A valid prorogation, however unusual

Prime Minister Justin Trudeau is resigning as leader of the Liberal Party and has requested and been granted a prorogation of Parliament until March 24th. As I wrote last month, “If the PM does decide to make way for someone else, a prorogation would be entirely appropriate to allow for a quick transition to an acting Liberal leader and new PM.”

The Governor General’s decision to accept the PM’s request and prorogue Parliament is entirely appropriate.

Yet in light of the deeply controversial decision of the UK Supreme Court in 2019, deeming Boris Johnson’s prorogation request unconstitutional on the basis of its impact on ‘parliamentary accountability’, Canadian scholars have recently commented on the spectre of a potential legal challenge to a prorogation request here. Paul Daly sees it as a “real chance”, noting the recognition of the UK Court’s decision in some Canadian lower court decisions. Leonid Sirota thinks the courts would have no business getting involved - and that section 5 of the Constitution Act, 1982’s guarantee that Parliament sit at least once a year is dispositive as a point of law (I agree) - but worries that they might dive in anyway. And Phil Lagassé reminds us this is really a question of ‘honour’ (or norms), not a controversy of convention or law.

There are broader institutional reasons the courts need to stay the hell away from this, well beyond the narrower legal considerations Daly and Sirota explore: in the context of prorogation (and dissolution), there is a constitutionally-designated actor for making decisions - in extreme circumstances - to protect Parliament’s role, and it is not the courts, it is the Governor General.

Many lawyers mistakenly seem to the think the UK Court addressed a real legal issue because it successfully side-stepped the monarch’s role and focused on adjudicating Johnson’s decision to request prorogation. The UK Court applied unwritten principles to assess that decision and deem it legally invalid.

What was a controversial and deeply problematic decision in the UK context would be nothing short of outrageous in the Canadian context. Here Sirota’s point about the relevance of section 5 is important: we have a partially entrenched, written constitution, a structure that prevails over unwritten principles when there are relevant and clear textual provisions.

But I think it’s equally important to recognize the distinctive role the GG plays in this context, and there are fundamental differences between any discretion enjoyed by the GG in our system and the political practice against ‘involving’ the monarch in British politics that might be worth thinking about. Moreover, we also have a different practice around prorogations in Canada. A prorogation of two months is far from unusual, where it would be in the UK.

And while this particular prorogation is unusual - the governing party needing to replace its leader when an election is plainly imminent - it is from a constitutional perspective simply uncontroversial relative to the 2008 affair, because it represents a true government ‘reset’ (i.e. we’ll have a new PM, with a new-look Cabinet, etc.) One of the reasons the 2008 prorogation was controversial wasn’t merely that it delayed a potential confidence vote but that its purpose was solely the delay of that confidence vote, on the heels of Parliament having just returned after an election. The current circumstances requires a prorogation; there was no meaningful alternative in the face of a PM’s resignation as party leader.

For the Canadian courts to get involved in assessing the legal validity of the prorogation is really to threaten that they get involved in an inherently political, partisan contest over when an election should happen. This is entirely a matter of the government-Parliament’s political relationship, with responsible government at its heart, and the umpire of that relationship is not the courts - it is instead, in exceedingly rare circumstances, the Governor General. Parliament will have its say at the end of March, and assuming the opposition parties follow up on their pledge, we’ll likely have an election. There is no problem of democracy here, even if Trudeau might be rightly criticized for not stepping aside earlier.

This was simply not one of those circumstances where the Governor General enjoys discretion. It would have been a more challenging case if Trudeau had decided to try to stay on and also requested a lengthy prorogation, but in the end it is an ‘easy’ case, and if there is a legal challenge, the courts should dismiss it outright.