Many Canadians are understandably rejoicing over a very unpopular prime minister having announced he is leaving office in March 2025. The prorogation of Parliament is popular in many quarters because it means that anti-freedom legislation like the Online Harms Act (C-63) will die on the Order Paper.However, Parliament cannot be prorogued for the purpose of advancing partisan political interests, or to prevent Members of Parliament from holding the government to account.At his January 6, 2025 news conference, the prime minister's stated justification for the prorogation was to “reset” Parliament and to provide the Liberal Party of Canada time to select a new party leader. No explanation was provided as to why Parliament could not recess, or why MPs could not exercise their right to vote on a motion of confidence in the government.In contrast to prorogation, a recess means that the House does not sit but Parliamentary business can otherwise continue as usual. Committees may meet, written Parliamentary questions can be asked, and ministers must answer those questions.In response, two Canadians from Nova Scotia, David MacKinnon and Aris Lavranos, have filed a Federal Court application seeking a declaration that the Prime Minister’s prorogation of Parliament is illegal. They argue that the January 6 prorogation of Parliament was done entirely for the political benefit of the Liberal Party, at the expense of Canada and the Canadian people, and to avoid the democratic scrutiny of the House of Commons.This Federal Court application references a decision of the Supreme Court of the United Kingdom, which ruled in 2019 in R (Miller) v. The Prime Minister that Prime Minister Boris Johnson had prorogued Parliament illegally, as a means of avoiding Parliamentary scrutiny over the government’s “Brexit” negotiations concerning the departure of the United Kingdom from the European Union. The court ruled that the prorogation of Parliament could not be used simply as a tool of the Government to promote its own policies.Boris Johnson had taken over from Theresa May as Conservative Party leader and as prime minister of a minority government in July 2019. This was three years after the “leave” side had narrowly defeated the “remain” side in the 2016 Brexit referendum. Johnson was frustrated with the slow pace of Brexit negotiations. He believed that the European Union could delay the United Kingdom’s departure indefinitely, as long as the two sides kept trying to reach a deal about the details of what Brexit would look like and consist of. Johnson was willing to have the U.K. leave without any deal having been reached, insisting that the prospect of a “no deal” exit was needed to pressure the European Union to make a deal. However, Boris Johnson was leading a minority government, and most MPs opposed a “no deal” exit from the European Union.When Johnson prorogued Parliament for five weeks (much longer than the usual one to three weeks), this prevented MPs from intervening to delay the United Kingdom’s departure from the European Union, set to occur on October 31.The U.K Supreme Court ruled that the five-week prorogation was motivated by the improper purpose of stymying Parliamentary scrutiny of the executive, and of avoiding further debate in the run-up to the scheduled October 31 exit day from the European Union. Prorogation meant that Parliament could not meet, debate, pass legislation, question Ministers orally or in writing, or scrutinize the conduct of the Prime Minister.The U.K. Supreme Court further noted that Parliamentary accountability is a constitutional principle that must be respected: “Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power… the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model.”The Court concluded that proroguing Parliament was illegal because it had “the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.”What the U.K. Supreme Court said in its judgment applies to Canada as well: “Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that.”Like Boris Johnson in 2019, Prime Minister Trudeau did not provide a valid reason for closing down Parliament, nor did he explain why Parliament could not have gone into recess instead. As in the United Kingdom in 2019, this prorogation of Canada’s Parliament has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. This is particularly important in the context of dealing quickly and effectively with President-Elect Trump announcing his intention to impose a 25% tariff on all goods entering the United States from Canada.Mr. Trudeau’s prorogation decision stymies the publicly stated intent of a majority of MPs to bring a motion for non-confidence in the government and trigger an election. Prorogation serves the interests of the Liberal Party, but it does not further Parliamentary business or the business of government. It violates the constitutional principles of Parliamentary sovereignty and Parliamentary accountability. John Carpay, B.A., LL.B., is President of the Justice Centre for Constitutional Freedoms, which has provided lawyers to David MacKinnon and Aris Lavranos for their constitutional challenge.
