On December 30, Prime Minister Justin Trudeau announced he was resigning as leader of the Liberal Party and as prime minister. In the same speech, he also announced that he was proroguing Parliament until March 24 to give his party time to select a new leader before an expected non-confidence vote that could result in an early election.
This means that the current session of Parliament has been formally terminated — a measure that is permitted under the Constitution if approved by the Governor General. Parliament will not sit, and no new legislation may be introduced, worked on, or passed, though the government will continue to operate and its ministers will remain responsible for their duties.
When Parliament returns, it will be a new session, and any legislation that was in progress during the previous session will have to be reintroduced, regardless of what status it was at prior to the prorogation.
Trudeau’s decision to prorogue comes at a crucial point for Canada-US relations, as President-elect Donald Trump is due to take office on January 20. Because of this, the decision has been criticized by some, and even resulted in legal action by a few organizations seeking to challenge it.
But most experts agree that Trudeau’s decision, ethical or not, was both constitutional and legal. This is because there are very few restrictions in the Canadian parliamentary system that limit the prime minister’s power to invoke prorogation.
“It’s actually a fairly open-ended power,” Philippe Lagassé, associate professor of international affairs at Carleton University, said in an interview with rabble.ca. “There have to be specific cases or pretty abusive use of the power for it to be denied.”
Restrictions on prorogation
One of the restrictions on prorogation is non-confidence. If a sitting prime minister has lost the confidence of Parliament, then the Governor General has grounds to refuse their request to prorogue.
But as Trudeau has been in office for nine years and survived two recent non-confidence votes in Parliament, the Governor General had little basis to refuse Trudeau’s request, explained Matthew Hennigar, associate professor and department chair of political science at Brock University, in an interview with rabble.ca.
“Trudeau has faced three non-confidence motions in a minority Parliament and survived all of them,” he said. “And that’s what the Governor General has to look at. They have to look and say, well, what is the actual experience here? Has there been enough willingness to takedown this government?”
There is also a constitutional restriction on the length of prorogation, albeit a long one. Section 5 of the Charter of Rights and Freedoms requires that Parliament sit at least once every 12 months. But Lagassé explained that the length of prorogation can also be restricted by government operations that require a sitting Parliament to function.
“As we’re seeing in this case, there’s the supply cycle,” he explained, referencing upcoming budget decisions. “Trying to request [prorogation] such that it goes contrary to the budgetary cycle, that would basically prevent the government from operating properly. Then the governor general might be able to refuse.”
But a difficulty of Canada’s constitutional and governmental practices is that many of them are based on unwritten conventions, explained Emmett Macfarlane, professor of political science at the University of Waterloo.
“It’s one of the elements of us having a partially written and partially unwritten Constitution,” he explained in an interview with rabble.ca. “A lot of the actual operation of our government and the Constitution is really about practices, conventions, and customs that have evolved over centuries, even going back to British constitutionalism, before Canada was a country.”
In other words, Macfarlane said, “We don’t have any clear rules, what we have is a history of constitutional practice.”
Legal challenges mount against Trudeau’s decision
The Justice Centre for Constitutional Freedoms (JCCF), a right-wing legal advocacy organization that represented Manitoba churches challenging COVID-19 restrictions, as well as members of the Freedom Convoy, has filed a claim in Federal Court, challenging Trudeau’s decision to prorogue.
Another group, Charter Advocates Canada, which advocates for constitutional freedoms, civil and human rights, is also separately challenging the decision. And Democracy Watch, an organization which advocates for democratic reform, has said that they, too, are considering mounting a challenge.
John Carpay, president of the JCCF, explained that they’re challenging the decision on the basis that it is unconstitutional and being abused to escape a non-confidence vote.
“It’s a constitutional issue because the way our democracy is supposed to work is that the government is accountable to Parliament,” he said in an interview with rabble.ca. “And a prorogation for 11 weeks means that for 11 weeks, the government is accountable only unto itself.”
The JCCF claim relies on a 2019 UK Supreme Court decision. In the decision, the court ruled that the then UK Prime Minister Borris Johnson’s proroguing of Parliament hindered MPs’ ability to voice their opinions about Brexit.
“We’re saying ‘this is a very relevant precedent,’” Carpay explained. “‘It’s a very thoughtful decision, and it’s a decision that we urge you to follow.’”
But Macfarlane said he thinks that courts ought to avoid regulating Parliament in this way.
“I think the courts need to stay away from this like it’s radioactive,” Macfarlane said. “This is something that is governed by a different umpire — the Governor General at the end of the day.”
“It’s a political decision about the relationship between government and Parliament,” he continued. “It is not a legal matter for the courts to decide, and so I really do think this legal challenge is doomed from the outset.”
Hennigar said although it’s not uncommon to see international precedent cited in this fashion, there are few written restrictions on prorogation in Canada’s system, so it will be difficult for a judicial system to cite a basis to go against the prime minister’s decision.
“I think it’s important to note there are no actual legal standards for a judge to use here,” said Hennigar. “So how would a court make a legal ruling about how long is too long? Or what is enough of a government avoiding accountability that it now trips some legal requirement? I don’t see that standard in law anywhere in our system.”
Harper’s prorogation more controversial, experts say
Trudeau’s request to prorogue has sparked comparisons to a 2008 prorogation under Conservative Prime Minister Steven Harper. Harper’s request to prorogue Parliament — which was approved, albeit with a delay — came only six weeks after his election, in response to opposition parties’ intention to vote non-confidence over Harper’s tabled Fall Economic Update.
As the non-confidence would have triggered an election less than six months after the previous one, the opposition parties proposed an alternative — a coalition government between the Liberal Party and the NDP, with the support of the Bloc Québécois.
To avoid this, Harper prorogued Parliament and, as a result, remained in power for another six years, as the coalition disbanded shortly after.
Experts still disagree on the validity of the prorogation.
“There still is some disagreement about what are the limits on prorogation in a context like that,” said Macfarlane, “although most constitutional experts agree that the Governor General was right.”
“The current circumstances are even easier to justify,” he continued. “This prorogation comes after the government has been in office for a long time. We’re expecting an election, whether it’s when the government is defeated, or whether it happens in October.”
Lagassé said Trudeau and Harper’s prorogations share similarities, but there are important differences.
“It’s a bit different because the argument there is ‘we’re going to vote no confidence and we’re going to replace the government with a new one,’” he said. “In this scenario, that’s not the position. The position is ‘we’re going to vote no confidence and go into an election.’”
Lagassé explained that it’s a question of when an election will take place — in October, as scheduled, or earlier — not a question of replacing the current government. Lagassé also commented that there is hypocrisy from some partisan stakeholders on the decision.
“Seeing the Conservative pundits and commentators arguing that this is unconstitutional and that somehow it’s very different from 2008 is stunning,” Lagassé said. “To be honest, it’s like — no, it’s quite similar.”
“When you guys are in power, it’s fine,” he continued. “But when your opponent is in power, then it’s bad.”
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Nick Seebruch, editor
