Miller II, Part II?: The Legal Challenge to Trudeau’s Prorogation

Earlier this week, Canadian Prime Minister Justin Trudeau held a press convention to announce that he would resign as Prime Minister as soon as a brand new Liberal chief was chosen. He additionally revealed that he had suggested the Governor Normal to prorogue Parliament and that she had granted the request, with Parliament set to return on March 24.

The announcement ended months of hypothesis about Trudeau’s future. Till September 2024, the Liberal Celebration had been governing in a minority parliament with the help of a provide and confidence settlement with the New Democratic Celebration (NDP). The NDP withdrew their help for the settlement in September, and in late December, NDP chief Jagmeet Singh wrote in an open letter that the occasion meant to provoke a vote of no confidence in opposition to the federal government, becoming a member of Conservative efforts to topple the federal government. Calls from inside the Liberal occasion for Trudeau to resign additionally reached a fevered pitch in December after Finance Minister Chrystia Freeland resigned. She had been instructed she was being shuffled to make method for former Financial institution of Canada and Financial institution of England Governor Mark Carney to hitch the federal government (he didn’t in the end accomplish that). The Liberal Celebration now faces the uphill battle of selecting a brand new chief and making ready for an election as soon as Parliament returns.

Following the Prime Minister’s announcement, a judicial evaluate software was filed in Federal Courtroom difficult the prorogation. On this weblog put up, I analyse what we all know in regards to the authorized problem to this point. First, I emphasize that figuring out the constitutional validity of a prorogation is a extremely fact-driven train. Which means that the explanations given for a prorogation are essential. Second, I argue that the authorized problem to Trudeau’s prorogation is unlikely to succeed, and mustn’t succeed. There’s nothing so distinctive about this case as to warrant judicial intervention. On the similar time, I don’t foreclose the chance that in distinctive circumstances, a court docket may sooner or later conclude {that a} prorogation is illegal. And third, I argue that there are a number of bases for distinguishing the current case from the UK Supreme Courtroom’s determination in Miller II. Miller II, as many readers will know, is a exceptional 2019 determination wherein the UK Supreme Courtroom annulled a prorogation on the grounds that Boris Johnson’s recommendation to the Queen to prorogue violated the constitutional rules of parliamentary sovereignty and parliamentary accountability with out affordable justification.

Earlier than shifting on, it’s maybe value highlighting that my focus is on the deserves of the authorized problem. Nothing I say right here ought to stop a vigorous political dialog about whether or not Trudeau’s prorogation is legit. In truth, such discussions are wanted for the political dimensions of our constitutional order to stay strong. I agree with Philippe Lagassé {that a} Prime Minister ought to act honourably in deciding whether or not to request a prorogation. Which means that they need to not accomplish that to keep away from a vote of no confidence. Whether or not a court docket would conclude that that is what in truth occurred right here, nevertheless, is one other matter.

The Authorized Problem

The authorized problem filed by David Joseph MacKinnon and Aris Lavranos hews intently to Miller II by arguing that Trudeau’s prorogation violates the rules of parliamentary sovereignty and parliamentary accountability with out affordable justification. It additionally reprises a few of the arguments made throughout Canada’s 2008 prorogation debate, when then-Prime Minister Stephen Harper was accused of requesting a prorogation to keep away from the looming defeat of his authorities. The events argue, inter alia, that

the Choice has the impact of irritating or stopping, with out affordable justification, the power of Parliament to hold out its constitutional capabilities as a legislature and because the physique accountable for the supervision of the chief, significantly insofar because it pertains to Parliament’s capacity to deal rapidly and decisively with particularly urgent points, such because the state of affairs brought on by President-Elect Trump’s said intention to impose a 25% tariff on all items getting into the USA from Canada,

and that

the cumulative and meant impact of the Choice is a part of a stratagem designed particularly to interrupt the enterprise of Parliament and stymie the publicly said intent of a majority of the Home of Commons to deliver a movement for non-confidence within the authorities. The Choice was not made in furtherance of Parliamentary enterprise or the enterprise of presidency, however in service of the pursuits of the [Liberal Party of Canada].

For my part, these arguments are unlikely to succeed. For one, Canadian courts have principally rejected a lot of these circumstances on the grounds that they take care of politically-enforceable constitutional conventions fairly than legislation. That alone is sufficient to doubt whether or not the Federal Courtroom will break new floor on this case. As well as, nevertheless, critical questions will also be raised about each the factual and authorized bases of those claims.

The Info of the Prorogation

When Prime Minister Trudeau introduced that the Governor Normal had prorogued Parliament, he provided the next justification for his request:

The Parliamentary Press Gallery and anybody who’s been watching politics intently over the previous months will know that Parliament has been solely seized by obstruction and filibustering and a complete lack of productiveness over the previous few months. We’re proper now the longest serving minority authorities in historical past, and it’s time for a reset. It’s time for the temperature to return down, for the folks to have a recent begin in Parliament, to have the ability to navigate by means of these complicated occasions, each domestically and internationally. And the reset that now we have… is definitely two components. One is the prorogation, however the different half is recognizing that eradicating me from the equation because the chief who will combat the following election for the Liberal Celebration also needs to lower the extent of polarization that we’re seeing proper now in the home and in Canadian politics, and permit folks to really concentrate on serving Canadians on this home and work the way in which Canadians deserve.

When pressed on whether or not the target of the prorogation was to keep away from a vote of no confidence, Trudeau referenced the 2008 precedent described above:

In 2008, the Governor Normal appropriately concluded that as a result of the final occasions [sic] within the earlier weeks that the boldness of the Home had been examined, it had handed that confidence check. Stephen Harper continued to have the boldness of the Home, and it really would bear out, as a result of as quickly as they got here again from the prorogation, Stephen Harper gained a confidence vote as soon as once more. So a political doc or political speeches doesn’t [sic] carry the type of weight that successful a confidence vote means. However this prorogation will take us solely into March, and there shall be confidence votes in March, within the passing of provide that can enable Parliament to weigh in on confidence in a method that’s solely consistent with all of the rules of democracy and the workings of our robust establishments.

Whether or not prorogation was strategically the best choice for the Liberal Celebration and the nation is in fact a matter of debate, however from the standpoint of constitutional conference, this seems to be a legit purpose for requesting a prorogation. It’s tough to think about a court docket second-guessing this justification as a part of a authorized problem. Furthermore, it was merely not inevitable {that a} vote of no confidence would have succeeded had Parliament continued sitting. To counsel in any other case can be to oversimplify the fluidity of the state of affairs the Prime Minister was going through in December and early January.

The Authorized Concerns

Over the previous few weeks, authorized students and political scientists have mused in regards to the deserves of a potential authorized problem to a Trudeau prorogation. Leonid Sirota argued that the Canadian Constitution of Rights and Freedoms establishes a “vibrant line rule” that Parliament should sit at the very least every year, and that that is the extent of the judicially enforceable limits on prorogation. Previous to the Prime Minister’s announcement, Paul Daly wrote {that a} Canadian court docket may rely on Miller II to invalidate a prorogation that interfered with parliamentary accountability. And Emmett Macfarlane argued that any authorized problem can be unsuccessful, since a prorogation to “reset” the federal government aligns with precedent. He added that “if the Canadian courts have been to ever contain themselves in a prorogation determination alongside related grounds [as Miller II] they’d be dramatically overstepping their function.”

I share the view that there are good constitutional causes for the courts to not intervene right here. In Canada, the rules of parliamentary sovereignty and parliamentary accountability are greatest understood as unwritten constitutional rules. Over the previous 4 many years, the Supreme Courtroom has developed an more and more deep physique of jurisprudence on these rules. Philippe Lagassé and I’ve argued that they’ve each authorized and political dimensions, that means that they are often enforced by political actors and by the courts. We are saying that the Supreme Courtroom’s current determination within the Metropolis of Toronto case lends help to our view. Authorized underenforcement of those rules is comparatively widespread, and will be fascinating the place enforcement raises separation of powers issues.

For my part, this can be a case the place the rules of parliamentary sovereignty and parliamentary accountability are greatest enforced politically. To conclude in any other case can be to implicate the courts in issues lengthy regarded – rightly – as excessive politics. This isn’t to say that courts ought to by no means intervene, however solely that courts shouldn’t be adjudicating the lawfulness of routine prorogations (for the same argument, see right here).

The Persuasiveness of Miller II

This brings us to Miller II, and two key components that distinguish it from the present case. The primary issue is that, in contrast to in Miller II, Prime Minister Trudeau did supply a justification for the prorogation.1) The second issue is that Miller II involved a really singular prorogation, one that may have seen the UK Parliament prorogued for a number of weeks within the lead as much as Brexit. The thought of Parliament being sidelined whereas this monumental constitutional change occurred was, for the Courtroom, merely untenable:

Such an interruption within the technique of accountable authorities may not matter in some circumstances. However the circumstances right here have been, as already defined, fairly distinctive. A elementary change was because of happen within the Structure of the UK on thirty first October 2019. Whether or not or not this can be a good factor isn’t for this or every other court docket to guage. The folks have determined that. However that Parliament, and particularly the Home of Commons because the democratically elected representatives of the folks, has a proper to have a voice in how that change comes about is indeniable.

It’s true that the court docket relied on the rules of parliamentary sovereignty and parliamentary accountability to floor its determination, and that these rules are additionally arguably engaged by the Trudeau prorogation. However the Courtroom in Miller II was not involved with routine accountability. It was involved with extraordinary occasions that merited the extraordinary step of the courts getting concerned to protect constitutional democracy. In Miller II, the steadiness tipped in favour of authorized enforcement. This example may be very totally different than the details we’re offered with right here.

For all these causes, I don’t suppose the current case ought to appeal to judicial intervention. Canada’s trendy system of constitutional authorities is characterised by a fragile steadiness of authorized and political. Parliamentary sovereignty and parliamentary accountability are certainly constitutional rules that, in my opinion, might legitimately be enforced by courts in distinctive circumstances. However to the extent that they’re engaged by the Trudeau prorogation, they need to be enforced politically, with the attendant political penalties.