Trudeau was in his rights to prorogue Parliament, Federal Court rules

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OTTAWA — Prime Minister Justin Trudeau was entirely within his rights to ask the Governor General to prorogue Parliament in January, ruled the chief justice of the Federal Court in a first ever decision of its kind.

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In a highly anticipated decision published Thursday evening. Federal Court Chief Justice Paul Crampton ruled that Trudeau had not exceeded any Constitutional powers or conventions when he asked Governor General Mary Simon to prorogue Parliament for nearly three months in early January.

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“The Applicants failed to demonstrate that the Prime Minister exceeded any limits established by the written Constitution, including sections 3 and 5 of the Charter, or by the unwritten principles they identified,” he wrote.

“The Applicants also failed to demonstrate that the Prime Minister exceeded any other legal limits,” he added.

The unprecedented challenge to Trudeau’s request to prorogue in early January was launched by two Nova Scotians, David Joseph MacKinnon and Aris Lavranos. They were funded by the civil liberties group the Justice Centre for Constitutional Freedoms (JCCF).

In January, Trudeau justified his request for prorogation at the time by arguing that Parliament needed a “reset” due to a “total lack of productivity” after months of procedural paralysis. He also said it would give time to the Liberal Party of Canada (LPC) to choose a new leader.

“The reset that we have is actually two parts: one is the prorogation, but the other part is recognizing that removing me from the equation as the leader who will fight the next election for the Liberal party should also decrease the level of polarization that we’re seeing right now,” he said.

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The two challengers argued that the request prorogation was both “incorrect and unreasonable” because it prevented Parliament from dealing “quickly and decisively” with pressing issues and helped the Liberals avoid a confidence vote until the end of March.

They also argued that the request to prorogue was made solely “in service of the interests of the LPC.”

But Crampton ruled the applicants were never able to prove that, though he acknowledged that they might find the circumstances surrounding Trudeau’s decision “troubling.”

“Even if the considerations related to the Liberal Party that were identified by the Prime Minister were beyond the scope of his authority, he identified several other considerations for the decision (to request prorogation). It is not possible to disentangle the partisan reasons from those other considerations,” he wrote.

“On their face, those other reasons related either to the business of Parliament or to what appears to be the Prime Minister’s view of the public interest. It is not the Court’s role to question the merits or wisdom of those reasons.”

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Crampton also found that, absent any Charter breaches, the prime minister does not need to justify a request for prorogation. The court cannot review Trudeau’s choice of prorogation over dissolution of the House of Commons either, he ruled.

The case is a first since a landmark 2019 decision in which the U.K. Supreme Court put the brakes on then Prime Minister Boris Johnson’s bid to silence Parliamentary debate ahead of the Oct. 31 Brexit deadline.

The top court in the U.K. found at the time that Johnson used prorogation to block Parliament from intervening in Brexit just weeks before the withdrawal deadline. So, it used exceptional powers to reverse prorogation.

The opponents to Trudeau’s decision to request prorogation argued that the case showed the court could interfere with what is known as a Crown prerogative to prorogue Parliament.

Crampton disagreed. “Neither the effect of the decision that is currently before me nor the overall circumstances related to it are similarly exceptional,” he wrote.

The chief justice also swept aside an argument by the federal government that the court did not have the jurisdiction to hear the challenge to prorogation.

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The attorney general had namely argued that the legal decision to prorogue Parliament is made by the Governor General and the prime minister’s decision to recommend prorogation was not reviewable by the court.

In a statement, the JCCF said it was disappointed that the court found the prime minister’s advice to the Governor General was lawful.

“We are disappointed that the Prime Minister’s unprecedented use of the power to prorogue Parliament has been upheld. However, we are pleased to see that the Court has confirmed that the power to prorogue Parliament is not immune from review by the courts,” the JCCF’s Hatim Kheir said in the statement.

The Department of Justice did not immediately respond to a request for comment.

National Post

cnardi@postmedia.com

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