Two Nova Scotia men who launched a lawsuit against the federal government’s prorogation of Parliament under former Prime Minister Justin Trudeau are appealing the Federal Court’s dismissal of their legal challenge.
Federal Court Chief Justice Paul Crampton ruled on March 6 that the applicants, David MacKinnon and Aris Lavranos, had “failed to demonstrate” that Trudeau’s prorogation of Parliament two months earlier had exceeded limits established by the Constitution or any other legal principles.
Crampton said that in the “absence of any transgression on any Charter rights,” the prime minister did not need to provide justification for why he prorogued Parliament on Jan. 6. He also said Trudeau’s choice to prorogue instead of immediately call an election was a “highly political choice” that could not be reviewed under any objective or legal standards.
In proroguing Parliament, Trudeau had said the House of Commons had become “paralyzed” by Conservative filibustering. The applicants argued that the reason for that was that the Liberal government was refusing to provide documents to the House speaker related to the Sustainable Development Technology Canada’s 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,” James Manson, a lawyer for the two men, argued as part of the court proceedings.
But Crampton said the issue of whether Parliament was truly paralyzed was also a “non-justiciable issue” that was “not possible to disentangle” in court.
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While Parliament was set to resume on March 24, new Liberal Leader and Prime Minister Mark Carney asked Governor General Mary Simon to prorogue Parliament for a federal election, which is set to happen on April 28.
Manson said his clients had reviewed the court decision and concluded that the court ruled “correctly on several of the issues raised in this matter.”
“Nonetheless, other important legal questions raised in this case, particularly concerning the limits of a prime minister’s authority to prorogue Parliament, remain unanswered,” he said.
The two men’s appeal specifically takes issue with Crampton refusing to adopt the “Miller Test,” referring to a 2019 ruling by the United Kingdom’s Supreme Court over then-Prime Minister Boris Johnson’s decision to prorogue Parliament for five weeks. The Supreme Court had ruled that this move was unlawful.
Crampton had ruled that the circumstances related to the U.K. case were “exceptional,” as the prorogation happened weeks before a major constitutional change was set to happen related to the country’s withdrawal from the European Union. Crampton said the circumstances causing this scenario had never arisen before and were unlikely to ever arise again, and dismissed the Miller Test.
MacKinnon and Lavranos argued in their April 4 appeal that Crampton failed to give consideration to their arguments as to why the Miller Test should be adopted in this case, and thus did not analyze the proper scope of a prime minister’s power to advise a governor general to prorogue Parliament.
The two men are also requesting the Federal Court of Appeal to attempt to “disentangle” Trudeau’s partisan reasons for proroguing Parliament from his non-partisan ones for advising the governor general to prorogue. They claim a failure to do so could invite future prime ministers to give no reasons at all for proroguing Parliament.
Co-counsel Andre Memauri said in a statement that while the prorogation has now concluded, “review of this decision is very important for clarity surrounding the lawful exercise of this extremely consequential prerogative power.”
The federal government has argued that it was justified in proroguing Parliament, and 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 said during court proceedings.
