Prime Minister Justin Trudeau regularly criticized other governments for proroguing Parliament in the past, but now his government finds itself defending the action in court.
The Justice Centre for Constitutional Freedoms (JCCF), representing two Nova Scotians who are taking the federal government to court over Trudeau’s decision to advise the Governor General to prorogue Parliament, argued the prime minister’s decision went against the guiding principle of “good governance” as spelled out in the section 91 of the Constitution Act, 1867 and that it fell outside the proper scope of his executive power.
The challenge additionally argued that Trudeau did not provide sufficient grounds or a proper explanation for the decision when he announced it in his “resignation speech” press conference on Jan. 6.
During that press conference, Trudeau relied on just two reasons for the decision: first to “reset” Parliament based on his opinion that it has been “paralyzed for months.” And second, to permit the Liberal Party “time to select a new party leader.”
Trudeau did not explain why an election was not a preferable solution, according to the Memorandum of Facts and Laws presented by the applicants.
On Jan. 18, Federal Court Chief Justice Paul Crampton expedited the case and heard from both JCCF counsel and federal government lawyers in the first of a two-day hearing in Ottawa this week.
The first day of hearings was eventful. First, there was a last minute location change from the Supreme Court to the federal Court of Appeals. Then, a fire alarm forced a somewhat frantic evacuation into an Ottawa snowstorm during lunch break.
Upon returning to the courtroom, James Manson, lead counsel for the JCCF, argued that it’s up to the courts to establish the scope of reasonable justification for requesting prorogation and, in doing so, to limit the power of the executive and to preserve the sovereignty of the legislative branch. Otherwise, Manson argued, there would be no reasonable limit on executive power.
Prorogation has never been challenged in the Canadian court system untl now.
In Sep. 2019, however, a challenge to prorogation was successful in the UK, creating a fascinating cross-jurisdictional precedent.
In that case, known colloquially as Miller II, an applicant similarly challenged then-UK Prime Minister Boris Johnson’s advice to prorogue Parliament as a prelude to Brexit.
In Miller II, the UK Supreme Court ruled prorogation would be unlawful if it resulted in “frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.”
Even if Miller II did not exist, though, Manson said his submission would be unchanged: prorogation is not suitable given the existential threats to Canadian sovereignty and economic security presented by the newly re-elected Trump administration.
“The Liberal Party can absolutely have and proceed with a leadership race even if Parliament were in session,” Manson said before calling the situation “remarkable and unprecedented.”
Federal lawyers, meanwhile, said the basis for the current prorogation and its duration are virtually incontestable given the nature of executive powers and prorogation itself.
“Hypothetically,” the judge asked one of the Trudeau government lawyers, “could a government use prorogation to, oh let’s say, avoid a confidence motion?”
“There are no limits on prorogation,” the Trudeau government lawyer submitted in return.