Dissecting the Federal Court's decision on prorogation

The Federal Court has upheld the constitutionality of the recent prorogation of Parliament. That this outcome was ever in doubt shows the mess the courts have made of the unwritten components of Canada’s constitution. Colleague Phil Lagassé already has a post out, and warns that certain passages of the reasons will make constitutional traditionalists rub their temples. With this post I want to dig into the Court’s analysis and try not to give myself - or you - a headache.

Readers will recall that the Prime Minister requested a prorogation - a parliamentary ‘reset’ during which Parliament does not sit - upon his announcement that he will be resigning and the Liberal Party will be replacing him as leader. He explained that Parliament had grown dysfunctional (true fact), and that in this age of calamity a pause was necessary so that the government could reset its agenda. As I wrote at the time, although the circumstances of the prorogation were unusual in this regard, nothing about it breached constitutional propriety.

Fortunately, the Federal Court has now agreed. But although the Court dismissed the constitutional challenge, there are thorny aspects of its decision that warrant closer inspection.

The first problem with the Court’s ruling concerns justiciability. To be clear, that the Court found that prorogation requests are justiciable was not at all surprising. The courts have decided - essentially - that there is nothing they can’t pronounce upon, so long as something kinda sounds like a possible ‘legal’ issue. But there are several reasons why it is not only plausible but reasonable that courts should have no business reviewing prorogation requests.

I want to explore a few important premises and address how the Federal Court’s judgment assessed them:

1 - There is already a constitutional actor whose role serves to protect constitutional principles at stake in the prorogation context: the Governor General (or, at the provincial level, the lieutenant governor)

Following the UK’s Miller 2 judgment, the Court focuses its analysis not on the Governor General’s decision (which, being rooted in constitutional convention should not be reviewable regardless) but on the Prime Minister’s advice. The Court notes that “If the Prime Minister exceeded the constitutional or other legal limits of his authority in providing that advice, the elected representatives of the people would unlawfully be prevented from performing their constitutional functions.” This, in the Court’s view, gives the Court jurisdiction to review the decision (at para 68).

This belies the fact that the Governor General serves the guardian role in this particular context, including in preserving relevant constitutional principles like parliamentary sovereignty, which are rooted in history and politics, and merely affirmed by the common law. In other words, conventions and unwritten principles, with few exceptions, should be properly viewed as part of the ‘political constitution’ as distinct from the ‘legal constitution’.

The Court addresses the Governor General’s role in the briefest of ways, noting that a Governor General has never refused a prorogation request, and thus the “possibility that the Governor General might one day refuse” one is “not a sufficient basis upon which to immunize that advice from review by the courts.” (at para. 69). This is a weak basis upon which to dismiss the Governor General’s role as the relevant constitutional actor when it comes to granting prorogations. No Governor General has refused a prorogation precisely because no prorogation has plainly violated constitutional principle. The most controversial prorogation, which came in 2008 under Prime Minister Stephen Harper, actually established a very useful way of understanding the discretion enjoyed by the Governor General to protect Parliament’s role given that the approval came only after a prolonged discussion and conditions were met, including those relating to the duration of the prorogation and ensuring that a confidence vote would be held upon the resumption of Parliament.

2 - Misapprehending the unwritten constitution as primarily legal instead of primarily political expands the role of courts beyond its natural limits.

The Court takes a broad view in interpreting its jurisdiction in part on the basis that enabling “this Court to review the Prime Minister’s advice to the Governor General to prorogue Parliament would also be consistent with the evolving view that ‘all holders of public power must be accountable for this exercises of power, a principle that rests at the heart of our democratic governance and the rule of law’.” (citing Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72) at para. 76.

Considering the nature of Canada’s unwritten constitution, this presents a shockingly narrow and exclusively legal understanding of accountability in the context of “democratic governance.” Our constitution is designed, in fact, explicitly to ensure the political accountability of office holders, especially of governments. This is the lynchpin of responsible government and the confidence convention, which regulates the exercise of power on political rather than legal terms.

The courts have a crucial role to play in ensuring that the government’s policies, and Parliament’s laws, do not violate the entrenched provisions of the Constitution. But by sailing into the realm of convention and unwritten principle to review what are inherently political rules governing the relationships between the executive and legislature, which include the long-established conventions governing government formation, prorogation and dissolution (and thus the timing of elections), courts become intimately involved in partisan and electoral politics. This is exceedingly dangerous territory.

Had the Court determined that the current prorogation was unconstitutional, it would have, in effect, precipitated an election, to the obvious detriment of a governing party in the midst of selecting a new leader. While this would have been a legitimacy-damaging outcome (for the courts) in this particular case, it is also a broader red flag against the very idea that prorogation requests should be considered justiciable generally.

3 - some prerogative powers of the executive are reviewable, according to established caselaw, but generally in relation to entrenched provisions of the Constitution of Canada or to relevant statutes

The Court cites caselaw in relation to the judicial supervision of prerogative powers, but these cases pertain to questions about the limits that might be imposed on prerogative powers, and include constitutional limits like Charter rights (see for example, Operation Dismantle v. The Queen [1985]) or statutory limits that might displace or limit specific prerogatives (see, for example, Democracy Watch v. New Brunswick [2022]).

The Federal Court here seeks to extend judicial supervision not to a concrete rule of law issue but to the political accountability mechanisms provided for by convention and the broader unwritten constitution. (This is why the Court is forced to cite Roncarelli v Duplessis [1959], which did not involve a prerogative power per se, at para. 107).

As I wrote at the beginning of this piece, the Court’s decision on justiciability is not remotely surprising. But it is important to underline that the jurisprudence has set up courts to engage on matters in ways that have the potential to vitiate the political constitution and make a confused mess of the unwritten components of the constitution, as numerous cases in the past year do, including Supreme Court decisions in Power and Ontario Information Commissioner, and a Federal Court decision in Hameed v. Canada, to give examples just from 2024.

4 - Miller 2 was a dubious judgment and would be disastrous if applied in Canada

Turning now to the assessment of whether the Prime Minister somehow exceeded his powers when he requested the prorogation, the UK Supreme Court’s opinion in Miller II offers a temptation no less great than the apple Eve presented Adam. It is fortunate the Federal Court did not bite.

Nonetheless, the Court sails into an assessment of the Miller II ‘framework’, which calls for an assessment of whether a prorogation ‘frustrates or prevents’ Parliament’s ability to perform its functions, including supervision of the executive, whether the Prime Minister offers a reasonable justification, and whether the consequences are sufficiently serious to require the court’s intervention. Fortunately, the Court found that Miller II is not binding on Canada and that our constitutional framework differs in important respects, one of which is the existence of our partially written constitution. That the Canadian constitution features entrenched provisions is often overlooked, even in scholarship importing British debates about common law constitutionalism to the Canadian context.

5 - The courts are overly enthusiastic to incorporate unwritten principles into the analysis

The Court makes quick and effective work in dismissing the idea that the prorogation somehow violated the voting rights section of the Charter (s. 3), but dived into unwritten principles when confronted with the only relevant constitutional provision at stake.

Importantly, the Constitution of Canada contains no express limits on the use of prorogation. An indirect limit, contained in s. 5 of the Charter, requires Parliament to sit once every 12 months. This rule should be seen as requiring the summoning of a Parliament during that time, and would mean any prorogation that sidelined Parliament for any longer than that period would be unconstitutional in a straightforward legal sense. Assuming a Governor General ever agreed to such a request, enforcing this provision would not necessitate judicial review of a prorogation request so much as the simple enforcement of an entrenched textual provision of the Charter through a declaration requiring the summoning of Parliament before the constitutionally-mandated date. And this is at the outer bound of an extreme hypothetical.

Confronted with arguments from the government that section 5, coupled with the relevant constitutional conventions, “cover the field” with respect to the exercise of the power to prorogue Parliament (at para. 183), the Court balks, and suggests that an analysis of unwritten principles is necessary.

6 - The conflation of convention and unwritten constitutional principle confuses our understanding of the unwritten constitution and encourages unnecessary/inappropriate judicial review.

Following from demands by the Applicants to consider unwritten principles, the Court cites “parliamentary sovereignty, parliamentary accountability (responsible government), the rule of law and the separation of powers.” One of these is not like the others. By treating responsible government as a principle and not convention, the Applicants seek involving the courts in the regulation of the political relationships at the heart of our system of government.

The Court recognizes that conventions are neither legal nor judicially enforceable (paras. 193-4), and states that “[t]he line between the enforceable legal principles and unenforceable political conventions of the Constitution may in some cases be difficult to discern” (para. 195) but unfortunately does not conclude for this reason that it might be better for courts - where possible - to avoid treading that line entirely.

Frustratingly, the Court acknowledges that “parliamentary accountability” “does not appear to have been recognized as a principle of the Canadian Constitution. However, the Applicants raise ‘responsible government’ as the Canadian equivalent of this concept.”

This is one of the most ridiculous statements (by the Applicants) on Canadian constitutionalism ever imagined. The reason ‘parliamentary accountability’ is not a legal principle is precisely because it is a wholly political concept. And responsible government, as the lynchpin convention of the system, has been and will hopefully continue to be regulated entirely by politics. These concepts (parliamentary accountability and responsible government) are simply not ‘unwritten constitutional principles’ in the sense of being part of the legal constitution, the Constitution of Canada.

It was with great relief to see the Court effectively arrive at a similar conclusion, although it muddies the waters by invoking the idea that responsible government might be a “principle of Canada’s system of government” or a “non-legal principle of convention” (which is a ludicrous muddling of two distinct concepts).

Unfortunately, the Court then imports the discussion of responsible government into its analysis of the democracy principle (if there was ever an unwritten principle that is wholly political, rather than legal, it is democracy).

Ameliorating much of this discussion was the Court’s recognition of the important ways the Supreme Court limited the use of unwritten principles in Toronto v. Ontario, recognizing their “highly abstract” and “nebulous” nature (at para. 223) and emphasizing their roles as interpretative aids or as structural doctrines to ‘fill gaps’ in the constitutional text (paras. 218-222).

The Court proceeds from this point to dismiss the Applicants’ arguments about the Prime Ministers motives and justifications for the prorogation. Here, recognition that conventions do much of the important work in regulating advice the Prime Minister gives to the Governor General was significant, as the Court dismissed arguments that “legal” obligations were implicated (for ex., see para. 245). Overall, the Court suggests that “the Applicants have not explained how the unwritten constitutional principles they advance dovetail with and fit within the limited permissible role for such principles described in the jurisprudence.” (para. 249).

In sum, the Court reached the obviously correct decision, but decisions like these continue to be vexed by a confused and overly complicated jurisprudence on unwritten constitutionalism, one that is encouraged by litigants who make arguments premised on a misunderstanding of the constitution, but also a judicial willingness to assume authority over the political aspects of the constitution that the courts have no business in.