A Lawful Prorogation: MacKinnon v. Canada (Attorney General), 2025 FC 422

With a new Prime Minister set to take office on Monday morning once the Liberal Party of Canada has determined who should succeed Justin Trudeau as its leader, it is quite possible that a general election will be called early next week or that Parliament will be recalled forthwith. Accordingly, the lawfulness of the Trudeau prorogation could well have become moot the other side of this weekend. Unsurprisingly, given that he already expedited the hearing of the case, Crampton CJ rendered the Federal Court’s decision in MacKinnon v. Canada (Attorney General), 2025 FC 422 last night, dismissing the application for judicial review. Here I pause to note that the 313-paragraph decision was released in both official languages. Given that the hearing took place only three weeks ago, producing English and French versions was a considerable logistical challenge, met with aplomb by the Chief Justice and his staff.

In my post previewing the case, I noted the various issues that would have to be determined: jurisdiction, justiciability, the utility of Miller 2, the relevance of unwritten constitutional principles and the role of reasons. Below, I will briefly describe how Crampton CJ addressed these issues. I will also discuss an additional issue: the standard of review.

On jurisdiction, Crampton CJ sensibly concluded (at para. 61) that “the exercise of prerogative powers by federal officials is within the purview of the definition of “federal board, commission or other tribunal” set forth in subsection 2(1) of the Federal Courts Act: Hupacasath at paras 41–58” (see also Professor MacDonnell). He also addressed the proposition that the Prime Minister’s advice to the Governor General is not reviewable because it does not, in itself, produce any legal effects. Rejecting the proposition, Crampton CJ took a realistic view of Canada’s constitutional arrangements and, in particular, the fact that Prime Ministerial advice to prorogue has routinely been followed:

In these circumstances, the Respondent’s contention that the Prime Minister’s advice cannot affect legal rights, impose legal obligations, or cause prejudicial effects fails to reflect the reality of the situation. The Prime Minister’s advice is in fact a critical lynchpin of the exercise of the Crown’s prerogative to prorogue Parliament. If the Prime Minister exceeded the constitutional or other legal limits of his authority in providing that advice, the elected representatives of the people would unlawfully be prevented from performing their constitutional functions. In my view, this constitutes a sufficient adverse prejudicial effect on those elected representatives and the public at large to give this Court jurisdiction in this matter: see generally Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132 at paras 23–24; Democracy Watch NB at para 56 (at para. 68).

Ultimately, Crampton CJ concluded, subjecting the advice of the Prime Minister to judicial review would further accountability and protect the rule of law (at para. 76). This constitutes a healthy dose of institutional realism, in my view, which ensures that the federal courts play the role they were intended to play in judicial review of federal administrative action (for more nuance on this point, see Professor Lagassé).

On justiciability, Crampton CJ’s conclusion was that “the courts have a legitimate role to play in ensuring that exercises of executive powers, including Crown prerogative powers, conform with the norms, imperatives and dictates of the Constitution, as well as with the rule of law” (at para. 108). What matters is whether an application for judicial review presents a legal question suitable for judicial resolution:

To the extent that the limits of the Prime Minister’s authority to exercise prerogative powers are constitutional or otherwise legal in nature, the issue as to whether he exceeded those limits in making the Decision that is currently before the Court is justiciable. This issue has the requisite “sufficient legal component to warrant the intervention of” this Court: see paragraph 102 above. The constitutional or other legal limits that may circumscribe the prerogative to prorogue Parliament provide the objective legal standards against which to adjudicate the issue described immediately above. Those objective standards also ground a legitimate role for the Court within the separation of powers: Democracy Watch v Canada (Attorney General), 2023 FC 31 para 76, aff’d 2024 FCA 75 (at paras. 109-110).

However, a number of other issues canvassed by the applicants were not justiciable, as they are beyond the ken of the courts and do not involve the interpretation and application of legal standards:

However, certain issues raised by the Applicants in advancing their case are not justiciable. These include their assertions that “an election – and not a prorogation – is the only legitimate and democratic mechanism by which a ‘reset’ of Parliament can be achieved,” and that “a prorogation of almost eleven weeks, until March 24, 2025, amounts to an inherently unreasonable attempt to ‘reset’ [sic] of Parliament.” Another non-justiciable issue is whether Parliament was “paralyzed” in the period leading up to the prorogation, as mentioned in the Decision. These are essentially matters that go to the “wisdom” or “merits” of the Decision, which are not justiciable issues. As the SCC observed in Khadr, “[i]t is for the executive and not the courts to decide whether and how to exercise its powers”: Khadr at para 36 (at para. 113).

To my mind, this is consistent with the general understanding of the role of the courts in judicial review cases: they are not there to opine on the wisdom or merits of government action but must determine whether the government action at issue goes beyond the limits of legality; the factual context will be important, but the court must take the facts as they find them. Indeed, in the above-quoted paragraph, Crampton CJ included a footnote: “the duration of a prorogation may be relevant in any assessment of the effect and true purpose of a prorogation”. In other words, the wisdom or merits of prorogation are not matters upon which the courts can opine, but the facts of a prorogation provide the context within which a claim of unlawfulness falls to be determined.

Crampton CJ’s approach to justiciability is bound up with his consideration of the standard of review. Interestingly, Crampton CJ accepted the applicants’ argument that the correctness standard ought to apply. This was both a constitutional question (at para. 148) and one of central importance to the legal system (at para. 150). I agree that questions of the scope or extent of a prerogative power are subject to review for correctness: as has been the case for centuries, it is the role of the courts to determine whether a prerogative power exists. However, as Crampton CJ acknowledged, “the jurisprudence does not appear to provide much guidance regarding the standard of review to apply when reviewing specific exercises of the Crown prerogative powers that have been challenged on the grounds of being ultra vires the authority of the relevant executive branch actor” (at para. 151). For my part, I think it makes more sense to treat the existence of a prerogative power as subject to correctness review but the exercise of the prerogative power as subject to reasonableness review under the Vavilov framework. To be fair to Crampton CJ, I do not think any of the parties pressed this point, and he concluded in any event that separation of powers considerations “implicitly require a deferential approach to matters within the legitimate sphere of activity of the other branches of government” (at para. 155).

Critics of the contemporary approach to justiciability, such as Professor Macfarlane, suggest that exercises of (some?) prerogative powers should be unreviewable. This is a respectable view, but I believe it is normatively and analytically suspect. Normatively speaking, walling some areas of executive action off from judicial review on the basis of the source of or nature of the power at issue risks undermining the rule of law. Analytically speaking, defining areas of “policy” where the judicial writ cannot run is difficult and tends to lead to arbitrary results. As McLachlin CJ once put it, the “attempt to maintain a clear distinction between policy and legality has not prevailed” (Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 SCR 5, at para. 14). Far better, normatively and analytically, to review deferentially than not to review at all. Only where a clear constitutional rule precludes review should a matter be treated as non-justiciable (see further here; though note my view that enforcing constitutional conventions is not for the courts, on which I share the scepticism of political scientists such as Professors Macfarlane and Lagassé). There is nothing wrong with Professor Poole’s “prerogative two-step” of reviewing but deferring.

As far as the utility of Miller 2 is concerned, Crampton CJ was sceptical. He treated it with “caution” (at para. 169) and did not adopt the UK Supreme Court’s approach wholesale, asking instead whether the prorogation was consistent with “the norms, imperatives and dictates of the Constitution, as well as with the rule of law” (at para. 169). As far as these were concerned, Crampton CJ considered s. 3 of the Charter (concluding that the prorogation did not interfere with the right to vote, s. 5 of the Charter (concluding that the requirement to hold a session of Parliament at least once a year did not preclude imposing other limitations on prorogation) and unwritten constitutional principles. Of these, he remarked that “three tenets” are important:

(i) that the three branches of government should refrain from “undue interference” with the distinct core competencies and institutional capacities of the others (see paragraphs 81–82 above); (ii) “the Constitution mandates government by democratic legislatures, and an executive accountable to them” (see paragraph 203 above [emphasis added] – see also Power at para 56); and (iii) the rule of law protects “individuals from arbitrary state action” by ensuring “that the law is supreme over the acts of both government and private persons” (see paragraph 208 above) (at para. 212).

Here, again, I think the Vavilov framework for reasonableness review would have been useful in adding some analytical meat to these theoretical bones. The rule of law is certainly an important feature of the Canadian Constitution, but it is operationalized by detailed rules and principles of judicial review, such as the Vavilovian insistence on decisions that are justified in view of the relevant legal and factual constraints.

In terms of the overall outcome, not much turned on the absence of the Vavilov framework in this instance (and, as Professor MacDonnell has pointed out, much of the reasoning actually tracks Miller 2, but ends up concluding that the prorogation was lawful given the ample reasons that were absent in the British case). As Crampton CJ explained, on any view, the role for unwritten constitutional principles is “narrow” when it comes to potentially invalidating executive action, as they are “restricted to what arises by necessary implication from the Constitution’s text and architecture” (at para. 224) and, in any event, the applicants failed to discharge their burden of demonstrating a violation of any principles here (at para. 225). There was no violation of the democratic principle, because the applicants could not show that the prorogation prevented a vote of no-confidence from taking place (at para. 240) or that oversight of the government was frustrated (at para. 260).

As far as the rule of law was concerned, the applicants pointed to what they claimed were improper purposes underlying the Prime Minister’s advice to prorogue Parliament: in their view, he wrongly claimed that Parliament was “paralyzed” and sought to achieve a partisan advantage through prorogation. Whether Parliament was paralyzed or not, and the various other considerations relating to the state of affairs in Parliament at the time of prorogation, were not justiciable in any event. As for the partisan motivations, whilst Crampton CJ suggested that partisan motivations for prorogation might not be proper (at para. 274), he acknowledged that any such motivations could not be “disentangled” from the considerations that supported the decision (at para. 275):

In summary, the considerations that supported the making of the Decision by the Prime Minister included a mix of some matters that pertain to the affairs of Parliament and some partisan considerations that pertain to the Liberal Party. The Prime Minister also appears to have considered that it would be in the public interest for Canadians to have “a real choice in the next election,” presumably as opposed to having an outgoing or interim leader representing the governing party. The Prime Minister was not obliged to give any reasons for proroguing Parliament. However, having done so, it was open to the Applicants to challenge them. While the overall circumstances are troubling, it is not possible to disentangle the various considerations identified by the Prime Minister, for the purpose of determining whether, on balance, he exceeded the scope of his constitutional and legal authority in making the Decision (at paras. 280-282).

In short, reasons were not required (at paras. 281, 286) and those that had been given were either non-justiciable or consistent with the rule of law (at paras. 274, 282). The burden was on the applicants and they had simply not made out their case (at para. 283), given that the Prime Minister was not under a free-standing obligation to justify the prorogation (at para. 286).

Once more, Vavilov comes to mind. I appreciate that the applicants cast their challenge in terms of constitutional principles and that Crampton CJ deftly dismissed it on the basis that a breach of constitutional principles had not been made out (see, again, Professor MacDonnell on threading the needle between “seeking to simultaneously ensure judicial accountability for unlawful acts while also preserving the separation of power”). This is an excellent example of ‘writing for the losing side’ and fairness to the Chief Justice requires pointing out that the federal government’s primary position was that the matter was entirely non-justiciable, not that the decision was reasonable in a Vavilovian sense.

But it would, in my view, further the clarification and simplification goals of the Vavilov framework to apply it to all executive action, whether sourced in the prerogative, statute or otherwise. Having a bespoke set of standards for prorogation undermines simplicity and clarity by suggesting that some areas of executive power are special and subject to different rules (see also Dr Sirota). Furthermore, the application of neutral principles developed to be applied to all cases, not just a subset of cases, supports the legitimacy of judicial intervention, especially in politically charged cases (see the excellent lecture and analysis here). In that limited sense, the decision in MacKinnon was perhaps an opportunity missed.

Again, however, applying Vavilov would not have changed the outcome. As I commented in my post previewing the case, “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”. When there is an appeal (assuming that the Federal Court of Appeal and, possibly, the Supreme Court of Canada exercise their discretion to hear a matter that is moot), it will be interesting to see if Vavilov features more prominently.

This content has been updated on March 7, 2025 at 22:38.