Prorogation, Constitutional Principles and Judicial Review

Today, Canada’s Parliament was prorogued by the Governor General until September 23 on the advice of the Prime Minister. In this post I will consider whether there might be plausible grounds for challenging this prorogation in the courts. My goal is not to incite any such challenge but rather to demonstrate the potentially far-reaching implications of the UK Supreme Court decision in R (Miller) v Prime Minister [2019] UKSC 41 (considered here).

In Miller 2, the Boris Johnson prorogation took place against the backdrop of a looming Brexit deadline: the legal default was that Britain would crash out of the European Union without a deal. The Supreme Court held in these extraordinary circumstances that the prorogation interfered with the principle of parliamentary sovereignty in two ways: it disabled Parliament from legislating to prevent a no deal Brexit; and it shielded the government from the oversight of parliamentary committees. These twin incursions on parliamentary sovereignty imposed a justificatory burden on Prime Minister Johnson, which he was incapable of discharging. A key point here was that prorogation — as opposed to an adjournment — shuts Parliament down completely, on the initiative of the government — again, as opposed to an adjournment.

While by no means a perfect analogy, an intrepid/opportunistic (delete as appropriate) challenger would observe of the Trudeau prorogation that it shuts down Parliament in the extraordinary circumstances of the COVID-19 pandemic. The effect, first, is to prevent Parliament from legislating to deal with the economic and other fallout from the pandemic. Second, parliamentary committees will not be able to ask questions about the government’s economic response to the pandemic in general and in light of the Finance Minister’s recent resignation (in the wake of a funding controversy linked to the pandemic). If Miller 2 were followed in Canada (more on this below), this would be enough to impose a justificatory burden on the Prime Minister.

As with the ill-fated Johnson prorogation, Prime Minister Trudeau plans to use the breathing space of prorogation to prepare a new Speech from the Throne, to set out a new legislative agenda. And, as with the Johnson prorogation, the time period here overlaps a period in which Parliament is expected to be adjourned anyway. This was not enough for the UK Supreme Court in Miller 2, however, as the Prime Minister provided no justification for a five-week prorogation, especially in the face of evidence that preparing a Throne Speech takes days rather than weeks.

A would-be challenger could, on this basis, seek to persuade a court — the Federal Court being the most likely forum — to invalidate the Trudeau prorogation. Any such challenger would have to scale some hurdles but none seems (at least to me) to be impossible to surmount.

First, the Federal Court can only review “decisions” of Federal officials. The Prime Minister is certainly an official but the decision here was taken by the Governor General. The better view is that the Governor General’s decisions are unreviewable in Federal Court. However, as in Miller 2, what is being attacked is not the decision of the Governor General but the advice given by the Prime Minister. In Conacher v. Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411, Shore J held that advice relating to the exercise of prerogatives is reviewable ([UPDATE: see par. 26] affirmed 2010 FCA 131, [2011] 4 FCR 22 though not on this point, but see similarly Black v. Canada (Prime Minister)(2001), 2001 CanLII 8537 (ON CA), 54 O.R. (3d) 215 (C.A.)).

Second, the Canadian approach to review of the prerogative has been based on a distinction between rights and privileges: Black 2001 and Black v. Advisory Council for the Order of Canada, 2012 FC 1234 (affirmed 2013 FCA 267). Only where a right is in issue can exercises of the prerogative be reviewed. Obviously there is no “right” at stake in the prorogation context. However, in Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 , Stratas JA took a wider view of reviewability of the prerogative without mentioning rights and privileges (see especially at para. 67). If Hupacasath were followed in the prorogation context, the case for reviewability would be much stronger.

Moreover, the analysis in Miller 2 (were it adopted) neatly sidesteps the reviewability issue. The “reasonable justification” standard was said by the UK Supreme Court to be an inherent part of the prorogation prerogative, as a matter of law. As the courts have long had the authority to determine the existence of any prerogative power, it was therefore within the scope of judicial review to assess whether the prorogation was justified. 

Third, Miller 2 is not binding on a Canadian court. I have identified problems with the decision, some of which resonate in the Canadian context. In particular, the practical effect of the decision is to impose a free-standing obligation on a Prime Minister to justify any exercise of the prorogation prerogative. Yet, in Canadian law, the burden in a judicial review claim is always on the applicant not the respondent. Importing Miller 2 would turn this principle on its head.

If Miller 2 were followed however — and it certainly has attracted attention in Canada already: Canadian Federation of Students v. Ontario, 2019 ONSC 6658 — then the Prime Minister would be in a difficult position. There is no Canadian equivalent of the “duty of candour” in English JR proceedings requiring a respondent to “put their cards face up on the table”. I doubt that Prime Minister Trudeau would disclose any of the internal advice or discussions around prorogation. The effect of such reticence would be to focus attention on the practical consequences of the prorogation rather than the underlying reasoning (see Vavilov v. Canada (Immigration and Citizenship), 2019 SCC 65, at paras. 136-138). The Prime Minister may successfully persuade a court to defer to his exercise of the prerogative, which is, after all, a political question par excellence. Nonetheless, given the effects of this prorogation, as noted above, a court might well conclude that the decision of the Prime Minister to advise prorogation falls outside the range of reasonable decisions in these circumstances.

Lastly, a legal challenge might be mooted by the passage of time. I suspect though that the Federal Court would hear any challenge in short order. It has certainly demonstrated a capacity to act quickly in recent years.

Miller 2 is a powerful and important decision. Some of its teachings about constitutional fundamentals are likely to be very useful to Canadian courts. But its elision of the distinction between the existence and exercise of prerogative powers is liable to have baleful consequences. The Trudeau prorogation is an example. As with his predecessor, Prime Minister Harper, his use of the prorogation prerogative is properly the subject of robust political debate. But the propriety of prorogation can be fully and definitively contested in this case in the political realm. In my view, there is no need here for judicial application of a vague standard of “reasonable justification”. Nonetheless, the possibility of a plausible legal challenge should not be dismissed out of hand.

UPDATE: I’ve been asked by some correspondents whether I think Miller 2 has no resonance at all in Canada. I would not go that far. Miller 2 deals with some constitutional fundamentals which apply as much in Canada as they do in the United Kingdom. And in some areas, the exercise/existence distinction developed in Miller 2 certainly resonates: I have in mind, in particular, the area of parliamentary privilege, where the exercise/existence distinction is well developed and could be illuminated by reference to Miller 2-style analysis of constitutional first principles.

This content has been updated on August 20, 2020 at 03:09.