Power to call for parliamentary pause 'not absolute,' challengers tell Federal Court

Prime Minister Justin Trudeau rises during question period on Wednesday, November 8, 2023 in Ottawa. THE CANADIAN PRESS/Adrian Wyld

OTTAWA — Two Nova Scotia men are asking the Federal Court to declare the current suspension of Parliament illegal because there must be a “reasonable justification” for hitting the pause button.

Federal lawyers contend in response that Prime Minister Justin Trudeau’s advice to the Governor General to prorogue Parliament is not subject to review by the courts, and that the ultimate judgment rests with the voting public.

Federal Court Chief Justice Paul Crampton is listening to arguments from both sides of the dispute during a two day-hearing that began Thursday.

In their application filed last month, David MacKinnon of Amherst, N.S., and Aris Lavranos of Halifax seek an order setting aside Trudeau’s decision to advise Gov. Gen. Mary Simon to exercise her power to prorogue Parliament until March 24.

MacKinnon and Lavranos also request a declaration that this session of Parliament has not been prorogued.

On Jan. 6, Trudeau fought back tears as he announced plans to resign as prime minister once a new Liberal leader is chosen.

Trudeau also said Simon had agreed to his request to prorogue Parliament, wiping the legislative slate clean and pausing the business of the House of Commons and Senate.

He said prorogation would allow for a reset of Parliament, which had been largely paralyzed for months as the Conservatives pressed the Liberals to hand over documents related to misspending on a green-tech fund.

MacKinnon and Lavranos asked the court to expedite a hearing of their application for judicial review, citing the urgent U.S. threat of steep tariffs on goods from Canada.

They maintain that Trudeau’s decision effectively denies Parliament the ability to carry out its constitutional functions in the “exceptional and compelling” circumstances posed by the tariff threats.

“While a prime minister does have the power to advise the Governor General to prorogue Parliament, such power cannot be used in the absence of reasonable justification,” they say in their written submission to the court.

“It cannot be used to enable the government to ‘ride herd’ over Parliament. That, quite simply, would be tyranny, which must be firmly rejected by this Court.”

Section 5 of the Charter of Rights and Freedoms requires that Parliament sit at least once every 12 months.

MacKinnon and Lavranos disagree with the notion that this is the only limit on prorogation powers, and argue in their application that the very existence of Section 5 “demonstrates that a prime minister’s discretion to advise prorogation is not absolute.”

“Prorogation is not universally available at his or her slightest whim,” they add.

The pair argue the section provides no guidance on when, and under what circumstances, a prorogation can lawfully begin. “That is an altogether different question,” they write.

MacKinnon and Lavranos also argue that unwritten constitutional principles indicate Parliament, not the executive, is supreme, and that to maintain authority to govern, the government must remain accountable to -- and retain the confidence of -- Parliament.

James Manson, a lawyer for the applicants, told Crampton on Thursday that it’s up to the court to establish the scope of reasonable justification for requesting prorogation.

“What would be offside? Is there really to be no limit?” Manson asked. “Do we really want a prime minister to have that much power to do whatever she or he wants, whenever, for however long they want?”

In an affidavit filed with the court, MacKinnon, who has worked extensively as a lawyer, says there is no one in Parliament able to pass legislation or otherwise conduct business to assist the government in the event urgent legislative steps need to be taken.

“In particular, I am concerned that Parliament is unable to react to or otherwise deal with the looming, unprecedented economic and political threat that Canada faces from the U.S., as announced and repeatedly stated by President Donald Trump,” MacKinnon writes.

In its written submission to the court, the government asks that the case be dismissed.

Federal lawyers say the basis for the current prorogation and its duration are entirely consistent with the exercise of the power in Canada and that it has met the only constitutional requirement -- that Parliament sit at least once every 12 months.

“During the brief period of the prorogation, only five scheduled sitting weeks of the House of Commons will have been interrupted and the executive branch of government has and will continue to function effectively,” the federal submission says.

“Any intervention by a court would be contrary to binding authority and unwarranted.”

The prime minister’s advice to the Governor General is given in keeping with a well-established constitutional convention and is not reviewable by the court, the federal submission adds.

“The government will be accountable to the House of Commons and, ultimately, the electorate for the decision to prorogue.”

This report by The Canadian Press was first published Feb. 13, 2025.

Jim Bronskill, The Canadian Press