A Brief Note on the “Caretaker Convention” and Prime Minister Carney

Just lately, commentators have criticized Prime Minister Mark Carney for activities he has been engaged in since taking over the leadership of the Liberal Party and thus the prime ministership. These activities, the commentators argue, breach the “caretaker convention” (“the convention”) (see, for example, Carson Jerema, “Mark Carney is acting like a normal PM. He’s not” (“Jerema”) and Tristin Hopper, “Mark Carney’s not really supposed to be doing anything” (“Hopper”), both in the National Post.

Jerema maintains “Mark Carney has been prime minister for all of a weekend, and he already can’t be bothered with the conventions of Canadian democracy.” He writes that Carney’s trips to Britain and France and his setting the carbon tax to zero did not reflect the government’s agenda before prorogation of Parliament, but new activities Carney determined himself. In doing so, argues Jerema, Carney is ignoring the “caretaker convention”: “Normally reserved for government ministers campaigning during an election, constitutional experts argue that it applies to Carney’s admittedly unique case, because he has not faced Parliament, and the government he leads cannot credibly claim to have the confidence of the House.”

Hopper refers to the Privy Council Office Guide (“the PCO Guide”), which he maintains, states that the caretaker convention “is a longstanding parliamentary tradition which holds that until a prime minister is able to ‘command the confidence of the House of Commons,’ he’s not allowed to wield the full powers of his office”.

Both articles cite constitutional scholars in support of the position that since Carney (as opposed to the Liberals) has not won the confidence of the House, he has “caretaker” status.

A thorough discussion of the caretaker convention, at one time called the “principle of restraint”, is found in David M Brock and JWJ Bowden, “Beyond the Writ: The Expansion of the Caretaker Convention in the Twenty-First Century” (2024 CanLIIDocs 892) (“Brock and Bowden”). Originally limiting government activities during the election itself (and the transition to a new government), the convention has expanded to apply to the pre-writ period, a specified period because of the introduction of fixed date elections under the Canada Elections Act. Also worth a look is Serge Dupont, “The Decision-Making and Operations of Government During Prorogation and Dissolution: Is Anybody Home?” (Dupont).

We are not as of this moment in an election. Nor is this a pre-writ period because, despite the expectation that Carney will call an election this coming Sunday, March 23rd, this is not a fixed date election. The argument that the caretaker convention applies rests on other grounds, which in my view confuse certain aspects of our system, deliberately or otherwise (I do not know).

First, I note that the PCO Guide does not refer to “prime minister” as Hopper states, but to “the Government” (Hopper does quote the PCO Guide correctly later in his Note):

In Canada’s Westminster form of government, convention requires that the Government command the confidence of the House of Commons at all times. While constitutionally a government retains full legal authority to govern during an election, as well as the responsibility to ensure that necessary government activity continues, it is expected to exercise restraint in its actions. This is often referred to as the “caretaker convention”. The rationale is that, following dissolution, there is no elected chamber to which the Government can be held accountable, and the Government cannot assume that it will command confidence in the next Parliament.

The conventional restriction limiting the extent to which the Government should exercise its authority applies whether it has lost a vote of confidence in the House, whether the Prime Minister has asked for dissolution on his or her own initiative, or whether Parliament has been dissolved in advance of an election date set by legislation. It also applies to the outgoing government during any post-election transition to a successor government. This caretaker period begins when the Government has lost a vote of non-confidence or Parliament has been dissolved. It ends when a new government is sworn in, or when an election result returning an incumbent government is clear.

Parliament has not been dissolved in any of the three ways identified by the PCO Guide. It is true that Parliament is not in session and this means that the government, which remains in office, cannot undertake any activity or make a decision that requires Parliament’s approval. That occurs by definition. It is also true that the Prime Minister is expected to call an election in the near future (within days), but this not the only option. He could seek to extend the prorogation, which would continue to limit the government’s activities and decisions to the extent it requires parliamentary approval, but which would not be very savvy politically. He could also let Parliament sit again, although he would not be there, since does not hold a seat in the House; however, if there weren’t an election immediately, there would be one very soon, when the government lost the confidence of the House. So in a way, one might be tempted to consider this a “deemed” pre-writ period, but it isn’t a legal pre-writ period under the Canada Elections Act. The caretaker convention does not apply.

It might be argued that despite its non-applicability, the government should act as if it applies because everyone knows there will be an election. In fact, a considerable time has passed when there has been an expectation of an election and the caretaker convention, on this theory, would have applied during that period. Not, I suggest, a very effective way to proceed.

The second reason those maintaining the convention applies say it does is because the Prime Minister has not “commanded the confidence of the House”. Again, it is true that he does not have a seat in the House. Here I believe there is a confusion between “the government” and “the prime minister” and about exactly what the prime minister is. We have developed a habit in Canada of treating the prime minister as if he or she is a president, someone for whom we vote in an election. We do not, of course, vote for the prime minister; even if we live in the riding which the person will be prime minister represents, we are voting for that person as a member of parliament. The prime minister is the leader of the party that forms the government, as appointed by the Governor General.

Commentators also suggest that even if the Liberals continue to have the confidence of Parliament, this doesn’t matter because Carney must have the confidence. As Hopper points out, the last confidence vote was last year on December 9th, “to express ‘confidence in the Prime Minister’”. That referred to Prime Minister Trudeau, in whom Parliament did express confidence. To this, I say, “so what”. It was up to the Liberals to decide whether they had confidence in Trudeau and their view being eventually quite clear, he resigned. Having said that, I do not suggest that one can simply slip Mark Carney into that motion, even if Trudeau’s name was not used. The point is, is that it is the party that matters.

Brock and Bowden refer to several examples of actions governments (in the person of prime ministers) have taken during the restraint or caretaker period to assess, or indicate what others have assessed, fall within the range of acceptable conduct. None of these is the same as the current situation. A situation that is close is the circumstance of John Turner. Although he announced he would resign when his successor was chosen, Prime Minister Pierre Elliott Trudeau made a number of patronage appointments, which his successor, Turner, said he would honour. Turner was unelected when he was made leader and the House had risen for the summer. The Liberals had not lost the confidence of the House. Similar, although not identical, to circumstances today.

With respect to the Turner situation, Brock and Bowden state, “the Turner Government, by definition, did not and could not hold the confidence of the House of Commons” (p.12). They seem to base this conclusion on the fact that Turner did not hold a seat in the House because if Turner had won the election, which he did not, he would continue to be prime minister. Presumably, therefore, they would conclude that Carney could not hold the confidence of the House. As they note, there is no requirement that the prime minister hold a seat in the House (or be elected at all), although not doing so would pose practical and other challenges. It must be, therefore, possible for an unelected prime minister (as a result of being selected as head of the governing party) to enjoy the confidence of Parliament, although he or she would be expected to seek a seat as soon as possible. As a practical matter, it is unlikely that a governing party whose leader (and thus prime minister) was unelected would hold the confidence of Parliament for long, unless it held a majority. And it would be inconsistent with responsible government for a prime minister to remain unelected beyond a time when he or should could be elected.

Brock and Bowden do not address the possible application of the caretaker convention during a prorogation with an unelected prime minister. Dupont does talk about the role of government during prorogation, but not about the application of the convention to an unelected prime minister. As he says succinctly, during prorogation, “there is currently a working government, but not a working Parliament.” He points out, “While the government under prorogation retains all of its normal authorities, in practice, both before and after March 9 [when a new Liberal leader was selected], its political legitimacy may be considered tenuous. Politically, this can require restraint in decisions or actions that would bind a future Prime Minister and government.” However, political restraint is not the same as restraint by virtue of the caretaker convention, which must be seen as a constitutional convention and a “rule” under the PCO Guide which identifies the kind of legitimate activities falling under convention, including those necessitated by an emergency or “urgency”. This doesn’t change because Carney is unelected.

Criticism of Carney seems to suggest that he should sit on his hands until the election when he can seek a seat in the House (and, of course, until the Liberals are able to form a government, should that occur). Even if the caretaker convention were to extend during prorogation to the period after the selection of a new (unelected) leader of a governing party and until the calling of the election and then formation of a new government, the government, including the prime minister, can carry out certain activities. Visiting other countries when Canada is under threat from the United States in order to firm up alliances would, I argue, conform to the range of acceptable activities. The stronger argument, however, is that the Liberals as the governing party, despite prorogation, can carry on business that does not require the approval of Parliament and that includes activities of its leader, the prime minister.