Power of prorogation ‘not absolute,’ challengers tell Federal Court

Two Nova Scotia men have taken their fight against the suspension of Parliament to the Federal Court, arguing that there must be a “reasonable justification” for such a drastic measure. Federal lawyers, on the other hand, maintain that Prime Minister Justin Trudeau’s decision to prorogue Parliament is not subject to judicial review and is ultimately up to the voters to judge.

The case, being heard by Federal Court Chief Justice Paul Crampton over a two-day period, involves David MacKinnon of Amherst, N.S., and Aris Lavranos of Halifax, who are challenging Trudeau’s advice to Governor General Mary Simon to prorogue Parliament until March 24. They are seeking an order to set aside this decision and a declaration that Parliament has not been prorogued.

Trudeau’s emotional announcement of his intention to resign as prime minister and the subsequent prorogation of Parliament have sparked a legal battle over the limits of the prime minister’s power. MacKinnon and Lavranos argue that proroguing Parliament in the face of urgent threats, such as the U.S. tariff threats, denies Parliament the ability to fulfill its constitutional duties.

They contend that while the prime minister does have the authority to advise prorogation, it must be done with reasonable justification and cannot be used to bypass Parliament. They point to Section 5 of the Charter of Rights and Freedoms, which requires Parliament to sit at least once every 12 months, as evidence that the prime minister’s discretion is not absolute.

The applicants argue that unwritten constitutional principles dictate that Parliament, not the executive branch, should be supreme, and that the government must remain accountable to Parliament to retain its authority to govern.

James Manson, representing the applicants, raised questions about the scope of the prime minister’s power to prorogue Parliament and whether there should be limits on this authority. He emphasized the need for the court to establish what constitutes reasonable justification for prorogation.

In response, the government is requesting that the case be dismissed, arguing that the current prorogation aligns with constitutional requirements and that any intervention by the court would be unwarranted. They assert that the prime minister’s advice to the Governor General is based on established constitutional conventions and is not subject to court review.

The outcome of this legal battle could have significant implications for the balance of power between the executive and legislative branches of government in Canada. As the Federal Court considers these arguments, the future of Parliament and the government’s accountability to the people hang in the balance.