A federal court began hearing arguments Thursday in a lawsuit challenging prorogation
Canada’s courts should not intervene in Prime Minister Justin Trudeau’s prorogation of Parliament since the circumstances in which he can make such a move are outlined by constitutional convention rather than constitutional law, an Ottawa-based legal initiative told a federal court.
The Canadian Constitutional Law Initiative, a University of Ottawa Public Law Centre project, submitted its factum to the court on Monday as one of three intervenors in MacKinnon v. Canada. Filed in January and backed by the Justice Centre for Constitutional Freedoms, the lawsuit seeks an expedited order setting aside Trudeau’s prorogation of Parliament on Jan. 6.
The court heard the case on Thursday and will continue the hearing on Friday. In January, the court agreed to expedite the case, writing in its decision that doing so would potentially give Parliament the chance to address the “grave challenge” of US tariffs on Canadian goods.
The UOttawa initiative is set to present its arguments to the court on Friday.
Andrew Bernstein, a partner at Torys LLP who represents the initiative, told Canadian Lawyer on Thursday that his client’s “only concern is with the orderly development of constitutional law.
“They thought that there were some arguments being presented [in the case, and] they could assist the court in understanding some of the history, context, backstory, and nuance,” he adds.
In its factum, the initiative distinguished between constitutional law and constitutional conventions. While constitutional law is enforceable by the courts, constitutional conventions are “unwritten, non-legal rules” that arise “from the combination of longstanding practice, widespread acceptance and principle,” the initiative said.
These rules keep the executive branch in check by ensuring that “the governor general does not act without the advice of a prime minister, who in turn must maintain the confidence of the House of Commons.”
According to the initiative, the Supreme Court of Canada and the country’s appellate courts have ruled for decades that “enforcing conventions is not a judicial function.
“Judicial involvement undermines the separation of powers and risks harming the delicate balance between the executive, legislature and courts,” the factum added.
While the plaintiffs argue that their lawsuit aims to clarify the scope of the prime minister’s authority to prorogue Parliament, the initiative argued that a mixture of constitutional law and conventions already defines that scope.
Constitutional law dictates that the governor general alone has the power to prorogue Parliament, provided Parliament meets once a year.
However, the initiative said that the governor general’s discretion is restricted by constitutional convention, which holds that they can only prorogue Parliament on the advice of the prime minister.
That doesn’t mean the governor general must follow the prime minister’s advice. The initiative noted that in 2008, the governor general did not immediately accept then-Prime Minister Stephen Harper’s advice to prorogue Parliament. The governor general eventually accepted the advice with the stipulation that Harper had to reconvene Parliament in six weeks to face a confidence vote.
In the case of Trudeau’s move to prorogue Parliament, the governor general “already played the role of the constitutional umpire when she made a choice to accept the advice and prorogue Parliament, rather than exercise her reserve powers to refuse.”
The initiative added that Canadian courts have previously recognized that “attempts to constrain the prime minister’s ability to advise the governor general would be an unconstitutional attempt to constrain the general governor’s prerogative powers.”
The British Columbia Civil Liberties Association and Democracy Watch also intervened in MacKinnon. While the BCCLA argued that “asking courts to question the political motives of the other branches of government could undermine their non-partisan role in Canada’s constitutional order,” Democracy Watch called Trudeau’s Jan. 6 move “unjustifiable.”
