Supply Managing the Prerogative?

Bill C-282 appears to limit the foreign affairs prerogative, but it’s not so clear cut

The Senate is currently considering a Private Member’s Bill (C-282) which aims to prevent the Minister of Foreign Affairs from negotiating treaties that would affect supply management, notably the traffic that shields Canada’s dairy, poultry, and egg producers from foreign competitors. Since the bill has already been passed by the House, the Senate will likely feel compelled to do the same, notwithstanding strong opposition from two Senators with considerable foreign affairs experience. Although it’s been around for a while, the bill has become a hot topic owing to the Bloc Quebecois' demand that it pass by the end of October. In light of the attention the bill is getting, it's worth asking if C-282 actually does what it purports to do.

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

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

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

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

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

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

(d) coordinate Canada’s international economic relations;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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