KEENEY: Federal Court right to expedite hearing for prorogation challenge

Patrick Keeney is an academic and freelance journalistJustin Trudeau’s decision to prorogue Parliament until March 24 to allow the Liberal Party to choose a new leader, highlights his typical disregard for the orderly conduct of parliamentary business. In the cavalier, self-serving fashion we’ve come to expect from the Liberal Party of Canada, our country’s parliamentary affairs have been sidelined to conveniently accommodate their political manoeuvrings.Trudeau’s arrogant dismissal of his party’s repeated calls for him to step down as Prime Minister in a timely and orderly fashion evokes the old adage, “Your lack of planning doesn’t constitute an emergency for me.” The Liberal’s lack of foresight and preparation has placed the burden squarely on the shoulders of Canadians, forcing them to bear the consequences of disrupted governance, diminished security, and economic instability.This decision also brings into focus the enduring importance of Canada’s constitutional framework. It highlights the delicate balance between the executive and legislative branches and the vital role of constitutional principles in safeguarding the integrity of Canada’s parliamentary democracy.Prorogation is a constitutional tool designed to pause parliamentary activity temporarily. It is rooted in the royal prerogative in Canada. In principle, it serves as a mechanism for ensuring parliamentary efficiency and recalibration. However, when wielded improperly or unreasonably, it undermines Parliament's sovereignty and the foundational principle of responsible government.By suspending parliamentary operations during a time of political uncertainty — including Donald Trump’s provocations and his dismissive portrayal of Canada as the '51st state' — Trudeau has reignited debates about the limits of executive authority and the balance of power in Canada’s democracy.The prorogation appears to be less about governance and more about shielding the government from scrutiny over unresolved scandals while diverting attention from declining public support. For many, it encapsulates Trudeau’s leadership style — an artful evasion of accountability presented as procedural necessity.In a lawsuit funded by the Justice Centre for Constitutional Freedoms (JCCF), co-plaintiffs David MacKinnon and Aris Lavranos argue that the Prime Minister’s decision to prorogue “was not made in furtherance of Parliamentary business or the business of government, but in service of the interests of the LPC (Liberal Party of Canada.)” They seek a declaration that Justin Trudeau’s prorogation of Parliament was "incorrect, unreasonable, or both."Explains MacKinnon, “This case concerns a living tree — our Constitution — and how that living tree withers without proper care. If we are to fight tyranny — for it is tyranny that confronts us — we must find the answer within the memory of our historical past. We call this memory ‘the common law.’ It is enshrined in the preamble of our constitution."He elaborates, "The common law is the repository and guarantor of our justice and our wealth and happiness. Had we nurtured our living tree, and looked to our past, we would have read Lord Denning’s admonishment to the Attorney General of an earlier time: 'Be ye never so high, the law is above you.'”In a significant development, Chief Justice Paul S. Crampton of the Federal Court granted the motion for an expedited hearing. It will occur in Ottawa on February 13 and 14, 2025. Justice Crampton stated, “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 [of 25 percent tariffs] and take any action that they may consider appropriate for over two months following President-elect Trump’s assumption of office.” This rare move underscores the gravity of the situation and the need for swift judicial intervention to uphold the principles of responsible government. The controversy recalls similar abuses of power, such as Boris Johnson’s attempt to prorogue the UK Parliament during the Brexit crisis in 2019. The UK Supreme Court found Johnson’s actions unlawful. In doing so, the British courts held that prorogation must respect constitutional principles and not obstruct Parliament’s role as the cornerstone of representative democracy.Trudeau’s decision to prorogue parliament raises parallel concerns for Canadians. At the heart of the debate is Canada’s Constitution, which is founded on the British tradition of parliamentary democracy and the rule of law. The preamble to the Constitution Act, 1867 (formerly the British North America Act) states:Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom..."The phrase “similar in principle” underscores the intention for Canada's constitution to be modelled after the constitutional framework of the United Kingdom. It anchors Canada’s governance in Common Law, emphasizing parliamentary sovereignty and unwritten conventions dating back to the Magna Carta.These unwritten principles form an essential part of the law. They have the same force and effect as written statutes and are enforceable in the courts. The written constitution is the brick, and the unwritten conventions the mortar that holds together the entire edifice. Just like statute law, unwritten conventions don’t depend on good-faith commitments from political leaders.The prorogation controversy underlines the threat to parliamentary democracy when a government chooses to act on a constructed premise that constitutional conventions are somehow optional whims to be deployed or ignored in an arbitrary manner. When the Governor-General formally acquiesces to prorogation, this should not encourage us to conclude that prorogation is an unfettered royal prerogative. Unfortunately, adherence to the principle that prorogation should not be unreasonable appears to have been honoured in the breach.Trudeau’s tenure has been marred by a pattern of executive overreach, and ethical lapses. From the SNC-Lavalin affair to the WE Charity scandal, his government has often appeared more concerned with optics than with governance. The invocation of extraordinary powers, such as the Emergencies Act during the Freedom Convoy protests, further illustrates his administration’s troubling reliance on executive authority to manage crises. Fiats and decrees are the first signs of nascent dictatorship, and there is no reason to believe that Canada has been immunized against anti-democratic conduct, if the executive power is to go unchecked.The prorogation of Parliament adds to his legacy of democratic erosion. By sidelining elected representatives, Trudeau undermines the mechanisms of responsible government and weakens public trust in the institutions meant to hold leaders accountable. If this act succeeds, it establishes a dangerous precedent, enabling future leaders to wield prorogation as a political weapon.As Trudeau steps away from public life, Canadians face a moment of reckoning. His resignation offers an opportunity to reassess the health of Canada’s democracy and to demand reforms that strengthen the balance of power between the executive and legislative branches.We must reconnect with the conventions of our legal inheritance to prevent the misuse of prorogation as a tool to silence Parliament. This is not an exercise in romanticism or nostalgia for a bygone era; rather, it is a deliberate effort to revitalize our legal traditions. Though these conventions may have atrophied from disuse, they remain vital and carry the full force of law.Rebuilding public confidence necessitates a cultural shift toward prioritizing democratic norms over political convenience. Leaders must reaffirm their commitment to the principles enshrined in Canada’s Constitution, ensuring that Parliament remains the ultimate guardian of the public interest.Justin Trudeau’s departure marks the end of a controversial chapter in Canadian politics, one characterized by ethical lapses, opportunistic governance, and constitutional strain. His unreasonable use of prorogation underscores the dangers of unchecked executive authority. This moment reminds Canadians of the importance of vigilance in defending our democratic institutions, including the unwritten legal conventions that safeguard our liberty and justice.We await the court’s decision, knowing that our justices hold the power to restore public trust in our government. By reaffirming Canada’s commitment to the Westminster principles that define its constitutional identity, they can reinforce the balance of power essential to responsible governance and ensure that no leader can again prioritize party interests over the public good.Patrick Keeney is an academic and freelance journalist.

KEENEY: Federal Court right to expedite hearing for prorogation challenge

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