What you need to know about the caretaker convention

With the 2021 federal election expected to take place on September 20th, changes to the daily operation of federal government will occur by virtue of a well-established constitutional principle, known as the “caretaker convention”. 

The caretaker convention dictates that governments should act with restraint from the day that the election is called (i.e., the issuing of the writs) to the day that a new government is sworn in, or when an election result returning the incumbent government is clear.  While the daily operations of government must carry on, certain principles guide Ministers and public servants when determining the type and scope of government business that should continue during this period of time.

This election law primer is intended to convey some important considerations with regards to the operation of the federal government during an election period through to the conclusion of the caretaker period.  It is intended as general guidance only. If you have any specific questions, please contact our Public Sector experts, Awanish Sinha, Hartley Lefton, Amanda D. Iarusso, Adam Kanji, Jacob Klugsberg, or Andrew Butler.  We would be pleased to assist you.

 

What is the caretaker convention?

When Prime Minister Justin Trudeau advised Her Excellency The Rt. Hon. Mary Simon, Governor General of Canada, to dissolve the 43rd Parliament and issue the writs for the 44th general election (i.e., calling the election), Canada entered what is known as the “caretaker period”.  As noted above, the caretaker period ends when a new government is sworn in or when an election result is clear that the incumbent government will be returned.[1]

The caretaker convention holds that, to the extent possible, government activity in matters of policy, expenditure, and appointments should be restricted to matters that are at least one of the following: (1) routine; (2) non-controversial; (3) urgent or in the public interest; (4) reversible by a new government without undue cost or disruption; or (5) agreed to by opposition parties after consultation.[2]  Governments should confine their activities to necessary business and avoid binding future governments as much as possible.[3]

The operation of this convention does not prohibit the current government from acting or making decisions. On the contrary, it is expected that Ministers and public servants more generally will continue to fulfill their democratic mandate until the very end. The government maintains its full portfolio of powers under statute, the royal prerogative, and the common law.[4]  While matters that may not be routine or necessary for good government should be approached with caution, there is no explicit legal sanction for a breach of this convention.

The origins of the caretaker convention can be found in the basic tenets underpinning our parliamentary democracy and our system of responsible government.  The role of members of Parliament, including the opposition parties, is to hold to account the government of the day for its fundamental policy decisions.  When Parliament is dissolved through the writs of election, members of Parliament, including those forming the opposition parties, are no longer able to fulfill this fundamental task.  By definition, in a dissolved Parliament the government cannot command the confidence of the House of Commons.

In its 2019 election guidelines, the Privy Council Office advised that a Minister must continue to fulfill their essential duties and follow normal Cabinet procedures.[5]  However, they should not act in matters that will require approval of Cabinet or the Treasury Board, unless such acts are necessary. Similarly, new regulatory initiatives should not be commenced and stakeholders should not be proactively engaged.  Communications from Ministers and their offices should also not be partisan in nature.[6]

 

Notable instances of the caretaker convention in action

Some of the most notable examples of the caretaker convention in operation can be seen during Prime Minister Joe Clark’s caretaker government between December 1979 and February 1980, as well as during Prime Minister Stephen Harper’s caretaker government between March and May 2011.

When the 31st Parliament was dissolved after Prime Minister Clark’s government lost a confidence vote, Prime Minister Clark refused to commit the government to a $2 billion purchase of F/A-18 Hornet fighter aircraft.  In this specific instance, the Government of Canada was in the middle of a procurement for fighter aircraft that was not completed at the time Parliament was dissolved.  Prime Minister Clark refused to award the contract during the caretaker period given that it would have committed the future government to significant expenditure, over what was likely to be a lengthy period of time.[7]

Similarly, in 2011, after the 41st general election was called, Prime Minister Harper’s Cabinet was grappling with Canada’s participation in NATO’s Operation Unified Protector in Libya.  Minister of Foreign Affairs Lawrence Cannon was contemplating attending international meetings on this topic and, given the urgency of doing so, consulted with the Official Opposition to receive their agreement prior to attending these meetings of international importance.[8]  These meetings were integral to Canada’s involvement in a major foreign policy initiative, and the Official Opposition agreed that it was appropriate for the Minister to attend.

 

The bottom line

Lobbyists, businesses, organizations, and individuals alike should be aware that when Parliament dissolves, novel legislative and regulatory initiatives are not likely to be introduced.  Major foreign policy initiatives will likely no longer be pursued.  Bills before the House of Commons and/or the Senate will cease to exist, pending potential revival by a newly-formed government, whether a return of the incumbent government or the election of a new government.  As partisan politics take centre stage for the next month, stakeholders seeking legislative or regulatory changes will have to refocus their efforts to monitoring the ebb and flow of the election, and to determining how their initiatives fit with the programmes and policies of the various political parties which are likely to drive Canada’s 44th Parliament. 

This article is part of our 2021 federal election series. You can access related content here.

Have questions about working with government and government agencies?  Public Sector at McCarthy Tétrault LLP can help. Please contactAwanish Sinha, Hartley Lefton, Amanda D. Iarusso, Adam Kanji, Jacob Klugsberg, or Andrew Butler if you have any questions or for assistance. 

Authors: Awanish Sinha, Hartley Lefton, Amanda D. Iarusso, Adam Kanji

 

[1] P. Hogg, Constitutional Law of Canada, 5th ed., at s. 9.4 [Constitutional Law of Canada].

[3] Financial Consumer Agency of Canada, 2019 Federal election: The Caretaker Convention explained (2019 transition binder) (September 2019).

[4] Constitutional Law of Canada, supra at s. 9.4.

[5] Privy Council 2019 Guidelines, supra.

[6] Privy Council 2019 Guidelines, supra.

[7] J. Wilson, “Constitutional Conventions and Election Campaigns: The Status of the Caretaker Convention in Canada,” Canadian Parliamentary Review (Winter 1995-1996).

[8] J. Bowden and N. MacDonald, “The Caretaker Convention: What Happens to the Federal Government in An Election”, The Hill Times (April 4, 2011); J. Bowden, “The Caretaker Convention in 2019”, Parliamentum (September 19, 2019).

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