Will the Trudeau Prorogation Be Challenged in Court?
Following from my previous post and based on Prime Minister’s Trudeau remarks this morning, I would think the prospects for any successful challenge are low.
The Prime Minister announced this morning that he would be resigning both as leader of the Liberal Party of Canada and from office as soon as a successor is selected by the party. He also announced that he had advised the Governor General to prorogue Parliament until March 24.
In analyzing his remarks, it is useful to bear in mind the two principles relied upon by the United Kingdom Supreme Court in quashing the Boris Johnson prorogation in 2019: prorogation interferes with Parliament’s ability (1) to legislate and (2) to hold the executive to account and thus requires justification.
The PM pointed out in relation to (1) that (a) Parliament is currently deadlocked and cannot legislate, and (b) this has been a very long parliamentary session already (1142 days according to Lyle Skinner).
In relation to (2) the PM emphasized (a) that Parliament is deadlocked on an important privilege issue and (b) that there will be an immediate test of confidence once Parliament returns as there is a supply vote on March 28.
We can add to this the fact that the PM has retained the confidence of the House of Commons, as evidenced by a series of votes before the House rose for the holiday period. It is not surprising that the Governor General acceded to his prorogation advice in these circumstances. Indeed, had the advice been rejected, the country would in all probability have been thrust into an election either with Mr Trudeau leading the Liberal Party against the wishes of his caucus or another leader chosen hastily.
Given the reasons provided, it is difficult to say that this prorogation violates the relevant constitutional principles in such a way as to call for additional justification. But I am wrong as often as I am right and it will be interesting to see if there is a challenge.
UPDATE:
There is a challenge, cast explicitly in terms of the UKSC’s Miller 2 decision. The press release is here and the Notice of Application is here: MacKinnon-et-al.-v.-Canada-PM-et-al.-NOA
This content has been updated on January 8, 2025 at 00:29.