Federal Court dismisses prorogation challenge but opens the door to future attempts

The Federal Court has released its decision on the expedited challenge of the prime minister’s advice to the governor general to prorogue Parliament, but in doing so, left the door open to future challenges of prorogation advice.

“The applicants failed to demonstrate that the prime minister exceeded any limits established by the written Constitution, including Sections 3 and 5 of the Charter, or by the unwritten principles they identified,” Chief Justice Paul Crampton wrote in his decision.

“The applicants also failed to demonstrate that the prime minister exceeded any other legal limits.”

What was controversial among many, however, was that Crampton decided the matter was justiciable despite the Crown arguing and presenting evidence that it wasn’t.

Alex Steinhouse, counsel with Fasken Martineau DuMoulin LLP in Montreal, sees the increasing assertion of justiciability in the context of the courts examining the appointment of a unilingual lieutenant governor, the court in Quebec looking at Governor General Mary Simon not being able to speak French, and the courts examining the justice minister’s discretion of who and how frequently to appoint judges. In this particular case, there should have been a greater recognition of alternatives for accountability than the courts.

“There was no discussion whatsoever of the prime minister’s changes to the standing orders where he has to file a report of twenty days [of Parliament returning] to outline the justification for the prorogation,” he says.

“It was interesting that the Court says that they don’t have to get into any reasons or if the reasons were reasonable when the prime minister has already volunteered to do that in the political arena.”

Steinhouse believes this issue should have remained in the political realm, as the governor general can rebut the advice, though there is disagreement in the literature about that.

Emmett Macfarlane, a professor of political science at the University of Waterloo, wasn’t surprised the Court found the matter justiciable, but he thinks the reasoning is flawed.

“There are good reasons why courts should not be touching prorogations with a ten-foot pole. That’s partly because the Constitution already has an arbiter designed to protect the underlying constitutional principles at stake if a prorogation request was so egregious that it would vitiate Parliament’s role,” he says.

“That’s the governor general.”

Macfarlane says Crampton made very short work of this reasoning.

“The possibility that the governor general might one day refuse the prime minister’s advice to prorogue Parliament is not a sufficient basis upon which to immunize that advice from review by the courts,” Crampton wrote.

“The same is true with respect to the possibility that the governor general might impose one or more conditions on the requested prorogation, as the respondent and the Initiative maintain Governor General Jean did in 2008.”

Macfarlane says the problem with that logic is that a prorogation request has never been refused because there has never been one that has been worthy of being refused.

He adds that there was strong precedent after 2008 that a governor general could, in effect, impose conditions on the prime minister regarding the length of a prorogation and a confidence vote upon Parliament’s return, as it is part of their role.

Macfarlane feels the court’s dismissal of this to give themselves justiciability was simplistic because there is no doctrine of justiciability in Canada.

“If there is even a whiff that something might involve the law broadly construed, the courts are going to feel completely empowered to engage.”

He says it’s unfortunate the justiciability issue didn’t get a more serious consideration of the different institutional roles at play. It limits the scope for the political or unwritten constitution to do its work to ensure it’s about electoral accountability and not the legal resolution of some of these controversies.

Steinhouse also noted that the Court didn’t look at other limits on prorogation beyond Section 5 of the Charter, which states the House has to sit once a year. This is particularly true for budgetary allocations, which need to be voted on at prescribed times of the sitting calendar.

To that end, Parliament has already limited prorogation, along with other legislative mechanisms that deal with it, including the Emergencies Act, which don’t engage the prime minister's advice to the governor general.

“I don’t know what the long-term effects of this are, but it’s pretty much custom, if not law in certain provinces, to prorogue their legislature every year,” Steinhouse says.

“Are we saying there is going to be a pro forma challenge on an annual basis in those jurisdictions?”

Macfarlane is also concerned that Crampton conflated conventions and unwritten principles, specifically with regard to responsible government.

“Not even in academic scholarship do you see people talk about responsible government as a constitutional principle,” he says.

“There are related principles from parliamentary sovereignty, and in the UK, they talked a lot in Miller II about parliamentary accountability, but responsible government itself is the lynchpin convention.”

Macfarlane says it’s a problem for courts to conflate constitutional principles and conventions because they have decided that principles are enforceable as law and conventions are not.

“When you muddy those waters, it gives the courts so much more discretion to play around and be creative in messy ways.”

He cites the recent Supreme Court decision in Power as an example of a “mess” being made of Parliamentary privilege. Another is the recent challenge of the appointment of the lieutenant governor in New Brunswick, which the Supreme Court of Canada has granted leave to appeal.

“The courts are not well equipped to deal with the unwritten constitution,” Macfarlane says.

Paul Daly, a law professor at the University of Ottawa, notes that Crampton decided the standard of correctness should apply, not reasonableness.

“The applicants argued correctness, and the attorney general’s position was that you shouldn’t get to the standard of review at all because it should be non-justiciable. So, I don’t think he has as detailed a set of submissions on the standard of review that he might have hoped for.”

He says that whether a prerogative power exists or not is subject to correctness review, but on exercising that prerogative, and because this case was more about exercise than existence, it would have made more sense to apply the reasonableness standard set out in Vavilov.

“He didn’t go that route,” Daly says.

“He did acknowledge that some deference is inherent in the exercise, but he treated it as a case of the scope of the prerogative and said that if the prorogation violated any constitutional principles, it would be outside of the scope of the prorogation prerogative, and it would be unlawful.”

Daly says Crampton ultimately concluded that no constitutional principles were violated in the advice to prorogue Parliament. To that end, on the question of correctness versus reasonableness, Vavilov or not, would not have made a material difference to the outcome.

He feels Vavilov should have applied because the framework is already in place rather than developing a new framework for individual cases to shield the judiciary from suggestions that their approach is result-oriented.

Daly also points to how the decision’s strong assertion of the primacy of the federal courts when it comes to reviewing federal executive action under the prerogative.

“There has been a lack of clarity in the case law about the respective roles of the federal courts and the provincial superior courts. The Federal Court here came down emphatically on the side of the federal court jurisdiction, which to my mind is a salutary development that vindicates the intention of Parliament in creating the federal court system in the first place.”

Steinhouse wonders if the government will appeal the decision to deal with the justiciability assertion.

“There is a bit of a mission creep here,” he says.