There can be little doubt that the recent prorogation of Parliament until March 24, announced by Prime Minister Justin Trudeau on Jan. 6, is in the best interests of the Liberal Party of Canada. All cabinet ministers, including the prime minister, will be exempt from parliamentary scrutiny for eleven weeks. Further, the minority Liberal government will be able to shield itself from a vote of non-confidence, also for eleven weeks, giving the Liberal Party all that time to choose its new leader.
However, using prorogation to escape a confidence vote effectively repudiates how Canadian democracy is supposed to work. The government, in order to govern, must retain the confidence of the majority of MPs. When the majority of MPs rescind that confidence and desire an election, prorogation then serves only the political interests of the governing party, not Canada’s interests. This situation is even more dire at a time when president-elect Trump threatens to impose a catastrophic 25 per cent tariff on Canadian goods entering the U.S.
If Mr. Trudeau was correct in asserting on Jan. 6 that “Parliament has been entirely seized by obstruction, by filibustering and a total lack of productivity,” then this problem could be easily cured by the dissolution of Parliament, followed by an election. “Obstruction and filibustering” could also be solved by way of a recess or adjournment of Parliament, rather than by shutting it down entirely through prorogation. Likewise, if Mr. Trudeau is correct when claiming that a “reset” is needed to lower “the temperature,” that could be achieved by way of a non-confidence motion resulting in new elections, or, again, by way of adjournment rather than prorogation.
Mr. Trudeau’s advice to the governor general about prorogation has now been challenged in the Federal Court of Canada by two Nova Scotians, David MacKinnon and Aris Lavranos. They rely on the 2019 United Kingdom Supreme Court decision in R (Miller) v. The Prime Minister. In Miller, the Court ruled that Prime Minister Boris Johnson had prorogued Parliament illegally, as a means of avoiding Parliamentary scrutiny over the government’s “Brexit” negotiations about how the United Kingdom would leave the European Union.
The U.K. Supreme Court ruled in Miller that the five-week prorogation (much longer than the usual one to three weeks) was motivated by the improper purpose of stymying parliamentary scrutiny of the executive, and of avoiding further debate in the run-up to the scheduled Oct. 31 exit day from the European Union. Prorogation meant that Parliament could not meet, debate, pass legislation, question ministers orally or in writing, or scrutinize the conduct of the prime minister. The court noted that “the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model.” The Court concluded that Johnson’s prorogation was illegal because it had “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.”
Prime Minister Boris Johnson used prorogation as a tool to advance his policy objective of including, as a bargaining chip during negotiations, a “no deal” exit from the European Union. Prime Minister Justin Trudeau now uses this prorogation to help his party avoid an immediate election, at a time when the party is highly unpopular and has no new leader to replace the outgoing one. In both cases, the sovereignty of Parliament is undermined, and Parliament cannot carry out its constitutional functions as the body responsible for the supervision of the executive. In both cases, prorogation stymies the will of the majority of MPs in a time of unprecedented economic uncertainty.
Prorogation may serve the interests of the prime minister’s party, but it does not further parliamentary business or the business of the government. Whether this prorogation violates the constitutional principles of parliamentary sovereignty and parliamentary accountability will soon be decided by the federal court.
National Post
John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms, which has provided lawyers to David MacKinnon and Aris Lavranos for their constitutional challenge.