A federal court hearing on a lawsuit challenging the prorogation of Parliament began Thursday
Chief Justice of the Federal Court Paul Crampton probed a Department of Justice lawyer on Friday, when the latter argued that a high court decision in the United Kingdom had no bearing on a Canadian lawsuit challenging Prime Minister Justin Trudeau’s prorogation of Parliament.
In a landmark 2019 decision colloquially referred to as Miller II, the Supreme Court of the UK unanimously ruled that then-Prime Minister Boris Johnson’s advice to Queen Elizabeth II to prorogue Parliament was unlawful. In their application to expedite the Canadian case, the plaintiffs noted the similarities between the two cases. One of the lawyers behind the lawsuit previously told Canadian Lawyer that the UK ruling is “really the only case where this issue has been considered by a commonwealth court.”
On Friday, Department of Justice counsel Zoe Oxaal noted that the Miller II decision was based on the high court’s finding that Johnson’s advice frustrated the constitutional role of Parliament.
“When the UK Supreme Court talks about frustrating Parliament in its constitutional role, it does so in that specific context,” Oxaal said, referring to the effect prorogation would have had on the UK Parliament’s ability to deal with Brexit.
In Canada, “Parliament is not frustrated because it will have the opportunity when it resumes next month to act as it sees fit on any of the important issues facing the country,” Oxaal argued. “Any prorogation has some effect on Parliament's ability to perform its functions, but that doesn't mean that it's frustrated,” she said, adding that the Canadian constitution “anticipates prorogations.”
In response, Crampton asked Oxaal if she had “any authority for that statement.”
“We are a democracy, and the work of Parliament is important, including the things they do every day, and so if they're not doing those things – whether in question period or committees, et cetera – arguably that's a frustration,” Crampton said.
“I take your point that every prorogation would involve that, but here we have 77 days, and that's not a trivial amount of time.”
The two-day federal court hearing began on Thursday when the plaintiffs and two intervenors presented their arguments. The Department of Justice and the third intervenor, the University of Ottawa Public Law Centre Canadian Constitutional Law Initiative, presented their arguments on Friday.
Earlier in the hearing, Oxaal further distinguished between the cases in the UK and Canada by noting the differences between the two legal systems.
“Unlike the UK, Canada’s constitution actually does set a limit on prorogation – that's in s. 5 of the Charter [of Rights and Freedoms] by requiring the annual sitting of Parliament. There is no such limit in the UK,” she said.
“In Canada, the court doesn’t need to look to the common law to find a limit on prorogation. A limit already exists,” Oxaal added. “It's part of our written constitution.”
The plaintiffs’ lawyers have argued that their lawsuit aimed to determine the scope of the prime minister’s authority to prorogue Parliament.
“What if there are other limits [to prorogation], as the applicants are suggesting?” asked Crampton.
Oxaal responded, “In effect, what you would be proposing to do would be to amend that provision [of the Charter] that is the legal limit on prorogation.”
“Well, it depends on how you look at it,” Crampton said. “It's a limit. It may not be the only limit. That's what they're saying. That's what I have to decide.”
