The National Post reports that, should the Prime Minister prorogue Parliament in the coming days, as rumour has it he may well, a court challenge is likely to result. The story quotes several academics, including Paul Daly and Philippe Lagassé. Over at Administrative Law Matters, Paul Daly expands on the reasons he thinks such a challenge may well have legs, quoting from a post he wrote a few years ago, when prorogation was being mooted as a response to the then-prevailing plague.
The argument for it would be based on the UK Supreme Court’s judgment in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 (Miller II), which held that the then-Prime Minister’s advice to prorogue the UK Parliament in the run-up to a possible no-deal Brexit was unlawful. Specifically, the UK Supreme Court held that the prerogative power to prorogue Parliament was subject to theretofore unknown limits preventing prorogations that disproportionately limited Parliament’s power to legislate whenever it pleased and its ability to hold the executive to account. Since the Prime Minister didn’t even try to justify his prorogation (in part, I presume, for the excellent reason that he couldn’t have known he had to, though in part also because the true justification would have been politically embarrassing), it was easy for the UK Supreme Court to assert that the prorogation was disproportionate and hence the Prime Minister lacked the power to advise the Queen to effect it.
Professor Daly addresses some difficulties with directly applying Miller II in Canada, and the ways in which at least some of them could be overcome. I would urge anyone interested to read his post, which is concise and which I could not usefully condense here ― I’d just have to copy the whole thing. But there is one issue that Professor Daly does not mention, which to my mind ought to be dispositive of the whole business ― which, to be sure, is not to say that it will be. I also think the Prime Minister would have an additional tactical card to play that Professor Daly is too quick to discount.
The dispositive issue is section 5 of the Canadian Charter of Rights and Freedoms. I have explained its relevance in my own article on Miller II:
[Section 5 of] [t]he Canadian Charter of Rights and Freedoms guarantees that “[t]here shall be a sitting of Parliament and of each legislature at least once every twelve months”. An attempt to prorogue
the Canadian Parliament or a provincial legislature for more
than a year would contradict this guarantee. A court ought to
be able to recognize this and [pursuant to s 24 of the Charter] provide any “such remedy as the court considers appropriate and just in the circumstances”.However, if the prorogation advised were for a period of less than a year … it would not be appropriate for the Canadian courts to follow Miller [II]. The Charter sets out a bright-line rule and it would not be the courts’ role to re-write the constitution that Canada actually has to improve it on a pattern suggested, decades after its enactment, in a different jurisdiction. The [Supreme Court of Canada] rejected attempts to expand the Charter’s limited, and arguably insufficient, protections in a number of past cases, and these rejections reflect an understanding of the judicial role that recognizes that the entrenched constitution should only be amended by the process that it provides for this purpose, and not as a result of adjudication. (151-152, footnotes omitted)
Of course, as I note in the article, the Supreme Court of Canada hasn’t always kept itself to this understanding of its role. But Toronto (City) v Ontario (Attorney General), 2021 SCC 34, [2021] 2 SCR 845, which came out after my article on Miller II, is yet another case in point. There too the Supreme Court refused to expand an arguably insufficient Charter right beyond its textual scope. Still, whether the Canadian courts would follow this line of cases when confronted with the desperate and, as Philippe Lagassé has rightly argued, dishonourable ploys of a Prime Minister on his way out is an open question. (If you want to be really cynical ― even more cynical than I ― you could even venture that blocking a prorogation now would be something of a Marbury v Madison move for Canadian courts: asserting a power previously unexercised while issuing a decision in line with the incoming government’s partisan interests.)
If the courts do not see the Charter as a bar to such shenanigans, the Prime Minister will have another card to play. Professor Daly notes that “[t]here is no Canadian equivalent of the “duty of candour” in English JR proceedings requiring a respondent to ‘put their cards face up on the table’” and, in consequence,
doubt[s] that Prime Minister Trudeau would disclose any of the internal advice or discussions around prorogation. The effect of such reticence would be to focus attention on the practical consequences of the prorogation rather than the underlying reasoning (see Vavilov v. Canada (Immigration and Citizenship), 2019 SCC 65, at paras. 136-138).
Professor Daly has more litigation experience than I, so perhaps I’m missing something obvious here, but if I were advising the Prime Minister (haha!) I would, on the contrary, urge him to be entirely forthcoming about his reasons for seeking a prorogation. These reasons might be quite unsavoury ― the Prime Minister, as Professor Lagassé notes, is not behaving the way good chaps, let alone gentlemen, are supposed to behave ― but legally that’s beside the point. The Prime Minister wouldn’t be acting irrationally in seeking a prorogation, and explaining himself to the courts would dare them to rule otherwise.
As I mention above, the UK Supreme Court had an easy time of it precisely because the Prime Minister didn’t provide any explanation, so it was easy enough to assert that of course the prorogation he sought was unjustified. Would a Canadian court really want to say a prorogation sought in order to maintain a government in office, let one whose purpose is to allow a new Prime Minister to be installed, should that end up being the case, is unreasonable in the Vavilov sense? Would it be keen to engage in actually weighing up the effects on government stability, say in the face of agressive American demands in trade negotiations, against government accountability and the ability of (a hopelessly divided and stalled) Parliament to legislate? Colour me sceptical. Granted, I’m not often a good prognosticator of what Canadian courts will end up doing. They might pull another #LOLNothingMatters. But I wouldn’t be so sure.
It may well be that, as Professor Lagassé has suggested, it all ultimately comes down to vibes. But, if nothing else, a court inclined to just vibe it all the way will have to write itself out of some thorny and unpleasant legal issues. That might not matter, because there aren’t enough good chaps in the Canadian judiciary, and hardly any on the Supreme Court, and a judge needs to be a good chap to be troubled enough by the prospect of doing a lousy job of accounting for his or her decision to decide against the vibes. But this stuff does matter every so often. Perhaps it will now.
Double Aspect 
Leave a reply to Aaron Clausen Cancel reply