There must be cases in which a request to prorogue would be an abuse of power and thus be unconstitutional. Few would disagree that the governor general who is asked to prorogue parliament indefinitely, or who is approached repeatedly by a serial proroguer, would be entitled to refuse on constitutional grounds. The principle of responsible government cannot be maintained if ministers are not required to face parliament. The ball must be kept in play, and there is only one political institution that has been given the responsibility of ensuring that it is. Returning to the events of December 2008, the Prime Minister’s request was arguably sought for just such an improper purpose – to avoid the scrutiny of the House of Commons in order to remain in power.
PROROGUING PARLIAMENT: A MATTER OF CONVENTION
Bradley W. Miller
Assistant Professor, Faculty of Law, University of Western Ontario
(2009) 20 Public Law Review 100
RON MACLEAN
Welcome to House of Commons Night in Canada. I'm Ron MacLean here with Don Cherry. Grapes, it's been a busy couple of days, you've been in the news, a lot's going on.
DON CHERRY
You're telling me. I got the proverbial hitting the fan - I know I'm not supposed to say what I said to that idiot who phoned me...
RON MACLEAN
That's absolutely right, we'd better - stay off that...
DON CHERRY
I got some neurosurgeon yapping at me from Regina on one hand, and now the Governor-General looking like she's going to step into it on the other...
RON MACLEAN
Let's stick with the GG, it seems a lot safer....
DON CHERRY
...and a lot more fun, let's face it. I got a lot of time for the Governor-General, and hey, let's remember, where did the Stanley Cup come from? A Governor-General!
RON MACLEAN
OK, we're getting a little ahead of ourselves here. Let's back up to where we left it last time, with the Commons heading into sudden death overtime after practically a tie vote of the Afghan prisoner problem...
DON CHERRY
...and I'm gonna stop you right there and say I'm really glad it didn't come down to a shootout with the Speaker...
RON MACLEAN
...which would have happened with a 144-144 tie....
DON CHERRY
That's right, but it would have been a shame to see that happen - I'd hate to see the Speaker in that position, he's a good guy - and it wouldn't have been good for the game of Parliamentary Democracy. It'd be like the the World Cup and it all comes down to a shootout.
RON MACLEAN
OK, so lucky for us it's not happening, but the Commons has risen for the Christmas break, not to sit again until January 26, and the Special Parliamentary Committee on the Canadian Mission in Afghanistan is meeting anyway, and tomorrow will be grilling Peter Mackay, Minister of National Defence, and separately,Chief of Defence Staff General Walter Natynczyk. What's your take on that?
DON CHERRY
Well, I can't say for sure, the meeting will be behind closed doors, and what goes on in the Room, stays in the Room, but I think it'll be pretty heated, I'd like to be a fly on the wall.
RON MACLEAN
How do you think in will play out?
DON CHERRY
I think a lot of frustration will get out, a lot of strong feeling, but I think the Committee will be split just like before - I don't see this government coughing up any documents - and it'll go back to Parliament to decide if they want to pursue it in the courts.
RON MACLEAN
You think that'll happen?
DON CHERRY
Hard to say, but I think they should settle it among themselves, and not drag the courts into this. They're big boys, they should act like big boys.
RON MACLEAN
Which brings us to the Governor-General, who is of course not a boy.
DON CHERRY
Now you're just trying to get me going! You know what I mean.
RON MACLEAN
So there are a lot of rumours flying around...
DON CHERRY
Tell me about it....
RON MACLEAN
...that the Prime Minister is going to ask the GG to prorogue Parliament until after the Olympics, to let the whole Afghan thing blow over..
DON CHERRY
You know, that's taking a dive. That's not the game of Parliamentary Democracy. Harper pulled this stunt last year - some people say it was a good thing, the jury's still out on that one - but I don't think the GG will let him pull it off this time.
RON MACLEAN
What makes you say that?
DON CHERRY
Well first of all, last time she made him sweat. I got the feeling he thought he was just going to drop into Rideau Hall for a cup of tea and tell the Governor-General what she has to do....and hey!....several hours later, no Harper. And that was last time...
RON MACLEAN
So you think this time will be different?
DON CHERRY
All I'm saying is the Governor-General isn't a shrinking violet, and if she goes into a corner with Harper and he tries to pull a dive on her....well...I think I know who's coming out. My opinion, and it's only my opinion, is the GG has good elbows...
RON MACLEAN
So then he'd have to come back to Parliament, and....
DON CHERRY
...and then who knows? That's why it's such a great game. And then there's the Olympic hockey which is going to be a barn burner! But I wanna say this before we go. Remember...remember that Lord Stanley's kids played for the Rideau Rebels. OK? I'm only saying....
RON MACLEAN
So we'll leave it there for now. We'll see you very soon, on House of Commons Night in Canada...
(2009) 20 Public Law Review 100
