The prorogation of Parliament was the subject of heated debate at the Federal Court in Ottawa on Thursday and Friday.
Lawyers representing citizens challenging Parliament’s current prorogation argued there needs to be limits on when Parliament can be prorogued. But lawyers for the government argued the courts have no authority to make such decisions.
“There ought to be some guardrails put on the prime minister’s power to advise prorogation,” lawyer James Manson told Chief Justice Paul Crampton on Thursday. “Otherwise, there’s just no limit to what would happen with the executive.”
Manson represents two men — David MacKinnon and Aris Lavranos — who filed a lawsuit on Jan. 8 asking the Federal Court to review Prime Minister Justin Trudeau’s decision to prorogue Parliament and declare it invalid.
The men asked for a quick decision because of the political uncertainty created by the U.S.’s threat to impose tariffs on Canadian goods.
On Jan. 6, Trudeau announced that he had asked Governor General Mary Simon to prorogue Parliament until March 24. Prorogation ends the current session of Parliament, and puts an end to virtually all legislative work. The House of Commons and Senate do not sit, and parliamentary committees stop their work.
The case has garnered significant public attention. On Jan. 17, Justice Crampton ruled to hear the case quicker than usual. The possibility of the U.S. imposing tariffs on Canada while Parliament is prorogued is “exceptional and compelling,” he wrote.
Despite heavy snowfall in Ottawa on Thursday, several citizens attended the hearing in-person. One stood up to speak during Thursday morning’s hearing and was asked by Justice Crampton to sit down.
Manson argued that prorogation denies citizens the ability to be represented by elected members of Parliament, in violation of their constitutional rights.
Sometimes, prorogation is necessary, Manson told the court. But Trudeau did not provide good reasons to justify his decision.
In his Jan. 6 announcement, Trudeau said he had asked for Parliament to be prorogued so the Liberal Party could hold a leadership race.
Prorogation is not necessary for a leadership race, said Manson. “A leadership race has nothing to do with the mechanics of Parliament.”
Ballot box
Canadian courts have never before been asked to weigh in on whether a prorogation was lawful.
The only case that considers this question is from the United Kingdom. In 2019, the U.K.’s Supreme Court unanimously ruled that it was unlawful for then Prime Minister Boris Johnson to prorogue Parliament while Parliament was determining the conditions under which the U.K. would leave the European Union.
But lawyers for the government argued that that decision has no bearing on Canadian courts. Even if it did, courts should not be deciding the rules under which Parliament is prorogued.
Prorogation is connected to unwritten constitutional conventions, said Elizabeth Richards, a lawyer for the government. It is not connected to any law. Because of that, the courts cannot review it, she said.
Richards also disputed the claim that prorogation leaves the government unaccountable. If Canadians disagree with prorogation, they can vote the government out at the next election, she said.
“The government will be held to account at the ballot box,” she said.
While the threat of tariffs is significant, Richards questioned whether prorogation during this time is exceptional. Parliament was prorogued during both world wars and the Covid pandemic, she told the court.
Making rules about when prorogation should occur is “for Parliament to decide, and Parliament only.”
‘Democratic instant gratification’
The Justice Centre for Constitutional Freedoms, a legal advocacy organization, funded the lawyers representing MacKinnon and Lavranos.
Three organizations intervened in the case. The BC Civil Liberties Association and Democracy Watch, a non-profit that advocates for democratic reform, agreed there needs to be limits on prorogation.
Political parties will not create legislation to limit their ability to prorogue Parliament, lawyers for Democracy Watch told the court.
But the third intervenor, the University of Ottawa’s Constitutional Law Initiative, said the court should not review the government’s prorogation decision. Doing so would make the court too political and cause Canadians to lose trust in the court, lawyer Andrew Bernstein said.
“The fact that democracy is important doesn’t give us entitlement to democratic instant gratification,” he said.
“Any time an unelected court starts telling an elected prime minister what to do, we start having a question about what exactly is democracy.”
Justice Crampton did not say when his decision would be released, but that he would do it before the issue “becomes moot.”
“Any time an unelected court starts telling an elected prime minister what to do, we start having a question about what exactly is democracy.”!????? Ridiculous.
Courts are unelected for the best reason on earth: they need very specific qualifications, so the merit principle wins out, obviously. Elected or not, politicians are controlled by the law, and the courts that interpret and rule on the law.