Double Aspect

In my last post, I wrote about the prospects of what was then a hypothetical judicial review application aiming to invalidate a hypothetical prorogation of Parliament. Since then, Parliament has been prorogued and judicial review proceedings have begun. The applicants have requested that they be expedited, so that an eventual decision may be issued before the new session of Parliament begins, which is now scheduled for March 24.

Yesterday, the Federal Court granted that request: Mackinon v Canada (Attorney-General), 2025 FC 105. The application will be heard on February 13 and 14, though since the Court’s Order provides that “The Applicants and Respondent … they may … each file a written reply [to interveners’ submissions, if any] of up to five pages by February 18, 2025”, one probably shouldn’t expect a decision until late that week or early next ― with about a month left to the prorogation. And that, of course, is not taking into account the prospect of an appeal ― and eventually a stay of a decision invalidating the prorogation pending an appeal.

While I’m no procedural expert, I don’t think that the decision to expedite the case is a big surprise. What may be noteworthy are some comments Chief Justice Crampton makes along the way. One may be tempted to read them as tipping his hand and suggesting he is minded to side with the applicants. A judge shouldn’t be doing that, though. It may well be that these comments are simply infelicitous, the inevitable imperfections of a rushed opinion. Then again, if a rushed opinion is what we will get come late February, this does not bode well.

Chief Justice Crampton explains that

[34] In considering whether to grant a request to abridge the standard timelines set forth in the Rules, this Court typically considers the following four factors:

1. Whether the proceeding is really urgent or the moving party simply prefers the matter be expedited;
2. Whether prejudice will ensue to the responding party if the matter is expedited;
3. Whether the matter will be moot if it is not expedited; and
4. Whether expediting the matter will prejudice other litigants by jumping the queue.

But the issue that gets the most discussion in his reasons is the existence of urgency, into which mootness is effectively folded. And it is here that Chief Justice Crampton makes his most interesting comments.

Unsurprisingly, the Chief Justice is concerned about the issue becoming moot if the proceedings extend past the opening of the new session of Parliament. This is why I think it was always to be expected that the application would be expedited. But he does not stop at saying that:

[54] … [I]n her open resignation letter, former Finance Minister Chrystia Freeland characterized the 25% Tariff as posing “a grave challenge” to Canada that needs to be taken “extremely seriously.”

[55] That challenge is pressing and urgent because President-elect Trump has threatened to impose the 25% Tariff swiftly upon assuming office on January 20, 2025.

[56] If the underlying Application is not scheduled to be heard on an expedited basis, there will be no opportunity for Canada’s elected representatives to debate this serious threat and take any action that they may consider appropriate for over two months following President-elect Trump’s assumption of office.

[57] The fact that the executive branch of government will continue to function during the period that Parliament is prorogued is beside the point. The fact remains that there would be no opportunity for Parliament to carry out its constitutional functions, including by availing itself of legislative tools at its disposal, for a significant period during which Canada will likely face a grave challenge.

This reads as if Chief Justice Crampton is accepting not only that it is urgent that the court determine the issue of the lawfulness of the prorogation, but that it is urgent that Parliament be reconvened. If so, this wouldn’t quite pre-judge the legal issue, but you’d rather be the applicant than the respondent trying to convince the Chief Justice that there is no legal way of doing that thing he believes is urgently necessary.

Now, this might not, in fact, be the reading Chief Justice Crampton intended. He does write that “[w]hether the Applicants will be successful in … remains to be determined”. [59] This may or may not be a fig leaf. Perhaps more importantly, the schedule he sets, though it is no doubt compressed, is rather more leisurely than that followed by the British courts in the cases that ultimately became R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373. If Chief Justice Crampton were so set on ruling for the applicants in light of the supposed urgency of the situation, I’m not sure he’d have set the schedule as he did.

That said, I think the comments quoted above are ill-advised, for three (perhaps overlapping) reasons. First, as I have already said, even if this isn’t the intent, they sound as if Chief Justice Crampton is accepting the applicants’ view of the case. This is in contrast to the usual care judges take, when deciding interim procedural issues, to emphasize that they are not pre-judging the merits.

Second, these comments at least suggest that Chief Justice Crampton is inclined to think of this case as a potential solution to a pressing political problem, rather than a strictly legal one. This is of a piece of the UK Supreme Court’s framing of Miller II as the product of “circumstances which have never arisen before and are unlikely ever to arise again”, “a ‘one off’”. [1] The danger is that one they think in this way, judges give themselves permission to dispense with worrying about the implications their decision will have in future cases. But, as we have seen with Miller II, saying that the case is a one off doesn’t make it so: I have described the dangerous, but quite logical, way in which the Miller II reasoning has been extended in a post over at the UK Constitutional Law Blog. Chief Justice Crampton should be thinking about how this case fits into the bigger legal picture, not the unusual political one.

And third, courts should generally refrain from political speculation, let alone from seeming to ratify statements made in a political context by partisan and self-interested political actors. I don’t mean to dunk on the specific political actors at issue here. As it happens, I am sure Ms Freeland is right, though what follows from that is not so obvious. But, right or not, she is a partisan politician, speaking in a partisan political context, and courts should not be crediting claims made in such circumstances. (For similar reasons, among others, they should also not be crediting statements about legislation made in Parliamentary debates, but I digress.)

In short, this is not a very promising start for this litigation. I hope that the next few weeks let the court approach the merits with a more long-term perspective. Then again, depending on just how crazy the politics ― and in particular the behaviour of the stark-raving lunatic about to become the President of the United States of America ― get in the meantime, things could get worse. We live in interesting times.