OTTAWA—Two citizens calling for the courts to find the government’s prorogation of Parliament to be an unlawful decision are using a UK Supreme Court decision in their argument before a federal judge. In 2019, the UK’s Supreme Court found that country’s government had illegally prorogued Parliament.
David MacKinnon and Aris Lavranos, two Nova Scotia men, presented their case before a federal court on Feb. 13 against Prime Minister Justin Trudeau’s Jan. 6 decision to ask the governor general to prorogue Parliament. Trudeau, who said said he would be resigning as prime minister after the Liberal Party had chosen a new leader, said he asking Parliament to be suspended due to a deadlock in proceedings with the opposition.
The men say there needed to have been a “reasonable justification” for Trudeau to ask Governor General Mary Simon to prorogue Parliament until March 24. They have also asked for a declaration that this session of Parliament has not been prorogued.
James Manson, a lawyer for the two men, told Justice Paul Crampton on Feb. 13 the United Kingdom’s Supreme Court had reached a unanimous 2019 ruling that then-Prime Minister Boris Johnson’s decision to prorogue Parliament for five weeks was unlawful.
Manson said given that Canada and the UK share many of the same legal principles under common law, the Miller case should be followed in this instance. “There’s nothing in it that’s not safe waters in terms of constitutional interpretation. There’s nothing in it that’s foreign. And of course, the UK Supreme Court is a very esteemed court,” he said.
Manson said even if the Miller case did not exist, he would be making the same argument about protecting parliamentary sovereignty from an “unchecked executive.”
The two complainants are helped by the Justice Centre for Constitutional Freedoms in their legal challenge.
Justification for Prorogation
The government argues that it has met the only constitutional requirement, which is that Parliament sit at least once every 12 months.
“During the brief period of the prorogation, only five scheduled sitting weeks of the House of Commons will have been interrupted and the executive branch of government has and will continue to function effectively,” the government’s submission says.
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The challengers said that this can’t be the only limit on prorogation powers, adding that prorogation “is not universally available at his or her slightest whim.” They also say that Parliament, not the executive, is supreme, and that the government must retain the confidence of legislators.
Lawyer Manson argued that Trudeau’s stated justification for prorogation on Jan. 6 was that a reset was needed because Parliament had been “paralyzed” for months. Manson noted that this paralysis was due to Conservative filibustering over the Liberal government’s refusal to hand over documents to the House speaker related to the Sustainable Development Technology Canada’s (SDTC) misspending of taxpayers’ money.
“My submission is that Parliament was probably working quite well in holding the government to account in not letting go of this issue,” Manson said, noting that the absence of true paralysis in the House of Commons was also indicated by four pieces of legislation being successfully passed during that time.
Manson also mentioned the United States’ potential imposition of 25 percent tariffs, and said the prorogation of Parliament has interfered with Parliament’s ability to respond to an “unprecedented” threat.
Manson said it would be up to the court to establish the scope of prerogative powers in requesting prorogation, and argued that the limits of prorogation could include taking 11 weeks for a leadership race or avoiding a privilege motion related to the SDTC. “There cannot be an unlimited power on … the prorogation prerogative,” he said.
Government lawyers say that the prime minister’s advice to the governor general to prorogue Parliament is not subject to review by the courts. They said that the ultimate judgement rests with the electorate.
“Any intervention by a court would be contrary to binding authority and unwarranted,” the government said.
“The government will be accountable to the House of Commons and, ultimately, the electorate for the decision to prorogue.”
Justice Crampton said if the complainants could ultimately demonstrate that the advice the prime minister gave was contrary to the Constitution, then that would mean the prorogation is illegal.
The Canadian Press contributed to this report.
