of Finance Canada (Department of Finance) and ESDC, Rachel Wernick, Senior Assistant Deputy Minister, Skills and Employment Branch at ESDC and Michelle Kovacevic, Assistant Deputy Minister for the Federal–Provincial Relations and Social Policy Branch at the Department of Finance Canada, discuss potential federal and third-party organizations to deliver a student support program. Ms. Wernick raises the idea of volunteer matching for a tuition credit through an organization such as WE Charity.
17 April 2020	Mr. Craig Kielburger and Sofia Marquez, then responsible for government and stakeholder relations at WE Charity, call Bardish Chagger, Minister of Diversity and Inclusion and Youth, to discuss WE Charity’s social entrepreneurship proposal.
18 April 2020	During a briefing, officials raise to Minister Morneau that the CSSG might require a third-party administrator, and raised WE Charity, among other organizations, as examples of groups doing similar work. WE Charity’s entrepreneurship proposal is appended to his briefing materials.
19 April 2020	Ms. Wernick calls Mr. Craig Kielburger and outlines the broad parameters of a youth service program being developed. Mr. Craig Kielburger also describes the initial youth entrepreneurship proposal that he sent earlier to Minister Ng.
19 April 2020	ESDC sends WE Charity’s entrepreneurship proposal to Ms. Kovacevic, who forwards it to Amitpal Singh, Senior Policy Advisor at the Office of the Minister of Finance. This proposal is included as an annex in that evening’s briefing package to Minister Morneau, without recommendations or analysis.
20 April 2020	Mr. Singh contacts WE Charity to discuss its ability to deliver volunteer opportunities. He states in an email to government colleagues that WE Charity is willing to rework its 10‑week summer proposal to meet the government’s policy objective of national service. Mr. Singh makes no promises to WE Charity but, that same day, suggests that colleagues should “bring [WE Charity] into the fold” following policy approvals.
20 April 2020	Ms. Marquez emails an ESDC official with a summary of her and Mr. Craig Kielburger’s 17 April 2020 call with Minister Chagger. The summary states that Minister Chagger expressed interest in adapting the entrepreneurship proposal submitted to Minister Ng and that she suggested opening a service-stream for youth. Ms. Marquez expresses willingness to amend WE Charity’s proposal if given the right policy objectives.
20 April 2020	An email from Ms. Kovacevic to an undisclosed recipient indicates that the Prime Minister’s Office (PMO) has been weighing in on the version of WE Charity’s proposal sent to the Minister of Finance on 18 April 2020. The Prime Minister later stated that his staff had worked with the PCO and other departments and that they knew WE Charity was under consideration. However, he never spoke with his staff about WE Charity’s involvement until 8 May 2020.
21 April 2020	Minister Morneau verbally approves the broad parameters of the CSSG and the potential involvement of a third party. He later stated that no third party was chosen at that time. Without ministerial approval, Mr. Singh directs Ms. Kovacevic to include $12 million for WE Charity’s social entrepreneurship proposal in a decision document for Minister Morneau.
22 April 2020	The Prime Minister announces that a $912 million CSSG would be launched.
22 April 2020	After the Prime Minister’s announcement, Mr. Craig Kielburger shares a second proposal for a student service program with various ministers, ministerial staff and senior officials. Ms. Marquez later recalled that the proposal was based on broad parameters and guidelines Ms. Wernick shared with Mr. Kielburger on 19 April 2020.
23 April 2020	The Department of Finance and ESDC discuss the possibility of WE Charity offering virtual volunteer placements and potentially administering the CSSG.
24 April 2020	Ms. Kovacevic and Ms. Wernick call Mr. Kielburger and Ms. Marquez to discuss WE Charity and its capacity. The only commitment ESDC makes is to follow up with WE Charity.
24 April 2020 to 1 May 2020	ESDC, Department of Finance and Minister of Finance staff discuss WE Charity’s proposal, including with WE Charity staff, to develop a CSSG framework proposal.
5 May 2020	Minister Chagger presents the CSSG proposal to the Cabinet Committee on the Federal Response to the Coronavirus Disease, including the public service’s recommendation that WE Charity administer the CSSG.
8 May 2020	The Prime Minister learns that the public service recommended WE Charity. He removes the CSSG from that day’s Cabinet discussions and requests further due diligence from the public service to ensure WE Charity is the best or only organization to administer the CSSG.
22 May 2020	Cabinet ratifies the CSSG, contingent on final funding approval, including the participation of WE Charity. Neither the Prime Minister nor Minister of Finance recuse themselves from this decision.
3 June 2020	Minister Morneau gives final approval on the revised CSSG funding decision.
23 June 2020	The WE Charity Foundation signs the CSSG contribution agreement with ESDC, backdated to 5 May 2020.
25 June 2020	The Prime Minister announces the selection of WE Charity to administer the CSSG.
3 July 2020	WE Charity announces its withdrawal from the CSSG and passes operational responsibilities to the federal government.
3 July 2020	Mario Dion, Conflict of Interest and Ethics Commissioner, commences an examination into the Prime Minister’s possible contraventions of sections 6(1), 7 and 21 of the Conflict of Interest Act (the Act).
13 July 2020	The Prime Minister and former Minister of Finance each apologize for not recusing themselves from Cabinet discussions about awarding WE Charity the CSSG contribution agreement.
16 July 2020	Mr. Dion commences an examination into Minister Morneau’s possible contraventions of sections 6(1) and 21 of the Act.
16 July 2020	The House of Commons Standing Committee on Finance undertakes a study entitled Government Spending, WE Charity and the Canada Student Service Grant.
22 July 2020	Minister Morneau pays $41,366 to WE Charity to reimburse WE for the cost of his and his family’s travel and accommodation. He stated he was surprised to discover that he had not already paid for these expenses.
29 July 2020	Mr. Dion expands his examination of Minister Morneau to include sections 11(1) and 12 of the Act.
29 July 2020	Pursuant to a motion adopted on 22 July 2020, deadline for witnesses to appear and for submitting documents to the House of Commons Standing Committee on Access to Information, Privacy and Ethics.
30 July 2020	The House of Commons Standing Committee on Access to Information, Privacy and Ethics undertakes a study entitled Safeguards to Prevent Conflicts in Federal Government Expenditure Policies.
8 August 2020	Pursuant to a motion adopted on 7 July 2020, deadline for submitting documents to the House of Commons Standing Committee on Finance.
9 August 2020	Pursuant to a motion adopted on 30 July 2020, deadline for submitting documents to the House of Commons Standing Committee on Finance.
12 August 2020	The Standing Committee on Official Languages adopts the following motion: That the Chair be authorized to establish the schedule for the WE Charity study and undertake it as soon as possible. However, no study was on this matter was commenced.
13 August 2020	The House of Commons Standing Committee on Government Operations and Estimates holds a meeting on the following topic: Administration of the Canada Student Service Grant and WE Charity.
17 August 2020	Minister Morneau resigns as Minister of Finance and member of Parliament for Toronto Centre.
18 August 2020	The Parliament of Canada is prorogued.
19 August 2020	Pursuant to a motion adopted on 22 July 2020, deadline for submitting documents to the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Source: Table prepared by the Library of Parliament using information obtained from House of Commons Standing Committee on Finance (FINA), Evidence, 1^st Session, 43^rd Parliament, 16 July 2020; FINA, Evidence, 1^st Session, 43^rd Parliament, 22 July 2020; FINA, Evidence, 1^st Session, 43^rd Parliament, 28 July 2020; FINA, Evidence, 1^st Session, 43^rd Parliament, 30 July 2020; Department of Finance Canada, Written Response Submitted to the House of Commons Standing Committee on Finance Pertaining to WE Charity; and WE Charity, Media Statement – WE Charity, 3 July 2020.

Discussion

A.   August 2020 prorogation

During the Committee’s study, witnesses gave their insights on the unique aspects of the August 2020 prorogation, as compared with previous ones. The average length of a prorogation at Canada’s federal Parliament was also discussed.

Most witnesses commented on the rationale behind the decision to prorogue in August 2020. Some witnesses expressed the view that the health crisis caused by the COVID-19 pandemic and the disconnect between the pandemic and the December 2019 Speech from the Throne justified the prorogation. These witnesses argued that the August 2020 prorogation was not significantly different from other prorogations that have occurred in Canada in the past. To that end, several witnesses were of the view that the decision to prorogue is a political one and rests with the prime minister.

Other witnesses held the opposite viewpoint, commenting that the rationale provided in the October 2020 report was, at most, only part of the story, and that the decision to prorogue Parliament was instead due to political considerations, not the COVID-19 pandemic. Many witnesses pointed out that the decision to prorogue Parliament coincided with the work being undertaken by several parliamentary committees into the government’s decision to award a contract to WE Charity to manage the Canada Student Service Grant. Prorogation ended all parliamentary activities, including these committees’ studies.

The Committee is reminded of the testimony that it heard to the effect that in a majority Parliament, prorogation provides the government with an opportunity to reset its legislative agenda and deliver a Speech from the Throne. In a minority Parliament, prorogation is a tool used by the government to protect itself and can be seen a delay tactic.[50]

1.    Testimony from the Leader of the Government in the House of Commons

In his testimony before the Committee, Mr. Rodriguez began by discussing the 2017 change to the Standing Orders, which created new Standing Order 32(7). As noted above, this Standing Order created a requirement that, following a prorogation, the government must table a document in the House which outlines the reasons for it. This document is deemed referred to the Committee after it is presented in the House. Mr. Rodriguez argued that that the tabling of the report in October 2020 under Standing Order 32(7) was a demonstration of the government being “transparent and open.”[51] However, when asked to undertake voluntarily to provide the Committee with relevant documents, he declined.[52]

Mr. Rodriguez also discussed the reasons for the 2020 prorogation given in the report. He pointed out that, in December 2019, the Speech from the Throne following the 43^rd federal general election made no mention of the upcoming COVID-19 pandemic, a crisis that turned government priorities upside-down a few months later. He also highlighted the “unprecedented” legislation that Parliament had passed since March 2020 to address the economic impacts of the pandemic on Canadians.[53]

Further, Mr. Rodriguez said that by the summer of 2020, it was clear to the government that the plans and priorities announced in the December 2019 Speech from the Throne no longer reflected the challenges Canadians’ faced. However, when asked to identify exactly when this became clear, he was unable to provide the Committee with any dates.[54] For this reason, the government committed to presenting a new Speech from the Throne to Parliament, as it was “fundamental” that members be given the opportunity to vote on the plan. He noted that the House of Commons supported the Speech from the Throne.[55]

Mr. Rodriguez concluded his opening remarks by saying that Parliament was prorogued for one reason: “to come forward with a new plan to confront the biggest health and economic crisis of our time.”[56]

When asked if the prorogation was related to the WE Charity study being conducted by some parliamentary committees, the Government House Leader told the Committee that he did not agree that this was the case. Instead, in his view, the pandemic fully justified the need to prorogue.[57] As for the period required to draft the Speech from the Throne, Mr. Rodriguez indicated that preparing this speech was a long process that required consulting with experts.[58] He did not, however, advance arguments which convinced the Committee about why planning or consultations on a new agenda either required the prorogation of Parliament or a five week long prorogation.

2.    Testimony from Privy Council Office officials

Mr. Sutherland and Donald Booth, Director of Strategic Policy and Canadian Secretary to the Queen, testified about the steps taken by the Privy Council Office following the 2020 prorogation.

According to Mr. Sutherland, public servants began working on the Speech from the Throne as soon as Parliament was prorogued in August 2020. The Privy Council Office’s priorities and planning group kicked into gear, and various departments worked together to identify initiatives and themes for the Speech from the Throne. As did Mr. Rodriguez, Mr. Sutherland noted that the drafting process involved wide public consultation. The key themes that emerged were included in the government’s fall economic statement and the January 2021 supplementary mandate letters for Cabinet Ministers.[59]

In response to questions about the process of drafting the Speech from the Throne, Mr. Sutherland stated that there have been instances in which the speech was written entirely by the Prime Minister’s Office, while at other times, it was written by the public service.[60] He said that a Speech from the Throne is a very special speech that takes time to put together properly.[61] For the September 2020 speech, he told the Committee that every federal department provided ideas for themes or signature items for inclusion in the speech. These consultations began in late August and early September, after which several exchanges of information occurred between the Prime Minister’s Office and the Privy Council Office.[62]

In response to being asked whether the Privy Council Office had recommended the August 2020 prorogation, Mr. Sutherland stated that, to his knowledge, the Privy Council Office’s advice was sought only about the terms for the prorogation, not on whether to prorogue.[63] To that end, he stated that the role of the Privy Council Office, with respect to prorogation, is limited to ensuring that the steps taken for a prorogation respect Canada’s constitutional traditions.[64] Mr. Sutherland also indicated that the impact of prorogation would have on committees, Order Paper questions and, to a lesser extent, private members’ bills was well-known at the time Parliament was prorogued.[65] Mr. Sutherland and Mr. Booth mentioned the 16^th and 17^th of August as when the Privy Council Office was engaged on facilitating the 18 August 2021 prorogation.[66]

Both Mr. Sutherland and Mr. Booth addressed the duration of past prorogations of Canada’s Parliament. Mr. Sutherland stated that, historically, some prorogations have been relatively short, while others have been much longer. In his view, the August 2020 prorogation was within the norms of past prorogations.[67] He added that the only legal limit for the duration of a prorogation is 365 days, since the Constitution provides that Parliament must sit at least once a year.[68] Mr. Sutherland also noted that the 2020 prorogation was not the longest he had ever seen and that, with respect to constitutional conventions, there was nothing unique about it.[69] Mr. Booth explained that, when the prorogation proclamation is drafted, the prime minister must set a date for the return of Parliament; traditionally, that date has been around 40 days. However, the duration of prorogations has varied considerably over the past few decades.[70]

In response to being asked if it would have been possible to prorogue for only a very short period of time, for example proroguing on Friday, 18 September 2020 and convening Parliament the following Wednesday for the Speech from the Throne, Mr. Sutherland said that it would have been possible but that, in his view, it would have adversely impacted the ability to hold consultations on the Speech from the Throne.[71] In response to questions posed by a member of the Committee, Mr. Sutherland testified that, although the budget requires extensive consultation to prepare, he would not advise that Parliament be prorogued during the lead-up to the budget.

Both Mr. Sutherland and Mr. Booth underlined that the decision to prorogue is fundamentally a political one based on specific circumstances.[72] Also, Mr. Sutherland stated that a confidence motion was inevitable and necessary after a Speech from the Throne.[73]

3.    Testimony from academics

a)   Reasons for the August 2020 prorogation

^[74]The Committee heard testimony from academics who provided their points of view about the reasons for the August 2020 prorogation. Most raised at least some questions about the reasons provided in the October 2020 report for proroguing Parliament, and commented that the decision to prorogue was the result of the political context at the time. However, some held the view that the health and economic crisis caused by the COVID-19 pandemic warranted prorogation, as it allowed the government to refocus its priorities. Others noted that several reasons could have informed the decision to prorogue. Finally, most agreed that proroguing Parliament is a political decision with political consequences.

Daniel Turp, associate professor, Faculty of Law of the Université de Montréal, stated that, in his view, Parliament was prorogued to suspend studies by parliamentary committees into the government contract awarded to the WE Charity. Mr. Turp considered the omission of this reason for prorogation from the October 2020 report as “hypocrisy.” He also found the reasons provided in the report to be questionable and stated that a prorogation was not needed to reset the government’s agenda. He further stated that, on 18 August 2020, the government held the confidence of the House of Commons, and therefore a prorogation followed by a confidence vote was not necessary.[75]

Duane Bratt, professor of political science, Mount Royal University, told the Committee that the COVID-19 pandemic was a valid reason to prorogue Parliament. However, he stated that while the pandemic likely played a role in the decision to prorogue, a much more important rationale, in his view, was to suspend the committee studies on the WE Charity.[76] Indeed, he called prorogation “an elaborate effort from the Trudeau government to distract Canadians from a political scandal.”[77]

In support of his assertions, Mr. Bratt noted two matters: that the prorogation’s timing, in August rather than in spring, suggested that the COVID-19-related health crisis was not the most important rationale for prorogation. On timing, he also noted the coincidence of the timing of prorogation with the Minister of Finance’s resignation, commenting:

The timing is absolutely important. You cannot divorce Bill Morneau’s resignation from his implication in WE. Think of that committee meeting when he announced that he had written a cheque to WE Charity for $45,000 hours before testifying. That’s pretty damning.[78]

Secondly, he stated that the Speech from the Throne lacked substance and content that related to the on-going health crisis. In his view, if Parliament had been prorogued because of the pandemic, the Speech from the Throne would have outlined new programs and policies to address it.[79] Instead, in his opinion, it resembled a campaign speech for the next election.[80] Mr. Bratt also stated that, if the government wanted to ensure that it had the confidence of the House, it could have held a confidence vote without proroguing.[81]

Similarly, Ian Brodie, associate professor of political science, University of Calgary, indicated that the government’s assertion that a prorogation was necessary to relaunch its agenda was disproved by the events of the 42^nd Parliament, a Parliament in which there was no prorogation. In his view, the sole reason for the August 2020 prorogation was to end the committee investigations into the WE Charity contract.[82] In his opinion, both the 2008 and 2020 prorogations were the results of breakdowns and governance within the Liberal caucus.[83]

Philippe Lagassé, associate professor of international affairs, Carleton University, suggested to the Committee that an analytical framework could be employed to distinguish between “acceptable, purposeful prorogations” and “damaging, tactical prorogations.” He indicated that a prorogation may be “wise or necessary” in certain circumstances, such as when Parliament has been in one session for an extended period of time and the government wishes to start afresh, or when a significant event leads the government to pursue a new slate of legislative measures. By contrast, a prorogation may be “tactical” in other circumstances, such as delaying a vote of non-confidence. Mr. Lagassé also stated that wise and acceptable prorogations should be as short as possible. Further, the political environment and parliamentary context are factors in determining whether or not a prorogation is tactical.[84] He also noted the government failed to communicate convincingly on its reasons for proroguing Parliament.[85]

Applying these criteria to the August 2020 prorogation, Mr. Lagassé stated that the pandemic was a significant event for which the government wanted to reset its agenda and priorities, which suggested that the prorogation had a legitimate purpose. However, he noted that other factors pointed to a tactical prorogation, such as the length of the prorogation and its impact on committees studying the contract awarded to the WE Charity.[86]

Mr. Lagassé stated that it was the opposition’s role to criticize the tactical nature of a prorogation, and the government’s role to explain its necessity. In the end, the electorate would decide, in the next election, which version they believed. However, he indicated that, in his view, the government failed to effectively communicate the reasons for the August 2020 prorogation. This did not mean that the prorogation was unnecessary, but that he was not convinced by the government’s message. According to Mr. Lagassé, the usefulness of a prorogation would have been more apparent had Parliament been sitting regularly during the pandemic.[87]

Patrick Taillon, professor of law, Laval University, stated that prorogation is a controversial mechanism in Canadian parliamentary law. In certain circumstances, it can be used to “pervert the functioning of a parliamentary system.”[88] Further, he criticized the government’s use of prorogation in August 2020, noting the government confused its legitimate interest with the best interest of the federation.[89] Mr. Taillon indicated that, in his view, the prorogation had the effect of putting the government’s short-term interests ahead of the best interests of the nation, by ending Parliament’s work in the midst of a health crisis. He stated that the government had several reasons for proroguing, including resetting its agenda and shutting down parliamentary committees. He indicated that it would have been preferable not to prorogue Parliament or, if the government had considered a prorogation necessary, to prorogue for a much shorter period of time, for example for just a day. Mr. Taillon noted, as did Mr. Lagassé, that the determination of whether or not a prorogation was controversial rested with parliamentarians and voters.[90]

Barbara Messamore, professor of history, University of the Fraser Valley, stated that the August 2020 prorogation was “entirely justifiable.”[91] She commented that it was unfortunate that prorogation had interrupted the parliamentary hearings into the WE Charity, referred to it as “absolutely … a problem,”[92] but that the pandemic justified the decision to prorogue and allow for a new Speech from the Throne. In her view, the prorogation was a routine procedure to bring forward a government agenda.[93]

Kathy Brock, professor in the School of Policy Studies, Queen’s University, stated that the use of prorogation by governments to avoid committee hearings may create public disillusionment and cynicism.[94] She also stated that prorogation, in general terms, is a mechanism to “reset” and emphasize new government priorities. In August 2020 the government was tired and under pressure, observing, “This is when a government makes very serious mistakes, and they are exposed to the public as failures of government, malfeasance or misdemeanours of some type”.[95] The prorogation gave the government and the public sector time to “regain their energy.”[96] However, in her view, the August 2020 prorogation was not absolutely necessary.[97]

Lori Turnbull, associate professor and director of the School of Public Administration, Dalhousie University, noted that the government’s October 2020 report contains no mention of the parliamentary committees studying the WE Charity. In her view, suspending these studies was a major reason for prorogation.[98] Further, Ms. Turnbull indicated that the August 2020 prorogation was unnecessary.[99] However, she stated that assessing the legal or constitutional necessity of a prorogation is a difficult matter, and that the existence of a political explanation does not rule out another explanation that is based on policy planning. In the current circumstances, she said, “[t]he government is free to offer its narrative on why it prorogued, but I don’t think it’s possible to look at the situation and ignore the other narrative that was dominant at that time.”[100] Ms. Turnbull noted that, the Standing Orders require the government to report to the House its reasons for prorogation. However, the Constitution does not require the prime minister to have good reasons for proroguing.[101]

On the matter of whether the August 2020 prorogation constituted an abuse of power, there were differing opinions among the witnesses. Mr. Lagassé and Ms. Brock stated that the prorogation was regrettable and problematic, but not abusive. Ms. Messamore indicated that the prorogation was not an abuse of power. Mr. Turp stated that the prorogation was an abuse of power, given its political context.[102]

b)   Duration of the prorogation

Several witnesses provided the Committee with their opinion about the duration of the prorogation. Mr. Turp, Mr. Lagassé and Mr. Bratt considered the August 2020 prorogation to be unnecessarily long.[103] Mr. Turp indicated that the prorogation did not need to be several weeks long, as a Speech from the Throne can be quickly prepared.[104] Mr. Bratt told the Committee that in past instances, prorogations have lasted just one or two days.[105]

Mr. Taillon stated that a shorter prorogation could still have achieved the same objectives. He told the Committee that his greatest concern about the August 2020 prorogation was that its duration of six weeks during a crisis.[106] Mr. Brodie indicated that, in general terms, it is better to prorogue the day before Parliament is recalled and that way minimize the time that Parliament is not in session.[107] Hugo Cyr, professor political science and, Université du Québec à Montréal, also stated that a “reasonable prorogation” is one that does not last long, allowing Parliament to carry on its role and functions.[108]

c)    Testimony from the prime minister

Some witnesses told the Committee that hearing the prime minister’s testimony would be helpful to its study.

Mr. Brodie stated that the Committee’s study was setting a precedent for how to handle future reports on prorogations and he expressed hope that the prime minister would appear before the Committee to set that precedent.

During his testimony, Mr. Brodie provided members with suggested questions that they could pose to the prime minister about prorogation.[109] One potential question would be whether the prime minister had concerns that the August 2020 prorogation curtailed the work of the House of Commons, given the reduced number of sitting days held in spring 2020 due to the COVID-19 pandemic. Further, Mr. Brodie noted that the length of the prorogation could have inhibited Parliament’s ability to pass urgent legislation. He therefore recommended that the Committee ask the prime minister how risk would have been mitigated if urgent legislation was needed? Third, Mr. Brodie advised the Committee to ask the prime minister about the effect prorogation had on the debate on Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). Lastly, given that prorogation suspended all committee studies, Mr. Brodie suggested that the prime minister be asked what steps he was prepared to take to “dispel the cloud over this aspect of his decision.”[110]

Mr. Bratt, Mr. Taillon, Ms. Turnbull and Mr. Cyr stated that the prime minister’s appearance before the Committee would be helpful to this study.[111] As Ms. Turnbull put it, “[i]f this is going to be a successful reform does it not make more sense to have the prime minister come and tell you this? The reasons are his.”[112]

B.   Reforms

Some witnesses provided their views on potential constitutional or procedural reforms that could be made to prorogation, including clarifying current conventions and, in certain instances, circumscribing the prime minister’s role.

In response to the question of whether constitutional amendments should be made to the act of prorogation, Mr. Sutherland stated that his office, in machinery of government, was very reluctant to propose changes that would depart from the conventions and traditions of Canada’s parliamentary system.[113]

Mr. Turp told the Committee that Canada’s constitutional law should be reviewed to provide a framework for prorogation. He stated that past governments had abused this power and that reforms were needed to protect Parliament. Further, Mr. Turp suggested that certain reforms could be made without necessarily requiring a constitutional amendment. He told the Committee that it ought to study mechanisms in place at other legislatures to circumscribe the power to prorogue.[114]

Similarly, Mr. Taillon stated that the vague nature of the constitutional convention of prorogation was a shortcoming of the Canadian parliamentary system. He stated that, at times, this lack of clarity exacerbated rather than mitigated political crises. Mr. Taillon suggested that Parliament study its unwritten conventions and consider codifying them, as is the case in New Zealand and the United Kingdom. However, he noted that the scope for reforming prorogation was limited, and that the most effective reform would be to place a time limit on the duration of a prorogation, with the view of establishing a new convention.[115]

Mr. Cyr indicated that the Standing Orders of the House of Commons could be amended to require the government to pass a resolution in the House adopting a prorogation. Without first passing such a resolution, the government would be deemed to have lost the confidence of the House and could not request a prorogation from the Governor General. In his view, amending the Standing Orders would ensure that a majority of members supported a given prorogation.[116]

Mr. Lagassé told the Committee that measures to codify the power to prorogue will always have gaps, and that there was no obvious solution. He noted that, in the United Kingdom, problems arose during efforts to eliminate conventional powers or transfer them to the House of Commons.[117]

Ms. Turnbull stated that the Standing Orders could not prevent the prime minister from giving advice to the Governor General on the exercise of constitutional powers.[118] She also stated that she does not know of any system, particularly Westminster systems, that has arrived at a “fantastic” accountability mechanism to circumscribe prorogation.[119]

In her written submission, Ms. Brock suggested that Parliament consider taking three actions related to prorogation. First, Parliament could ensure a robust debate and examination of the government’s report on prorogation, which would enhance the role of Parliament and its legitimacy as a defender of democracy in the public mind. Second, Parliament could examine the use of multi-party agreements and their effects on the ability of the House to hold the government to account. Lastly, Parliament could examine whether committee work ought to cease completely during a prorogation or should a mechanism be devised to allow certain committees to continue their work during a prorogation.[120]

Mr. Brodie’s written submission proposed reforms to the prorogation report procedure, including requiring the prime minister to table the report, requiring the prime minister to appear before the Committee in defence of the report, and requiring a debate on the floor of the House of Commons on the report.[121]

C.    Role of the courts

Some witnesses brought up the judgment of the Supreme Court of the United Kingdom in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, also known as Miller II. The case concerned whether the advice given by the prime minister to the Queen in August 2019 that the United Kingdom Parliament should be prorogued was unlawful. The Supreme Court of the United Kingdom ruled unanimously that the prime minister’s advice was unlawful, as the prorogation would have prevented Parliament from carrying out its constitutional role, without reasonable justification. Some witnesses believe that this judgment could be an interesting precedent for Canada, because it would open the door to a judicial review of the reasons for a prorogation and its effects.

According to Mr. Turp, had the August 2020 prorogation been challenged, and the Supreme Court of Canada applied the same principles as the Supreme Court of the United Kingdom, it could have declared the prorogation unlawful. [122] Mr. Cyr also discussed the Miller II decision, stating it is difficult to predict what impact a similar decision would have in Canada. However, he pointed out that there are precedents for a judicial review of the prerogatives of the Crown, for example in Khadr.[123]

By contrast, Mr. Lagassé cautioned Canadian courts against following the example of the Supreme Court of the United Kingdom, stating that, in his view, prorogation should be viewed as a non-justiciable political question.[124]

Finally, Mr. Bratt stated that it might be interesting for the Committee to invite a British expert to testify about this decision, given the similarities between the British and Canadian systems.[125]

Findings and recommendations

In light of the evidence it received and the testimony it heard during this study, the Committee is pleased to present the following findings and recommendations.

Findings

(a)  The COVID-19 pandemic

The Committee recognizes:

That the World Health Organization declared a pandemic on 11 March 2020, and that it continues today with 175.5 million cases worldwide, 3.8 million deaths and an estimated loss to the global economy of 22 trillion US dollars.^[126]

That the COVID-19 pandemic is the most serious public health emergency since the 1918 influenza, and that it took “nine months to reach one million deaths, four months to reach two million deaths, three months to reach three million deaths,”^[127] and that “with new variants compounding explosive outbreaks, the pandemic is far from over.”^[128]

That in Canada, 2020-21 has been a very hard year with over 1.4 million COVID-19 cases, and that we remember the nearly 26,000 people we have lost to the virus, and the sacrifice of healthcare and frontline workers who put their own health at risk to keep their communities safe.

That on 18 August 2020, there were just over 360 new coronavirus infections detected in Canada, bringing the country’s case count to over 123,000, and on 2 June 2021, there were over 2,000 new cases bringing the country’s case count to 1.4 million cases.

That almost eighteen months into “the defining health crisis of our age, the world remains in a very dangerous situation,”^[129] with more cases reported so far in 2021 than in the whole of 2020.

(b) Reasons for August 2020 prorogation

The Committee recognizes:

That prorogation is a valuable tool and can serve an important function in our parliamentary democracy.

That the government’s report presents an incomplete, one-sided, self-flattering representation of why Parliament was prorogued and, therefore, represents a cynical failure of the accountability reform this same government claimed Standing Order 32(7) represents.

That nothing prevented the government from planning or consulting on a revised policy agenda, the reason it asserts for why Parliament was prorogued, without the prorogation of Parliament, similar to how it managed to avoid proroguing Parliament during the four-year life of the 42^nd Parliament.

That, while the pandemic provided good prima facie grounds for prorogation at some point after the initial wave of the pandemic, the nature, timing and length of the prorogation clearly indicate that the prime minister’s decision to prorogue Parliament in August 2020 was principally motivated by the circumstances of the WE Charity scandal, including four parliamentary investigations, in an effort to protect the partisan interests of the prime minister and his government.

That Standing Order 32(7) was the prime minister’s own proposal for curbing the political abuses of the prorogation power and is of the view that his own behaviour betrays the inadequacy of his proposal.

(c)  The Committee’s 2020 prorogation study and testimony from prime minister

The Committee observes:

That the Committee is deeply disappointed with the Liberal partisan tactic of a three-and-a-half-month filibuster on proposals to gather evidence a majority of the Committee felt was necessary to understand better the true, primary motivation for prorogation.

The Committee is of the view that a proper study of the reasons for prorogation must include the opportunity to question the sole decisionmaker and, consequently, the prime minister’s failure to appear made it impossible for the committee to properly do its work. The Committee’s effort to assess the reasons for prorogation were further frustrated by the fact that senior government advisors and witnesses involved in the WE Charity scandal declined the Committee’s invitation to appear. On both accounts, the Committee’s study was incomplete.

That the prime minister was delinquent in his duties to Parliament and the Canadian public in failing to appear before the Committee to explain his reasons for the August 2020 prorogation.

Recommendations

(a)  Legislative reforms or status quo

The Committee recommends:

That prorogation should not be limited as it can be used in many circumstances, including but not limited to, political, legislative, policy-planning, or other reasons.

That it is inadvisable to pursue constitutional amendments touching upon the Governor General’s authority to summon, prorogue or dissolve Parliament.

(b) Procedural reforms

The Committee recommends:

That Standing Order 32(7) be replaced with the following:

(7) Not later than 20 sitting days after the beginning of the second or subsequent session of a Parliament, the Prime Minister shall lay upon the table a document outlining the reasons for the latest prorogation. This document shall be deemed permanently referred to the Standing Committee on Procedure and House Affairs immediately after it is presented in the House.

Further, the Committee recommends:

That, in the interests of transparency and in order to promote and foster democracy and democratic principles, including accountability, the prime minister sign and table the prorogation report provided for under Standing Order 32(7) himself, and that he appear in person before the Standing Committee on Procedure and House Affairs as part of any study undertaken by the Committee regarding the prorogation.

(c)  Extending the Committee’s 2020 prorogation study

The Committee recommends :

That the prime minister set the record straight by taking the initiative to appear before the Standing Committee on Procedure and House Affairs in the 10 days following the adoption of this report by the Committee in order to provide explanations and answer the Committee’s questions on the reasons leading to the decision to prorogue Parliament on August 18, 2020, when Canadians and Quebeckers were facing the COVID‑19 pandemic, and in the midst of the WE Charity scandal (Canada Student Service Grant) and the resignation of his Minister of Finance.

That he do so in keeping with the reasons that led him to undertake amendments to the Standing Orders in 2017, as regards the provisions to ensure more transparency in the process of the prorogation of Parliament, and that he show his willingness to set a precedent by appearing before the Committee, so that future prime ministers who choose to prorogue Parliament will do the same.

(d) Future study of the Standing Orders

The Committee recommends:

That the Committee be instructed, as part of its forthcoming general review of the procedure of the House and its committees, pursuant to Standing Orders 51(2) and 108(3)(a)(iii), to study potential procedural “disincentives” for a government to prorogue Parliament, including:

(a) amendments to the Parliament of Canada Act, under the provisions of section 44 of the Constitution Act, 1982, authorizing one or more of the House’s committees to meet during a prorogation of Parliament, consistent with the similar authority currently enjoyed by the Standing Senate Committee on Internal Economy, Budgets and Administration, under subsection 19.1(2) of the Parliament of Canada Act;

(b) amendments to Standing Order 49, which automatically renews House Orders and Addresses for papers following a prorogation, to apply also to committee orders for papers;

(c) amendments to Standing Order 81(10)(b), which reduces the number of allotted (opposition) days when the House does not sit as scheduled, to preserve any allotted days which would have been lost due to a prorogation;

(d) amendments to Standing Order 81(10)(a), which sets out the number of allotted (opposition) days in each supply period, to require additional allotted days to be scheduled following a prorogation;

(e) amendments to Standing Order 54, which requires 48 hours’ notice for the consideration of any motion, to require additional notice for any government motion which would have the effect of reinstating government business which lapsed at prorogation;

(f) amendments to the Standing Orders, generally, to schedule additional consideration of Private Members’ Business, in the place of Government Orders, in the initial days of a second or subsequent session of Parliament; and

(g) further amendments to Standing Order 32(7), to require a Prime Minister to appear before this Committee following the tabling of a prorogation report.