Prime Minister Justin Trudeau’s decision to prorogue Parliament raises questions about how Ottawa can respond to the incoming Trump administration without the option of using legislation — but the government says it still has several powers at its disposal.
The prorogation means all legislative activity is suspended until March 24, and any bills that haven’t yet received royal assent die and will need to be reintroduced in the next session. That includes proposed new spending like the $1.3 billion announced last month in the federal government’s new border security plan.
The plan was intended to address concerns raised by incoming U.S. president-elect Donald Trump, who has vowed to impose damaging 25 per cent tariffs on all Canadian imports while pushing Ottawa to clamp down on cross-border migration and drug smuggling.
A spokesperson for Public Safety Minister David McGuinty told Global News the border security plan contains several measures that do not need parliamentary approval. They include steps already taken by the government, including an end to “flagpoling” and joint border security exercises with the provinces and territories, starting with Ontario last Friday.
“While Parliament is prorogued, the Cabinet and the public service continue to be fully operational,” spokesperson Gabriel Brunet said in an emailed statement.
“We intend to keep forging ahead with our plan to strengthen our border, deepen our collaboration with our American partners, and keep Canadians safe.”
If Trump follows through with his threat of tariffs, Canada can impose retaliatory duties on American goods without parliamentary approval as well.
The government did not need to pass legislation to retaliate against Trump’s steel and aluminum tariffs in 2018.
Constitutional experts say this is one example of how the government’s executive branch and bureaucracy will continue to operate largely as normal during prorogation.
“Prorogation does not create a caretaker government,” Emmett Macfarlane, a political science professor at the University of Waterloo who studies constitutional politics, said in an interview.
“The government has all of the regular authority it would have if Parliament were sitting to engage in administrative and executive actions.”
That’s different than during an election, when Parliament is dissolved and the government “needs to be constrained in what it does outside of issues of public concern or emergencies,” Macfarlane added, and is otherwise tasked with keeping the country “stable.”
During prorogation, cabinet ministers and even the prime minister can continue to make announcements about new initiatives or issues of authority, provided it does not need new spending — which must be approved by Parliament — to achieve them.
Agencies like the Royal Canadian Mounted Police, the Canada Border Services Agency, and Immigration Refugees and Citizenship Canada can still undertake improvements to border security and refugee programs with existing funding, so long as any actions don’t require changing existing legal powers or authorities through new legislation.
The government managed to pass the necessary appropriations for those agencies and others to have funding through March 31 — the end of the current fiscal year — shortly before Parliament rose for the winter holidays in December.
What is ‘Crown prerogative’?
A 2015 report for the Department of National Defence outlines the legal principle of “Crown prerogative,” which outlines powers that the executive branch can use without parliamentary approval.
The legal report lists foreign affairs, war and peace, treaty-making, and defence and the armed forces as examples of where Crown prerogative can be invoked.
Although the governor general is Canada’s Crown representative, the report notes that under Canadian law, Crown prerogative is “exercised at the federal level by the cabinet,” which ultimately carries executive authority.
The Library of Parliament says deploying the military is also exercised under the Crown prerogative, with the cabinet, representing the King, serving as commander-in-chief.
The governor general technically has “personal prerogatives,” including the appointment and dismissal of a prime minister or the dissolving of Parliament. However, the report noted those actions are typically done at the request or advice of the prime minister.
Another power the governor general carries is to issue “special warrants” for spending, also at the request of the prime minister. Those can be issued to ensure government agencies or programs remain funded during an election period, with monies taken from the Consolidated Revenue Fund.
That spending would then have to be approved through supply motions once the next session of Parliament begins.
Any new initiatives funded that way “would have to be in response to a real pressing concern — and Donald Trump taking certain actions against Canada probably would count in that vein,” Macfarlane said.
“But a good caretaker government at that point will also consult with the opposition before taking any drastic actions,” he added.
“During a prorogation, the government has a pretty free hand.”