The court said applicants challenging Trudeau’s decision failed to show he exceeded his authority
A federal court has dismissed an application seeking to end Prime Minister Justin Trudeau’s prorogation of Parliament, ruling that the application failed to show Trudeau lacked the authority to do so.
However, the court also rejected several arguments made by the federal government. These include the government’s stance that the federal court lacks the jurisdiction to review Trudeau’s decision, and that the question of whether Trudeau overstepped his authority is not justiciable.
In his March 6th order, Chief Justice of the Federal Court Paul Crampton wrote that he understood why the applicants, who are represented by Charter Advocates Canada, might find the circumstances of Trudeau’s decision “troubling.”
Crampton noted that the prime minister’s move occurred “in a broader context in which the executive branch has been increasingly drawing functions away from the legislative branch by ‘the concentration of power to the cabinet and the prime minister’s office.’”
Still, the applicants “bore the burden to demonstrate that the decision, viewed in its entirety, exceeded the scope of the prime minister’s authority,” the chief justice said. He concluded that they failed to meet that burden.
On Monday, a spokesperson for the Privy Council Office acknowledged that the court found that prorogation was lawful. The spokesperson said the government is reviewing the decision and declined to comment further.
Andre Memauri, counsel for Charter Advocates Canada, had a mixed reaction to the court’s decision.
“What we know at this point is that the question of whether a prime minister's advice to a governor general to prorogue Parliament exceeded his authority, is a question with a sufficient legal component to warrant judicial review. It is a prerogative power which is not immune to review, and this is itself an important outcome,” Memauri told Canadian Lawyer in an email.
“However, it is troubling that the court found a prime minister does not need to give reasons for his decision but because he did, those reasons are subject to review – an outcome which may have unfortunate implications for further prorogations resulting in executive action without any stated justification,” Memauri added.
Nova Scotia residents David MacKinnon and Aris Lavranos filed the application challenging Trudeau’s prorogation of Parliament in January. According to one of the applicants’ lawyers, the goal was to clarify the scope of the prime minister’s power.
Over a two-day hearing in February, Crampton heard arguments from the applicants, the federal government, and three intervenors. Crampton had previously agreed to expedite the hearing in order to resolve the application before the prorogation period ends on March 24.
In his order, Crampton said the court had been tasked with reviewing multiple issues. These include whether the court has the jurisdiction to review Trudeau’s decision, whether the allegation of Trudeau overstepping his authority was justiciable, and whether the prime minister had the power to prorogue Parliament.
The government argued that the court did not have jurisdiction over Trudeau’s decision because when a prime minister advises the governor general to prorogue Parliament, they do so in accordance with constitutional convention rather than constitutional law. The government argued the courts have the authority to review the latter, but not the former.
The government also said that because the governor general, and not Trudeau himself, technically prorogued Parliament, Trudeau’s advice to the governor general is not subject to judicial review.
Crampton disagreed with both arguments. He noted that when the prime minister gives advice regarding prerogative powers like prorogation, that advice is considered an exercise of Crown prerogative power. In certain circumstances, courts are allowed to review “the exercise of Crown prerogative powers,” he said.
The chief justice also rejected the government’s argument that Trudeau’s advice has no real legal impact. Noting that there are no examples of a governor general deciding to prorogue Parliament without the advice of a prime minister, Crampton said the government’s “contention that the prime minister’s advice cannot affect legal rights, impose legal obligations, or cause prejudicial effects fails to reflect the reality of the situation.
“The prime minister’s advice is in fact a critical lynchpin of the exercise of the Crown’s prerogative to prorogue Parliament,” he said.
On the justiciability issue, Crampton was divided. He agreed with the applicants that the question of whether Trudeau exceeded his authority was justiciable, stating that the court can consider whether Trudeau exceeded written and unwritten provisions of the Constitution and other limits.
However, he said other issues identified by the applicants were not justiciable. These include their arguments that elections, and not a prorogation, are the “only legitimate and democratic mechanism by which a ‘reset’ of Parliament can be achieved” and that an 11-week prorogation was unreasonable.
Crampton said that courts can’t decide how the executive decides to exercise the power it’s entitled to.
In the end, however, Crampton found that the applicants failed to show that Trudeau exceeded any written Constitutional limits, unwritten principles, or other legal principles.
The applicants also failed to demonstrate that Trudeau’s move was “part of a stratagem designed specifically to interrupt the business of Parliament and stymie the publicly stated intent of a majority of the House of Commons to bring a motion for non-confidence in the government,” Crampton said.
He added that it was impossible to disentangle Trudeau’s partisan reasons for proroguing Parliament from the other reasons he cited for his decision.
“On their face, those other reasons related either to the business of Parliament or to what appears to be the prime minister’s view of the public interest,” the chief justice said. “It is not the court’s role to question the merits or wisdom of those reasons.”
