The Federal Court is hearing a challenge to Prime Minister Justin Trudeau’s prorogation of Parliament this week, put forward by two Nova Scotia men.
The applicants are arguing for MPs to be immediately ordered back to work, and Parliament will continue as though it hadn't been prorogued at all.
Federal Court Chief Justice Paul Crampton on January 18 expedited the case and arranged for the Federal Court to hear the case February 13 and 14. A prorogation has never been challenged in court before, making it a landmark case for Canada.
Footage of the prime minister self-righteously criticizing former Prime Minister Stephen Harper’s decision to prorogue has been circulating around social media.
The Justice Centre for Constitutional Freedoms (JCCF) is representing David MacKinnon and Aris Lavranos in their legal challenge against the 77-day prorogation, which Trudeau himself admitted during his January 6 intent-to-resign speech was to give Parliament a “reset” and give the LIberal party time to name a leader — who will become prime minister as of March 9.
Trudeau during that speech announced he would prorogue Parliament until March 24, after months of a parliamentary gridlock due to the Liberals refusing to disclose critical documents pertaining to a green slush fund through Sustainable Development Technology Canada (STDC).
Trudeau’s prorogation, which he needed the Governor General’s approval, was readily granted.
“We are not concerned with the prime minister’s motive for doing what he did,” argues Trudeau’s lawyers in court Friday.
The challenge argues Trudeau’s decision went against the principle of “good governance” as per section 91 of the Constitution Act. Lawyers argue he served his own self-interest in attempting to dodge a non-confidence vote that would have triggered a snap election, and the decision to invoke the nearly three-month prorogation fell outside his executive powers.
Lawyers challenging the case further argue Trudeau’s two reasons for prorogation he gave during his speech did not give sufficient grounds for doing so, and note in their Memorandum of Facts and Laws Trudeau never did mention why the lengthy prorogation would be preferable to an election.
JCCF lawyer James Manson argued on Thursday the court must establish parameters for reasonable justification of prorogation, which would limit executive powers and government overreach.
“What would be offside? Is there really to be no limit?” Manson asked.
“Do we really want a prime minister to have that much power to do whatever she or he wants, whenever, for however long they want?”
While Canadian courts have never heard such a case before, UK courts have. In 2019, a challenge to prorogation won in court after then-Prime Minister Boris Johnson attempted to do so ahead of Brexit. This case was continually referenced throughout the two-day hearing in Ottawa this week.
“The Liberal party can absolutely have and proceed with a leadership race even if Parliament were in session,” said Manson on Thursday.
He called the length prorogation “remarkable and unprecedented,” and said even without the example of the UK case, the prorogation of Canadian Parliament was no appropriate due to the “existential threat” to Canadian sovereignty and economic security in the wake of President Donald Trump’s tariff threats and repeated suggestions he’d like to annex Canada.
JCCF lawyers argued Trudeau has promised new funding on border security after Trump turned up the heat on tariffs, but has no way to follow through with it without parliamentary permission.
“In particular, I am concerned that Parliament is unable to react to or otherwise deal with the looming, unprecedented economic and political threat that Canada faces from the US, as announced and repeatedly stated by President Donald Trump,” wrote MacKinnon in an affidavit submitted to the court.
Trudeau’s lawyers argue executive leadership have the power to prorogue Parliament whenever they see fit — even when the judge asked if would be suitable to use the propagation mechanism to avoid a non-confidence motion.
“There are no limits on prorogation,” replied federal counsel.
Counsel to the Attorney General on Friday further argued that the Trudeau Liberal “government has been able to function throughout prorogation.”
No one in the courtroom disagreed with that point — but as JCCF pointed out in a social media post, “the problem [as stated in the Memorandum of Fact and Law] is that government is functioning without parliamentary oversight.”
The judge during court Friday asked Trudeau’s lawyers how, “exactly,” Parliament is able to hold the government to account while the House is prorogued while Canada faces “a certain unprecedented threat” from the US.
Counsel for the attorney general in response claimed there is “no evidence that there is something pressing that Parliament has to deal with.”
“As a matter of law, it was Gov. General Mary Simon who prorogued Parliament, not the prime minister,” argued counsel for the AG — to which Crampton pointed out a governor general has never before in Canadian history denied a prime minister’s advice to prorogue Parliament.
Trudeau’s lawyers, who are arguing for the case to be dismissed, have been granted until next Wednesday to make their final submissions. The government on Thursday at the beginning of the first day of hearings asked for an extension to reply to arguments in writing.
Lawyers for the federal government are also going after legal costs to be paid by the applicants. The judge told them to come up with a number by next week.
