He’s not just battling prorogation. He’s battling Justin Trudeau

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Liberals are magicians. Through sleights of hand and by proroguing Parliament, the Liberals could yet win another election with a new leader.

Not so fast, shout defenders of democracy. David MacKinnon and Aris Lavranos — both living in Nova Scotia, both lawyers — have asked the Federal Court to weigh in on whether Trudeau’s proroguing of Parliament was legal. Calgary-based Justice Centre for Constitutional Freedoms, a non-profit founded by John Carpay, offered up a legal team from Charter Advocates Canada. And on Feb. 13 and 14, Chief Justice Paul Crampton heard arguments for and against prorogation, and committed to rendering a swift decision before the issue becomes moot.

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Asking a court to reverse prorogation at a time like this; why bother?

There’s a government in place, with all its executive branch tools, pragmatists argue. Plus, proroguing Parliament — hitting the reset button — is a tactic that’s been deployed by a host of prime ministers, including Sir John A. Macdonald, Brian Mulroney, Jean Chretien, Stephen Harper and now Justin Trudeau. Never has a governor general said no to a prime minister’s request. In 2020, then Gov. Gen. Julie Payette agreed to prorogue Parliament on flimsier grounds in the aftermath of the WE Charity scandal and a Liberal government cabinet shuffle.

The applicants’ glimmer of hope lies in the 2019 decision of the Supreme Court of the U.K., which ruled then-prime minister Boris Johnson had prorogued unlawfully to avoid parliamentary scrutiny of the government’s Brexit negotiations. If the Federal Court in Canada decides in a similar fashion, not only would Parliament resume immediately but future prime ministers might not be so cavalier in reaching for the prorogation button.

In a recent Zoom conversation with MacKinnon, I asked him about the application and what propelled him to act. He’s just driven from Montreal to his home in Amherst, N.S., through a ferocious snowstorm. Understandably, he’s weary and from time to time in our conversation, he reaches up to rub the stubble on his jaw.

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This 70-year-old man has seen the dark side of humanity; he translated for criminal tribunals related to Rwanda, the Hague and Yugoslavia. He’s not angry, but he is offended by a junior government lawyer’s offhand suggestion: “Citizens have a solution” — complain to the federal ombudsman via your acting MP.

MacKinnon strikes me as a caring man, with compassion for “regular folks”— he speaks fondly of his work, decades ago, as a roughneck in Alberta’s oil patch, as a longshoreman, even a morgue attendant. In a blog post shared online a few weeks ago, he describes life in his hometown of Amherst, “a town that has fallen on hard times, as have many small communities in outlying areas during the reign of Justin Trudeau.”

The place evokes JD Vance’s “Hillbilly Elegy,” he writes. “The men sport chest beards, the houses are often as not in disrepair and you can lease space for a dollar a foot in the ‘downtown,’ also visible from our home. It’s not unusual to see a flaming-red, oversized SUV, with the “FU Trudeau” flag proudly flying from the box.”

A lawyer, registered in two law societies in Canada, MacKinnon’s reticent to talk about the merits of the application. “I fully trust the Chief Justice to the extent that if he rules against us, he’s right, not me,” he assures me. “This is a question of law and if we’re interested in the rule of law, let the courts do their job.”

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With some prodding, MacKinnon frames the legal questions being debated before the Federal Court in terms that can be understood by non-lawyers. The prime minister gives the advice to prorogue, and the governor general acquiesces, MacKinnon explains. “If the prime minister gives his advice, he has one duty but he wears two hats,” MacKinnon continues. “And one of them is as head of the Liberal party. So he must act as the head of the government when he gives that advice. If not, one line of reasoning might say that is a simulacrum of prorogation … a deliberate attempt to subvert the will of Parliament.”

A good place to plan a battle to bring down a corrupt prime minister and a corrupt Liberal party

MacKinnon is chagrined to learn I’ve read his blog post. In fact, it’s the reason I’ve reached out to him. His words speak to a frustration I hear from others, workers and builders who gave the Liberals their proxy, thinking the party would have their back. Jody Wilson-Raybould took the bait too, as have many other smart folks.

“There is no shortage of reasons to hold Justin Trudeau in contempt,” MacKinnon writes, “but two of them come to mind as I write these words. Coincidentally, both concern Indigenous Canadians.

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“The first is my recollection of Trudeau’s comments in Rolling Stone magazine in the wake of the Patrick Brazeau charity boxing match staged between the senator and the prime minister… for Trudeau to say the following words bespoke a man lacking a fundamental quality as a human being, never mind a future prime minister. ‘I wanted someone who would be a good foil, and we stumbled upon the scrappy tough-guy senator from an indigenous community. I saw it as the right kind of narrative, the right story to tell.’”

The second incident, MacKinnon writes, occurred behind closed doors.

In the Jody Wilson-Raybould book “Indian in the Cabinet: Speaking Truth to Power,” the former justice minister described how she experienced “a consistent and sustained effort” by many people within the government to seek to politically interfere in the exercise of prosecutorial discretion in my role as the attorney general of Canada in an inappropriate effort to secure a Deferred Prosecution Agreement (DPA) with SNC-Lavalin.

And, then she related that during a late 2018 meeting, Trudeau asked her “to lie to protect a Crown government acting badly; a political party; a leader who was not taking responsibility.”

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MacKinnon concludes: “Those two anecdotes exemplify for me two of the overarching qualities of this man that render him unfit for purpose: a lack of empathy, and a contempt for the rule of law, ironically the same two labels affixed to the reputation of his political enemy, Donald Trump.”

It’s maybe 90 minutes’ drive from Amherst, N.S., to Charlottetown, P.E.I., the place where Confederation was set in motion by our founding fathers in 1864. This small town was the birthplace of Canada’s sixth prime minister, as well as the father of Dwayne “The Rock” Johnson. It’s a good place to contemplate the past and the future of our country, MacKinnon writes. “A good place to plan a battle to bring down a corrupt prime minister and a corrupt Liberal party, steeped in hubris and disdain for the ordinary suffering of citizens getting by as best they can.”

As fellow lawyers, we share a faith in the power and authority of the courts to protect democracy. But we know full well, to quote MacKinnon, not everyone is pleased when “the court becomes our last refuge against a scoundrel.”

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