Howard Anglin: The constitutional limits on Carney’s powers as prime minister

So, Canada has a new prime minister—almost, and sort of. Any day now, the Governor General will swear in Mark Carney as Canada’s twenty-fourth prime minister, but it’s a title he will hold with an asterisk until he meets the House of Commons and secures its confidence, either before or after an election.

Uniquely in Canadian history, Carney has ascended directly to the highest office, skipping the usual requirement of an election. We have had prime ministers without seats in the House of Commons before, but never one with absolutely no parliamentary experience before becoming prime minister.^{1John Turner had been a senior minister before re-entering politics as prime minister after an absence from the House; William Lyon Mackenzie King was an MP before becoming prime minister and subsequently lost his seat twice, re-entering the House each time after a by-election; John Abbott was already a senator; MacKenzie Bowell had been an MP and a senator.}

Carney was chosen from an Ozempic-thin field of candidates by a mix of Canadians and non-citizens, some as young as 14, who signed up for free to vote in an online poll hosted by the Liberal Party. On that dubious basis, he will now assemble a new(ish) ministry from Trudeau’s discarded minority.

Carney begins on thin constitutional ice, without the confidence of the House of Commons and facing three hostile opposition parties. This is not normal, to say the least. We are in uncharted territory here. For guidance we must look to established constitutional conventions and the principles that animate them.

Let’s start with the basics. As explained by the government during the 2021 election, “[i]n Canada’s form of democratic government, the legitimacy of the Government flows from its ability to command the confidence of the House of Commons.” When a government lacks that legitimacy, its powers are limited.

There are two main situations when the confidence of the House is in doubt. The first is when Parliament has been dissolved (which happens during an election). The second is when there is good reason to doubt that a prime minister who assumes power without an election will be able to command the confidence of the House (as here).^{2As explained by constitutional scholar Phillipe Lagassé here.}

In these cases, because the government’s legitimacy is in doubt, its powers are limited by a principle of restraint known as the “caretaker convention.” This allows the essential business of government to continue—providing services, paying public servants, &c.—but it otherwise admonishes ministers, including the prime minister, not to exercise the full powers of their offices.

Specifically, as the government explained in 2021, “[t]o the extent possible … government activity … in matters of policy, expenditure and appointments—should be restricted to matters that are:

a. routine, or
b. non-controversial, or
c. urgent and in the public interest, or
d. reversible by a new government without undue cost or disruption, or
e. agreed to by opposition parties (in those cases where consultation is appropriate).”

Other restrictions include that “departmental facilities and resources cannot be used for partisan purposes,” “all government-paid travel and hospitality expenses for ministers, ministers of state and their exempt staff must be for official government business,” and “Ministers’ and ministers of states’ departmental communications and public affairs units must not be involved in partisan matters.”

Finally, the convention provides that “ministers must: defer to the extent possible such matters as appointments, policy decisions, new spending or other initiatives, announcements, negotiations or consultations, non-routine contracts and grants and contributions.”

All this means that until Carney has met the House and secured its confidence, his government should not commit Canadian tax dollars to any new projects, enter into new contracts or legal settlements, make any non-routine public expenditures, or make any appointments that are not easily reversible.

If Carney tries to execute any orders-in-council inconsistent with the convention, the Governor General should quietly leave them unsigned in her inbox until the government has secured Parliament’s support.

Of course, Carney’s unorthodox “selection” is not the only unusual circumstance Canada faces. Facing American tariff threats, the caretaker convention’s exception for actions that are “urgent and in the public interest” may well come into play.

But an exception should not be converted into a general license to govern as usual. Exceptions to the caretaker convention only apply to decisions directly related to the exigencies that justify them, and even then the government should avoid acting unilaterally.

The Liberals may bridle at these restrictions, but they have only themselves to blame. By proroguing Parliament rather than immediately calling an election, Justin Trudeau stretched our constitution almost to the breaking point. Carney, his chosen successor, cannot be allowed to finish the job.