Some Thoughts on the Prorogation Case, MacKinnon v. Canada
In previous posts, I mused about the possibility of a challenge to Prime Minister Trudeau’s advice to the Governor General to prorogue Parliament from January 6 to March 24 of this year. There is now a challenge and, moreover, it has been expedited by the Chief Justice of the Federal Court: the hearing will be held next week and a decision should be made well before the return of Parliament on March 24. I will be discussing the case at several public events in the coming weeks, starting this Monday at the University of Ottawa (the event is sold out but virtual access is possible via the link here).
In this post, I assess the issues that the Federal Court will have to address. My bottom line is that I think the challenge is unlikely to be successful. A useful way to think about the case is to take the applicants’ case at its highest and identify some of the difficulties it runs into.
There is no doubt that the prorogation was politically motivated at least in part. Indeed, there was undoubtedly a partisan motivation behind it. Mr. Trudeau is very unpopular, both with the Canadian public and his own caucus. Were he to lead the Liberal Party of Canada into a general election, the party would likely suffer significant losses and certainly relinquish power to Mr. Poilievre’s ascendant conservatives. His dual decision to advise prorogation and announce his intention to hand the baton to a new leader of the Liberal Party of Canada avoided a vote of no confidence that looked inevitable and permitted his party to launch a high-profile leadership campaign that will dominate the headlines, news cycle and social media between now and March 24. A new leader will be better placed to avoid a vote of no confidence, prolong the life of Parliament and fight a general election on much stronger ground than Mr. Trudeau. Therefore, the prorogation served partisan interests.
Furthermore, the prorogation comes at a politically fraught time. President Trump has returned to the White House and is in belligerent, even bellicose, humour. Yet with Parliament prorogued, legislative counter-measures are impossible and there are no committees or debates to hold the government to account as it tries to respond to an economic and international relations crisis. As Crampton CJ put it in his decision on the motion for an expedited hearing:
That challenge is pressing and urgent because President-elect Trump has threatened to impose the 25% Tariff swiftly upon assuming office on January 20, 2025. If the underlying Application is not scheduled to be heard on an expedited basis, there will be no opportunity for Canada’s elected representatives to debate this serious threat and take any action that they may consider appropriate for over two months following President-elect Trump’s assumption of office. The fact that the executive branch of government will continue to function during the period that Parliament is prorogued is beside the point. The fact remains that there would be no opportunity for Parliament to carry out its constitutional functions, including by availing itself of legislative tools at its disposal, for a significant period during which Canada will likely face a grave challenge (2025 FC 106, at paras. 55-57).
This is the case at its highest. The applicants also have one helpful case on their side: the decision of the United Kingdom Supreme Court in R (Miller) v. Prime Minister, [2019] UKSC 41. There, the Court concluded that Prime Minister Johnson’s advice to prorogue Parliament in the run-up to a ‘No Deal’ Brexit from the European Union was unlawful as it lacked a reasonable justification. More importantly, the Court posited a general test in the following terms:
a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course (at para. 50).
Similarly, the applicants say, the Trudeau prorogation comes at a critical moment, when Parliament is needed to make laws and scrutinize the executive and — being tainted by partisan motives — lacks reasonable justification.
However, there are difficulties between the applicants and success on the merits.
First, there is the issue of whether the Federal Court has jurisdiction at all. Second, it must be determined whether prorogation is a political question not suitable for resolution by the courts. Third, Canadian courts will have to decide whether the decision of the United Kingdom Supreme Court in Miller 2 should be followed in Canada. Fourth, if so, it will be necessary to determine how Miller fits into the Canadian framework for judicial review: the Federal Court will have to identify the legal and factual constraints on the Prime Minister in advising the Governor General to prorogue Parliament. Fifth, and lastly, it will be necessary to determine whether a reasonable justification, in terms of the Miller 2 decision and the Canadian judicial review framework, was offered in support of the prorogation. Some of these difficulties can be overcome, but I think the latter two will likely prove insurmountable.
Jurisdiction
The applicants brought their claim in Federal Court. The jurisdiction of the federal court is statutory, determined by the scope of the Federal Courts Act, RSC 1985, c F-7. Under s. 2, only decisions of a federal board, commission or other tribunal are reviewable in Federal Court:
federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made under a prerogative of the Crown, other than the Tax Court of Canada or any of its judges or associate judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867.
The difficulty is that the decision to advise the Governor General to prorogue Parliament is not the exercise of “jurisdiction or powers conferred by or under an Act of Parliament”. The relevant jurisdiction is granted by the Constitution Act, 1867, which is not an “Act of Parliament” within the meaning of s. 2 (Southam Inc. v. Canada (Attorney General), [1990] 3 FC 465 (CA), at p. 479, per Strayer JA). Nor is the decision at issue “by or under an order made under the prerogative”. The prerogative is “now embedded in section 55 of the Constitution Act, 1867” (Galati v. Canada (Governor General), 2015 FC 91, [2015] 4 FCR 3, at para. 56, per Rennie J). The “source” of the prerogative is, therefore, the Constitution (Wood v. Canada (Attorney General), 2024 FC 182, at para. 51, per Pamel J). Ultimately, the power to prorogue is sourced in the Constitution, and it is not obvious that this meets the jurisdictional test set out in the Federal Courts Act (see also Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (CA), at paras. 69-76). The upshot would be that the superior courts have the authority to rule on the lawfulness of prorogation, filling any “gap” left (Black, at para. 76) by invoking their inherent powers (see e.g. Justice pour le Québec c. Procureur général du Canada, 2023 QCCS 2787, at paras. 25-33, per Piché J, contemplating review of the appointment of a unilingual Governor General by the Queen).
A distinct difficulty is that it is not clear that the giving of advice to the Governor General amounts to a decision capable of review in Federal Court (Conacher v. Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411). The Federal Courts have jurisdiction where “a matter—usually administrative conduct or inaction—affects legal rights, imposes legal obligations or causes real prejudicial effects” (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 FCR 294, at para. 94). Advice from the Prime Minister to the Governor General does not, in and of itself, do anything at all. Any decision is taken by the Governor General. This does not strike me as a particularly plausible objection to the Federal Court assuming jurisdiction, however: the Governor General is bound (save perhaps in exceptional cases) to follow the advice provided by the person who has for the time being the confidence of the House of Commons), such that in reality, the Prime Minister’s decision to advise prorogation will produce legal effects.
These are strong arguments against the Federal Court having jurisdiction. But I do not think they are conclusive. For it is clear that the Federal Courts exist in order to ensure that there is a comprehensive regime for judicial review of federal decision makers. If there is no judicial review in these circumstances in federal court, the reality is that the superior courts will have jurisdiction (see Black and Justice pour le Québec). Subjecting federal administrative action to judicial review in superior courts would risk a patchwork quilt of jurisdiction, with competing superior courts issuing diverging judgments. This would not be in the national interest and would undermine the intention of Parliament in creating a federal courts system in the first place, which was to undo the patchwork quilt that had developed by the late 1960s. As it happens, there is venerable Supreme Court precedent, calling for an appropriately, large and liberal interpretation of the Federal Courts Act in order to secure Parliament’s intention to create a comprehensive regime of federal judicial review:
As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts… Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction (Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 SCR 626, at para. 36).
Notably, the Supreme Court in that case rejected the proposition that the Federal Courts Act should “be read to find “gaps” unless the words of the statute explicitly close them” (ibid., at para. 34). The jurisprudence above in relation to s. 2 of the Federal Courts Act and the ‘gaps’ that can be found there should be read with that admonition in mind. An interpretation denying jurisdiction to the Federal Court would amount to “an interpretation that hives off exercises of federal prerogative power from exercises of powers under orders made by or under the prerogative power” that “is a technical distinction that serves only to trap the unwary and obstruct access to justice” (Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, at para. 56, per Stratas JA). Indeed, the circumstances of this case eloquently illustrate the utility of Federal Court jurisdiction: the alternative is competing applications for judicial review in a multiplicity of provincial superior courts each of which might come to different conclusions about their jurisdiction and the merits of the case. There is no doubt here that we are dealing with federal administrative action. Technical objections based on parsing s. 2 of the Federal Courts Act should be left for the complicated cases involving interactions between federal and provincial authority (e.g. Anisman v. Canada (Border Services Agency), 2010 FCA 52).
Ultimately, these considerations militate, to my mind, in favor of the Federal Court assuming jurisdiction in this instance.
Justiciability
The next question is whether the decision to prorogue parliament is a political question that is not suitable for review by the courts.
The United Kingdom Supreme Court avoided this objection by reasoning that the scope of prerogative powers has always been a matter for the courts: opining on the existence of a prerogative power (rather than its exercise) involves answering a pure question of law (Miller 2, at paras. 35-36). Now, this was rather disingenuous, as will be discussed in the next section, because the judges’ analysis led them to impose substantive limits on the exercise, rather than the existence, of the prerogative power to prorogue.
Nonetheless, it is unlikely that a political questions objection would succeed in Canada. The leading case is Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4. There, Stratas JA described the category of non-justiciable cases as “very small” (at para. 67):
In rare cases … exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers. For example, it is hard to conceive of a court reviewing in wartime a general’s strategic decision to deploy military forces in a particular way (at para. 66).
As I will elaborate further below, I do not think prorogation is inherently unsuitable for judicial adjudication. Miller 2 rather proves the point. Reasonable justification is a justiciable standard. As the UK Supreme Court put it in Miller 2:
That standard is one that can be applied in practice. The extent to which prorogation frustrates or prevents Parliament’s ability to perform its legislative functions and its supervision of the executive is a question of fact which presents no greater difficulty than many other questions of fact which are routinely decided by the courts. The court then has to decide whether the Prime Minister’s explanation for advising that Parliament should be prorogued is a reasonable justification for a prorogation having those effects (at para. 51).
Beyond this, Canadian courts exist to uphold the rule of law and prevent the abuse of public power. For them to promulgate a self-denying ordinance in a politically sensitive case would undercut that institutional role.
The Miller 2 decision
The leading judicial decision on the limits of the power to prorogue parliament is, of course, Miller 2.
The factual legal context of that case was exceptional. Most importantly, the United Kingdom was set to crash out of the European Union, its largest trading partner, without a deal unless action was taken before October 31, 2019. Despite this looming deadline, which would have caused the United Kingdom to fall into a legal vacuum as far as trade with the European Union was concerned, Prime Minister Johnson advised the Queen to prorogue parliament for five weeks during a critical eight-week period in the run-up to October 31. In the subsequent litigation, Johnson refused to offer any rationale for the prorogation, though by virtue of the ‘duty of candour’ internal memoranda were put before the courts.
The United Kingdom Supreme Court concluded that the prorogation interfered with Parliament’s lawmaking and accountability functions, as it shut the institution down at a critical moment in the Brexit process, indeed, in advance of a “fundamental change” in the Constitution (at para. 57): it had “an extreme effect upon the fundamentals of our democracy” (at para. 58). On the facts, it was unlawful:
It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful (at para. 61).
The Miller 2 decision has been the subject of considerable academic commentary, much of it critical. For my part, I have criticized the legal analysis in Miller 2 (see here).
First, the UK Supreme Court’s approach was unprincipled. This was not really a case about the existence of a prerogative power. Rather, the distinction between the existence and exercise of the prerogative was manipulated so as to import a test of “reasonable justification” that had never previously been suggested as a condition of the lawful exercise of the power to prorogue Parliament. In reality, I wrote, this sleight of hand meant “the scope of the prerogative [became] an empty vessel into which any substantive limitations on the prerogative can be poured”.
Second, the approach led to doctrinal incoherence by imposing a free-standing burden of explanation on any Prime Minister seeking to prorogue Parliament, because any prorogation will by definition interfere with Parliament’s law-making and accountability functions. The problem with it is that it creates a unique burden in the context of prorogation. Nowhere else in the law of judicial review of administrative action does such a free-standing burden exist. It is true that there is a nod in Miller 2 to the exceptional circumstances of the Johnson prorogation: “Such an interruption in the process of responsible government might not matter in some circumstances” (at para. 57). Nonetheless, the UK Supreme Court’s analysis cannot be confined to obvious cases.
Third, the approach disregarded relevant historical evidence that Parliament can be prorogued to achieve constitutional change or to prevent scrutiny of the executive. One relevant example comes from Canada. In 2009, Prime Minister Stephen Harper’s prorogation of Parliament frustrated a parliamentary committee’s inquiry into the alleged mistreatment of detainees by Canadian armed forces. The prorogation took effect for the period of the 2010 Winter Olympics in Vancouver. The official justification offered was that a prorogation would allow the government time to consult with Canadians on its policy programme.The difficulty here for Miller 2 is that the “reasonable justification” standard is ostensibly generated by a historically informed analysis of the existence of a prerogative power. But in Canada, any standard applied to the existence of a prerogative power would have to account for historical uses of prorogation. If the 2009 Harper prorogation would fail to meet the “reasonable justification” standard, or even struggle to meet it, that is a reason to question whether the courts should impose such a standard.
Lastly, at the risk of stating the obvious, Miller 2 is not binding on Canadian courts. They can choose not to follow it and I think there are good reasons not to do so.
The Canadian judicial review framework
The leading Canadian case on judicial review is, of course, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653. This decisionestablished the reasonableness standard as the presumptive standard of judicial review of administrative action. Assuming that the decision to advise the Governor General to prorogue parliament is reviewable by the courts, the reasonableness standard will surely apply.
I am not aware of any challenge to a prerogative power determined under the Vavilov framework. This is therefore, a novel case.
According to Vavilov, a decision will survive reasonableness review unless it is tainted by a significant error. These significant errors typically take one of two forms: on the one hand, an absence of internal coherence or logic in the reasons for the decision; on the other hand, a failure to justify the decision in view of the applicable, legal and factual constraints.
It would be difficult to maintain that the prorogation decision was based on incomprehensible reasoning. On the contrary, as will be noted below, the reasoning was clear and did not lack for logic or coherence. The real question is whether it is consistent with the applicable, legal and factual constraints.
In this regard, an obvious difficulty arises, which recalls the considerations in relation to justiciability. Normally, on judicial review under Vavilov, the most important element of the contextual analysis a court will undertake of the reasonableness of an administrative decision is the governing statutory scheme (Vavilov, at paras. 108-110), for this will set out the scope of and limits on a decision-maker’s powers. As far as the prerogative is concerned, however, there are no such statutory limits.
This reality was recognized by the United Kingdom Supreme Court in R. (Sandiford) v. Foreign and Commonwealth Secretary, [2014] UKSC 44. This was a case about the rule that an administrative decision-maker cannot fetter its discretion. The Court reasoned that the ordinary rule against fettering cannot apply to the prerogative, because there are no statutory limits to apply it to. As Lord Sumption explained:
A common law power is a mere power. It does not confer a discretion in the same sense that a statutory power confers a discretion. A statutory discretionary power carries with it a duty to exercise the discretion one way or the other and in doing so to take account of all relevant matters having regard to its scope. Ministers have common law powers to do many things, and if they choose to exercise such a power they must do so in accordance with ordinary public law principles, ie fairly, rationally and on a correct appreciation of the law. But there is no duty to exercise the power at all. There is no identifiable class of potential beneficiaries of the common law powers of the Crown in general, other than the public at large. There are no legal criteria analogous to those to be derived from an empowering Act, by which the decision whether to exercise a common law power or not can be assessed. It is up to ministers to decide whether to exercise them, and if so to what extent.
I have criticized this decision (see here), but in the context of prorogation and the Vavilov framework, Lord Sumption’s observation is right on point. If there is no statute, the governing statutory scheme cannot impose any constraints. The framework must be extremely permissive. To put it in the language used by Stratas JA in the discussion of justiciability above, the range of acceptable and defensive decisions is potentially unbounded: it is not so much a matter of courts refusing to intervene because prorogation is a ‘political question’ as much as the courts recognizing that there is no basis for intervention given the scope of the power at issue.
Indeed, there is a respectable argument that the only constraint on prorogation in the Canadian context is the requirement in s. 5 of the Charter of Rights and Freedoms that there be a sitting of Parliament once every 12 months. As Dr. Sirota observes:
[Section 5 of] [t]he Canadian Charter of Rights and Freedoms guarantees that “[t]here shall be a sitting of Parliament and of each legislature at least once every twelve months”. An attempt to prorogue the Canadian Parliament or a provincial legislature for more than a year would contradict this guarantee. A court ought to be able to recognize this and [pursuant to s 24 of the Charter] provide any “such remedy as the court considers appropriate and just in the circumstances”.
However, if the prorogation advised were for a period of less than a year … it would not be appropriate for the Canadian courts to follow Miller [II]. The Charter sets out a bright-line rule and it would not be the courts’ role to re-write the constitution that Canada actually has to improve it on a pattern suggested, decades after its enactment, in a different jurisdiction.
In short, as long as prorogation does not breach the requirement of a sitting of parliament once every 12 months, it can be said that no legal limits have been transgressed.
This would not, however, be the end of the matter as far as Vavilov is concerned. For the Supreme Court of Canada has also recognized that there may be other limits on administrative action. Limits may arise from interpretive or common law principles: interference with Parliament’s law-making and accountability functions, as recognized in Miller 2 could properly be described as limits. True, such unwritten constitutional principles cannot be invoked to invalidate statutes in Canada (Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 SCR 845), but unwritten principles can be invoked to invalidate administrative action (Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31). The success of this argument would seem to depend, however, on Miller 2 being adopted in Canada.
It is arguable — and here I stress arguable — that the prorogation could trigger the ‘harsh consequences’ constraint set out in Vavilov:
Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood (at para. 133).
Perhaps the consequences of prorogation are so severe that they threaten an individual’s liberty or dignity. In particular, the ability to vote in a general election and to bring pressure to bear on elected representatives are imperilled by prorogation. But I am not aware of any cases even close to being on point. And “the legislature’s intention” in respect of the prerogative is — again — not present.
In any event, as I discuss in the next section, the justification offered by Mr. Trudeau adequately accounts for the interference of prorogation with Parliament’s law-making and accountability functions.
The justification of the decision
Assuming that the decision is reviewable, and that the principles of parliamentary sovereignty and accountability limit the prorogation power, the question is then whether the decision was justified. Under both Vavilov and Miller 2, what matters is the existence of adequate justification. On this, the publicly available rationale provided for the Trudeau prorogation seems to amply meet the justificatory burden.
In fact, the public justifications offered by Mr. Trudeau read as if they had been prepared by advisors who had read Miller 2. The Prime Minister talked, explicitly, in terms of Parliament’s lawmaking and accountability functions. He expressed the view that Parliament was deadlocked in terms of its ability to pass laws and hold the executive to account and needed a reset, which could only be provided by a new Prime Minister. He also took pains to point out that there would be a vote on supply at the end of March, providing Parliament with an opportune moment to test its confidence in Mr. Trudeau’s successor.
Whether one that agrees or disagrees with the plausibility or sincerity of these justifications, the fact remains that they are justifications that, moreover, are cast explicitly in terms of fundamental constitutional principles. When justifications are offered that speak to the relevant legal and factual constraints, the scope for judicial intervention on judicial review is extremely narrow. This is all the more or the more so in the review of a prerogative power that is subject to relatively few legal and factual constraints. Simply put, it is not for a court on judicial review to second guess the judgment of the decision-maker concerned. As the UK Supreme Court put it in Miller 2:
The Prime Minister’s wish to end one session of Parliament and to begin another will normally be enough in itself to justify the short period of prorogation which has been normal in modern practice. It could only be in unusual circumstances that any further justification might be necessary. Even in such a case, when considering the justification put forward, the court would have to bear in mind that the decision whether to advise the monarch to prorogue Parliament falls within the area of responsibility of the Prime Minister, and that it may in some circumstances involve a range of considerations, including matters of political judgment. The court would therefore have to consider any justification that might be advanced with sensitivity to the responsibilities and experience of the Prime Minister, and with a corresponding degree of caution (at para. 51).
Sure, the courts frown on ideological or politically expedient decisions (albeit in contexts where the decisions are taken under statute) but they are ill-equipped to disentangle potentially partisan motives from public-regarding ones. Judicial review is confined to the record and is not designed to look into the hearts and souls of those charged with making decisions.
None of this is to suggest that the decision to prorogue parliament was the right one. It is undeniably the case that there is a strong argument in favor of having Parliament sitting while a new American president takes office, especially one promising volatility on all fronts. However, the desirability of having Parliament in place, and the timing of any general election, is quintessentially a matter for political judgment. Given the rationale that was publicly offered for the prorogation, it is difficult to see how the courts could come to any other conclusion than that the decision was justified in view of the relevant legal and factual constraints.
In conclusion, there are significant hurdles that the applicants in this case will have to surmount even to convince the Federal Court to conduct an analysis of the reasonableness of the prorogation decision. And, in my view, even if the court gets that far, it ought to uphold the decision.
UPDATED February 3 at 11.36am to include an additional quote from para. 51 of Miller 2.
This content has been updated on February 3, 2025 at 16:36.