House of Commons Procedure and Practice

Second Edition, 2009

House of Commons Procedure and Practice - 8. The Parliamentary Cycle - Prorogation and Dissolution

*   Prorogation

Prorogation of a Parliament, a prerogative act of the Crown taken on the advice of the Prime Minister,[108] results in the termination of a session. It is possible to prorogue a session of Parliament by proclamation when the House is sitting[109] or during an adjournment.[110] Both the House of Commons and the Senate then stand prorogued until the opening of the next session. Parliament meets for a new session in the normal manner on the date set in the proclamation. Parliament is prorogued either by the Governor General (or Deputy of the Governor General) in the Senate Chamber, or by proclamation published in the Canada Gazette.[111] When Parliament stands prorogued to a certain day, a subsequent proclamation (or proclamations) may be issued to advance or defer the date.[112]

Effects of Prorogation

Prorogation of a session brings to an end all proceedings before Parliament. With certain exceptions, unfinished business “dies” on the Order Paper and must be started anew in a subsequent session.

Bills which have not received Royal Assent before prorogation are “entirely terminated” and, in order to be proceeded with in the new session, must be reintroduced as if they had never existed.[113] On occasion, however, bills have been reinstated at the start of a new session at the same stage they had reached at the end of the previous session. This has been accomplished either with the unanimous consent of the House[114] or through the adoption of a motion to that effect, after notice and debate.[115] The House has also adopted provisional amendments to the Standing Orders to carry over legislation to the next session, following a prorogation.[116]

Since 2003, prorogation has had almost no practical effect on Private Members’ Business.[117] As a result of this significant exception to the termination of business principle, the List for the Consideration of Private Members’ Business established at the beginning of a Parliament, and all bills and motions in the Order of Precedence, as well as those outside of it, continue from session to session.[118] If consideration of an item at a certain stage had begun but had not been completed, the item is restored at the beginning of that stage, as if no debate had yet occurred. Private Members’ bills that were referred to a committee in the previous session are deemed referred back to the same committee. Private Members’ bills which have been read a third time and passed are sent again to the Senate.[119]

Committees, including special[120] and legislative committees, cease to exist and all orders of reference lapse.[121] Committee memberships, except the membership of the Standing Committee on Procedure and House Affairs, are terminated[122] and all Chairs and Vice-Chairs cease to hold office.[123] The Panel of Chairs for legislative committees also ceases to exist.[124]

In addition, when the House is prorogued, no documents may be tabled until the first day of the new session. If documents requested through an Order of the House or an Address to the Governor General have not been tabled at the time of prorogation, the requests carry over from session to session, within the same Parliament. They are considered to have been readopted at the start of the new session without requiring a motion to that effect.[125] Requests for government responses to committee reports and petitions survive in the same manner.[126]

In general, during a prorogation Members are released from their parliamentary duties until, in the new session, the House and its committees resume activities. However, the Speaker, the Deputy Speaker and the members of the Board of Internal Economy continue in office while the Deputy Chair and Assistant Deputy Chair of Committees of the Whole do not. Prorogation has no effect on the activities of Members involved in parliamentary associations or on international and interparliamentary exchange programs.

*   Dissolution

Dissolution terminates a Parliament, ending all business in the Senate and in the House of Commons, and is followed by a general election.[127] The date of the election is set in accordance with the provisions of the Canada Elections Act which stipulates that a general election must be held on the third Monday in October in the fourth calendar year following polling day from the last general election.[128] However, given that dissolution is a prerogative act of the Crown, the Governor General, on the advice of the Prime Minister, may dissolve Parliament any time before this date and issue a proclamation for a general election.[129]

Usually three proclamations are issued at the time of dissolution. The first is for the dissolution itself, stating that Parliament is dissolved and declaring that “the Senators and Members of Parliament are discharged from their meeting and attendance”. A second proclamation appears simultaneously; it calls the next Parliament and informs with regard to the issuance of writs of election, the date set for polling and the date set for the return of the writs. The third proclamation fixes the date on which Parliament is summoned to meet, sometime following the return of the writs.[130] The date of this summons may be changed through the issuance of a further proclamation.[131]

A Parliament may be dissolved in accordance with the provisions set down in the Canada Elections Act or earlier, regardless of whether the House is scheduled to meet or not that day.[132] If the House is sitting and there is not to be a prorogation ceremony in the Senate Chamber, the dissolution is usually announced to the House by the Prime Minister or another Minister.[133] The Speaker then leaves the Chair.

The demise of the Crown does not have the effect of dissolving Parliament.[134] In ancient British practice and until 1843 in Canada, the demise of the Crown did result in an automatic dissolution of Parliament. Because the summoning of Parliament is a royal prerogative and Parliament sits at the pleasure of the Crown, its demise meant a lapsing of the summons and thus dissolution.[135] In 1843, an act was passed in the Province of Canada providing that a Parliament in existence at the time of any future demise of the Crown should continue as it would have otherwise, unless dissolved by the Crown.[136] Similar legislation existed in other provinces prior to Confederation.[137] The law was re‑enacted in the First Session of the First Parliament (1867‑72) of Canada.[138]

Effects of Dissolution

With dissolution, all business of the House is terminated. The Speaker, the Deputy Speaker and the members of the Board of Internal Economy continue in office for the acquittal of certain administrative duties until they are replaced in a new Parliament.[139] For the purposes of certain allowances payable to them, Members of the House of Commons at the time of dissolution are deemed to remain so until the date of the general election.[140] Members’ offices, both in Ottawa and in their constituencies, remain open in order to allow Members and their staff to provide services to constituents.[141] As the office budget for Members is drawn from public funds, Members’ offices and staff may not be used for electoral purposes.

All items on the Order Paper including government and private Members’ bills die.[142] The government’s obligation to provide answers to written questions, to respond to petitions or to produce papers requested by the House also ends with dissolution. The government must wait until the new Parliament is in session before tabling any document that is required pursuant to an act, resolution or Standing Order.

Committees cease to exist until the House reconstitutes them following the election. All orders of reference expire, and the Chairs and Vice-Chairs of all committees cease to hold office. The government is no longer required to provide responses to committee reports.

The executive committees of interparliamentary associations carry over from one Parliament to another. However, as a general rule, the activities being organized by the associations are postponed during a dissolution. Since multilateral assemblies continue to meet, Canada’s representation is usually ensured by Senators.[143] Once an election has been held, and prior to the start of a new Parliament, both Senators and re‑elected Members may participate. Official parliamentary exchange programs with other assemblies are also usually postponed.

Expiration of the House of Commons

The Constitution states that no House “shall continue for longer than five years”.[144] Mindful of this deadline, all governments since Confederation have recommended that the Governor General dissolve Parliament before the date at which such dissolution would have been constitutionally required. In some cases, the dissolution took place within days of when the House would have expired through effluxion of time.[145] Since 2007, the Canada Elections Act has contained provisions limiting the duration of a Parliament to four years.[146]

Extension of Life of the House of Commons

Since 1949, the Constitution has provided that in time of “real or apprehended war, invasion or insurrection,” the five‑year limit of the lifetime of the House of Commons “may be continued by Parliament” if no more than one‑third of the Members oppose the continuation.[147] Prior to the existence of this provision, such an extension required a constitutional amendment, a means resorted to only once. Due to circumstances relating to World War I, the life of the Twelfth Parliament (1911‑17) was extended in this way for one year—from 1916 to 1917.[148]

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[108] See Minute of a Meeting of the Committee of the Privy Council, P.C. 3374, October 25, 1935, “Memorandum regarding certain of the functions of the Prime Minister”, which stated that recommendations (to the Crown) concerning the convocation and dissolution of Parliament are the “special prerogatives” of the Prime Minister.

[109] On December 4, 2008, the Governor General prorogued the First Session of the Fortieth Parliament. The Minister of Justice Rob Nicholson rose in the House on a point of order to inform the House of the prorogation. The Speaker subsequently left the Chair (Journals, p. 101, Debates, p. 621). On several occasions, a session has been ended by prorogation in the morning, with the new session starting in the afternoon of the same day. See, for example, Journals, January 8, 1957, pp. 19‑21; May 8, 1967, pp. 1827‑31; October 12, 1976, pp. 1435‑6.

[110] For example, on November 7, 2003, the House adjourned until November 17, 2003 (Journals, November 7, 2003, p. 1263), but the Second Session of the Thirty-Seventh Parliament (2001‑04) was prorogued by proclamation on November 14, 2003. In 2007, the House adjourned on June 22, 2007, until September 17, 2007 (Journals, June 22, 2007, p. 1585). The First Session of the Thirty-Ninth Parliament (2006‑08) was prorogued by proclamation on September 14, 2007. Ten days prior, the Prime Minister had announced in a press release that he would be recommending to the Governor General that Parliament be prorogued.

[111] In recent years, the practice has been for proclamations to be published in the Canada Gazette while the House is adjourned. The Governor General last prorogued a session in the Senate in 1983 (Journals of the Senate, November 30, 1983, pp. 3429‑43).

[112] For example, the opening of the Fifth Session of the Twenty‑Fourth Parliament (1958‑62), originally set for November 7, 1961, was changed by successive proclamations to December 16, 1961, then to January 25, 1962 and finally to January 18, 1962. The Second Session of the Thirty‑Seventh Parliament (2001‑04) was prorogued on November 14, 2003, with the next session set to begin on January 12, 2004. A proclamation was then issued on January 7, 2004, summoning Parliament to meet on February 2, 2004. See Canada Gazette, Part II, Vol. 137, Extra, November 14, 2003; Part II, Vol. 138, Extra, January 9, 2004.

[113] Bourinot, 4th ed., pp. 102‑3.

[114] See, for example, Journals, October 21, 1970, p. 46; May 9, 1972, p. 281; March 8, 1974, pp. 25‑6; October 3, 1986, pp. 47‑8; October 25, 2007, pp. 63‑4. In 1986, the motion included a provision to bring forward from committee any evidence adduced and documents received in relation to the revived bills.

[115] See, for example, Journals, March 1, 1996, pp. 23‑4; March 4, 1996, pp. 33‑5; October 14, 1999, pp. 21, 24‑6; October 7, 2002, pp. 30‑5; February 6, 2004, pp. 25, 27; February 9, 2004, pp. 29‑31; February 10, 2004, pp. 34‑41.

[116] Journals, July 22, 1977, p. 1432; March 22, 1982, pp. 4626‑8.

[117] See the Third Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, presented to the House on February 28, 2003 (Journals, p. 492) and concurred in on March 17, 2003 (Journals, p. 495). See also the Committee’s First Report, presented to the House and concurred in on February 20, 2003 (Journals, p. 439).

[118] Standing Orders 86.1 and 87. See also Speaker Milliken’s statement in Debates, October 16, 2007, pp. 2‑3, and Deputy Speaker Blaikie’s statement in Debates, October 17, 2007, pp. 53‑4.

[119] See, for example, Journals, February 2, 2004, pp. 2‑3; October 16, 2007, pp. 2‑3. A private Member’s bill has also been reinstated after a dissolution (Journals, October 1, 1997, p. 56, Debates, p. 338). Senate private Members’ public bills may also be reinstated within the first 60 days of a new session pursuant to Standing Order 86.2. See, for example, Debates, February 13, 2004, p. 559; November 30, 2007, p. 1589. For further information, see Chapter 21, “Private Members’ Business”.

[120] Special committees may be reconstituted in the next session by Special Order. See, for example, the Special Committee on the Non-Medical Use of Drugs, which was reconstituted in the Second Session (2002‑03) of the Thirty‑Seventh Parliament (2001‑04) (Journals, October 7, 2003, pp. 1104‑5).

[121] However, the government is still required to table responses to committee reports in the subsequent session. See Standing Order 49. In 1991, two standing committees were revived by unanimous consent following a prorogation so that they could complete mandates received from the House in the previous session. The two committees ceased to exist once their reports were presented to the House (Journals, May 17, 1991, p. 42).

[122] Members of the Standing Committee on Procedure and House Affairs are named for the entire Parliament. See Standing Order 104(1).

[123] Following the adoption of a report from the Standing Committee on Procedure and House Affairs setting forth the membership of each committee, the first order of business for each committee in the new session is the election of a Chair.

[124] Standing Order 112.

[125] Standing Order 49.

[126] See Speaker Bosley’s ruling in Debates, June 27, 1986, p. 14969. For an unusual example of the revival of a matter of privilege, see Debates, February 6, 2004, pp. 243‑4.

[127] The Constitution provides for a maximum five‑year lifespan for the House, and for a sitting of Parliament at least once every 12 months (Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 50; Constitution Act, 1982, R.S. 1985, Appendix II, No. 44, ss. 4(1) and 5). For comments on this issue, see Boyer, J.P., Election Law in Canada: The Law and Procedure of Federal, Provincial and Territorial Elections, Vol. I, Toronto and Vancouver: Butterworths, 1987, pp. 164‑6.

[128] Canada Elections Act, S.C. 2000, c. 9, s. 56.1. If the third Monday in October is not suitable, for cultural, religious or other reasons, the Chief Electoral Officer may recommend another date to the Governor in Council. The alternate day must either be the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week (s. 56.2). For further information, see Chapter 4, “The House of Commons and Its Members”.

[129] Section 56.1(1) of the Canada Elections Act, S.C. 2000, c. 9 states: “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion”.

[130] Bourinot, 4th ed., pp. 104‑5. The practice in Canada has been not to dissolve Parliament without setting a date for its return; later proclamations may alter that date, but there is no period where the continuity of Parliament is in question.

[131] In 1997, for example, the proclamation of April 27, summoning Parliament to meet on June 23, was superseded by proclamations which changed the date of summons to August 1, then to August 29 and finally to September 22. On December 1, 2005, a proclamation was issued summoning the Thirty‑Ninth Parliament to meet on February 20, 2006. A second proclamation was later issued changing the date of the summons to April 3, 2006. A third proclamation was issued on March 17, 2006 setting the time of the summons.

[132] The dissolution of the Thirty‑Eighth Parliament (2004‑05) took place on the morning of November 29, 2005, prior to the opening of the sitting. No announcement was made in the Chamber.

[133] See, for example, Journals, February 1, 1958, p. 398, Debates, pp. 4199‑202; Journals, December 14, 1979, p. 350, Debates, p. 2363 (announced by the Prime Minister); Journals, March 26, 1979, p. 594, Debates, p. 4517 (announced by the Deputy Prime Minister and President of the Privy Council).

[134] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 2. A demise of the Crown can occur on the death, deposition or abdication of the Sovereign, at which time the Kingdom is transferred or demised to a successor.

[135] Wilding, N. and Laundy, P., An Encyclopaedia of Parliament, 4th ed., London: Cassell & Company Ltd., 1972, pp. 202‑3.

[136] An Act for continuing the Provincial Parliament in case of the demise of the Crown, S.C. 1843, c. 3.

[137] Bourinot, 4th ed., pp. 103‑4.

[138] An Act for continuing the Parliament of Canada, in case of the demise of the Crown, S.C. 1867‑68, c. 22.

[139] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 53.

[140] Parliament of Canada Act, R.S. 1985, c. P‑1, s. 69. In addition to their salary as a Member of Parliament, certain Members have received additional salaries associated with their positions in the House. Following the dissolution of the Thirty‑Seventh, Thirty‑Eighth and Thirty‑Ninth Parliaments, the Board of Internal Economy approved the continuation of the additional salaries and office budgets of the Speaker, the Deputy Speaker, opposition party Leaders, opposition House Leaders, and Whips of all parties as well as the continuation of the budgets for party research offices.

[141] On April 6, 2006, a question of privilege was raised by Tom Wappel (Scarborough Southwest) regarding his status as a Member during a period of dissolution. Mr. Wappel alleged that his privileges had been breached by the refusal of public servants to communicate with him during the election campaign. Speaker Milliken ruled that the complaint did not constitute a case of privilege. See Debates, April 6, 2006, pp. 55‑6; May 3, 2006, pp. 844‑5.

[142] A list of these items may be found in a document called the Status of House Business at Dissolution, which is published shortly after Parliament is dissolved.

[143] While there is no rule expressly forbidding Members from attending such assemblies, policies that govern the functioning of associations prohibit Members who are not seeking re-election from travelling with an association during a dissolution.

[144] Constitution Act, 1982, R.S. 1985, Appendix II, No. 44, s. 4(1). See also Constitution Act, 1867, R.S. 1985, Appendix II, No. 5, s. 50.

[145] The Seventh (1891‑96) and Seventeenth (1930‑35) Parliaments extended almost to the five‑year limit. In the first case, the date set for the return of the writs was April 25, 1891 (Journals, Vol. XXV (1891), p. x) and dissolution took place on April 24, 1896 (Journals, Vol. XXXI (1896), p. v). In the second case, the writs were returnable on August 18, 1930 (Journals, Vol. LXVIII, Special Session (1930), p. iv) and Parliament was dissolved on August 15, 1935 (Journals, Vol. LXXIV (1936), p. iii).

[146] An Act to amend the Canada Elections Act, S.C. 2007, c. 10. Canada Elections Act, S.C. 2000, c. 9, s. 56.1 states that “each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election”.

[147] British North America (No. 2) Act, 1949, R.S. 1985, Appendix II, No. 33; see also Constitution Act, 1982, R.S. 1985, Appendix II, No. 44, s. 4(2).

[148] British North America Act, 1916, R.S. 1985, Appendix II, No. 24. The writs for the general election for the Twelfth Parliament were returnable on October 7, 1911 (Journals, Vol. XLVI (1910‑11), p. 563). Dissolution occurred on October 6, 1917 (Journals, Vol. LIV (1918), p. iii). The Act was repealed by the Statute Law Revision Act, 1927.

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