Crisis Government and the Caretaker Convention

How do Trudeau’s resignation, prorogation, and a looming election affect the government’s authority to deal with Trump?

Canada is mired in political uncertainty while facing significant threats from its closest ally and trading partner. The country is unsure about who will replace Justin Trudeau as Prime Minister, Parliament is prorogued, and we're headed into a general election sometime this year, probably in the spring. President-elect Trump, meanwhile, is using increasingly aggressive rhetoric about Canada, going from threatening a 25% tariff to warning that he'll use economic coercion to annex us. Trump will be inaugurated on 20 January, several weeks before a new Prime Minister will be appointed and two months before Parliament is set to return. So, not an ideal situation.

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.