With less than three weeks before Parliament returns from its prorogation, a federal judge announced he had dismissed a legal challenge of Prime Minister Justin Trudeau’s move to prorogue Parliament. Trudeau announced on Jan. 6 that he would be stepping down as prime minister once the Liberal Party had chosen a new leader, and that he had asked Governor General Mary Simon to prorogue Parliament until March 24.
Two Nova Scotians, David MacKinnon and Aris Lavranos, asked the federal court to declare the prorogation illegal because there was no “reasonable justification” for doing so. They also asked for a declaration that this session of Parliament had not been prorogued.
Federal Court Chief Justice Paul Crampton said on March 6 that the applicants “failed to demonstrate” that Trudeau’s prorogation had exceeded any limits established by the Constitution or any other legal principles.
Crampton said that in the “absence of any transgression on any Charter rights,” the prime minister did not need to provide a justification for why he prorogued Parliament. He also said Trudeau’s choice to prorogue instead of call an election was a “highly political choice” that could not be reviewed under any objective or legal standards.
The same could be said for the length of time Parliament was prorogued, according to the judge, who said it would be “beyond the Court’s institutional capacity to assess the reasonableness of a justification for a particular length of a prorogation.”
The applicants had also argued that while Trudeau said Parliament had been “paralyzed” for several months and therefore needed a “reset,” the real reason for the lack of progress was due to Conservative filibustering over the government refusing to provide documents to the House speaker related to the Sustainable Development Technology Canada’s (SDTC) misspending of taxpayers’ money.
Crampton said the issue of whether Parliament was truly “paralyzed” was also a “non-justiciable issue.”
“While the overall circumstances are troubling, it is not possible to disentangle the various considerations identified by the prime minister, for the purpose of determining whether, on balance, he exceeded the scope of his constitutional and legal authority in making the decision,” Crampton wrote.
The applicants had argued in court that Trudeau’s decision to prorogue was a political one, as he was expected to lose a non-confidence vote when Parliament returned in early 2025. But Crampton said the complainants failed to establish “when, if at all, a non-confidence vote likely would have occurred” without prorogation, and they had ultimately conceded that the Liberals held the confidence of the House at the time of prorogation. The applicants’ lawyers had also argued that the decision to prorogue engaged Section 3 of the Charter of Rights and Freedoms, which is that citizens have a right to “effective representation” in Parliament. However, Crampton said the Supreme Court of Canada had previously established that this referred to the process of selecting elected representatives, rather than “what happens afterward.” During the court proceedings, the applicants cited a unanimous 2019 ruling by the United Kingdom’s Supreme Court, which stated then-Prime Minister Boris Johnson’s decision to prorogue Parliament for five weeks was unlawful. The applicants noted that Canada and the U.K. share many of the same legal principles under common law.
Crampton said in that instance, Parliament was prorogued just weeks before a major constitutional change was due to take place in connection with the country’s withdrawal from the European Union. It was also made after Parliament had intended to be involved in the withdrawal by passing related legislation.
The judge noted that this was the only case in the history of the Commonwealth where a court interfered with the Crown choosing to prorogue, and that the circumstances causing this scenario had never arisen before and are unlikely to ever arise again. Since neither the effect of the decision nor the circumstances related to it were “similarly exceptional,” Crampton dismissed the argument.
The applicants, who filed their application on Jan. 8, were granted an expedited hearing by Crampton on Jan. 18. The judge said at the time that the case would be moot if the hearing occurred after prorogation ended.
