By: Douglas A. Alderson, MA (Toronto), LLM (Yale)
When the Governor General prorogued Parliament on January 6th of this year on the advice of the Prime Minister, Justin Trudeau, she occasioned yet another opportunity for the judiciary to become involved in Parliament’s business. Unlike the Court’s earlier interference with their decision in Canada (AG) v. Power, this time around there is an actual legitimate reason for the courts to become involved and act to preserve our constitutional order.
The Rule of Law, Parliamentary Supremacy, and Responsible Government
Canada’s constitutional order is founded on the principles of the Rule of Law, Parliamentary Supremacy, and Responsible Government.
The Rule of Law means, inter alia, that no one, not even the Crown, is above the law and that the Crown in exercising its powers, even the prerogative power, must do so ACCORDING TO LAW.
Parliamentary Supremacy and Responsible Government means, inter alia, that the government of the day is accountable to the House of Commons and only enjoys being the government to the extent that it has the confidence of the House. To lose the confidence of the House is to lose the right and legitimacy to govern. In practical terms, loss of confidence means a General Election.
Mr. Trudeau, knowing full well that he and his government had lost the confidence of the House, made the decision to advise the Governor General to prorogue the current session of Parliament in order to avoid a vote of non-confidence. The immediate effect has been to escape accountability, an accountability long desired by both Parliament and the electorate. In other words, the use of prorogation prevents one of the key elements of Parliament Supremacy, namely holding the government accountable.
Judicial Review of the Prorogation
One response to the prorogation has been a Notice of Judicial Review being filed in the Federal Court on January 8th. The applicants, David MacKinnon and Aris Lavranos, both Canadian citizens, seek to have the prorogation of Parliament set aside allowing for the current session of Parliament to resume, which had been set for January 27 2025. The Applicants are, in effect, asking the court to allow Parliament to do its job, and should that job result in a federal election, then so be it—hardly the end of the world, unless of course given current polling trends you happen to be a Liberal.
Opposition to this request for Judicial Review has been surprising as there appears to be a number of academics who have all of a sudden found a new respect for judicial restraint. While we normally welcome calls for judicial restraint, in the present case, however, such calls are misplaced and ignore hundreds of years of constitutional history and evolution. Indeed, Judicial Review of the prorogation power strengthens our constitutional system with its separation of powers by safeguarding against prorogation being used to prevent Parliament from carrying out its proper functions in holding the government accountable.
One of the hallmarks of our current Westminster model of Parliamentary democracy has been the gradual recognition of Parliamentary Supremacy and the curtailment of the Royal Prerogative. In other words, is it a firmly established principle of Constitutional Law that the Crown’s prerogatives, including the power of prorogation, have limits and are subject to Parliament and review by the courts. The exercise of the prerogative power must therefore be in accordance with applicable statutes, the common law and constitutional principles.
The power to prorogue Parliament is an exercise of the Royal Prerogative as Parliament itself does not decide when it should be prorogued. This prerogative power is exercised by the Crown (Governor General) on the advice of the Prime Minster. While there may be any number of legitimate reasons to prorogue Parliament, Prorogation is a legal act and as such its exercise is not immune from judicial review—that is, after all, what courts are there for: to judge the legality of government’s power, whether legislative or executive. Moreover, as the prerogative power to prorogue Parliament is only exercised on the advice of the Prime Minister, it necessarily requires a review of whether that advice was lawful in the first place. If the Prime Minster’s advice was not lawful, then it follows that the prorogation is a nullity.
Was Trudeau’s Advice Lawful?
So, is Mr. Trudeau’s advice lawful? In considering this question, one must start from the premise that Parliamentary Supremacy is the foundation upon which the exercise of the prerogative power will be measured. Or, to put the question another way: is Mr. Trudeau’s advice consistent with the principle of Parliamentary Supremacy which includes a limitation of the Royal Prerogative?
The question of limits on the prerogative to prorogue was considered by an eleven-member panel of the English Supreme Court in the leading case of R (Miller) v. The Prime Minister, [2019] UKSC 41. In that case, a unanimous Supreme Court ruled that Prime Minister Boris Johnson’s advice to the Queen to prorogue Parliament was unlawful as the advice was given to simply avoid Parliamentary scrutiny and interference with the negotiations between the government and the European Union regarding the UK’s exit from the EU. While not binding on Canadian courts, the reasoning in R (Miller) does carry great persuasive weight, particularly the Court’s unanimous holding that
…a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of 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. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. [Emphasis added.]
The question, therefore, is: Did Mr. Trudeau have a lawful reason to advise the Governor General to prorogue Parliament thereby preventing Parliament from carrying out its constitutional function “as the body responsible for the supervision of the executive”?
The answer to this question is: No.
Mr. Trudeau, by his own words at his Press Conference of January 6th, made it very clear that his reasons for seeking prorogation was to allow time for a new Liberal Leader to be chosen in the hope that this might “re-set” Parliament “and allow people to actually focus on serving Canadians in this House and with their work the way Canadians deserve.” This is an excuse, not a constitutionally justifiable reason. Indeed, the litany of woes recited by Mr. Trudeau already have a remedy at hand, it is called a “General Election.”
Trudeau a Disaster in the Making
The trainwreck that is the Liberal government has been seen coming on for years now, since they were first returned in 2019 with a minority government. The second minority government of 2021 should have been a wake-up call to Liberals that Trudeau had reached his “best before” date and that new leadership was called for. Now, in 2025, the fact that the Liberals find themselves in a leadership void is no legitimate reason to prorogue Parliament.
Unfortunately for the Liberals, Mr. Trudeau is not the cause of the current lack of confidence, but merely the symptom. It is the Liberal government policies of the last nine and half years that has led to this lack of confidence in the government. It is high time that both Mr. Trudeau and his Liberal government be shown the door and escorted via the ballot box to “that great dust heap called ‘history’ ”.
Time to Restore Responsible Government
We should be very clear: prorogation isn’t simply “re-setting” Parliament with a new Speech from the Throne outlining the government’s legislative priorities for the coming session. A prorogued Parliament does not sit, nor do its committees continue with their work. When Parliament stands prorogued, its essential role in supervising the executive and holding not only the Prime Minster, but all ministers, accountable stops. No questions are asked, no documents can be demanded and tabled, and no information can be conveyed to the public respecting the conduct of the government. Under the current conditions, Mr. Trudeau’s advice to prorogue Parliament is a direct assault on Responsible Government. Short of a General Election, only the courts can act to restore constitutional order and sanity.