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Howard Anglin: The courts must stay out of the politics of prorogation

Commentary

Prime Minister Justin Trudeau in the House of Commons on Parliament Hill in Ottawa, Oct. 30, 2024. Sean Kilpatrick/The Canadian Press.

If I could start this article with the gif of Steve Carrell in the U.S. version of The Office shouting “No! God! Please! No! No!” I would. Because that was my response to reading that the Federal Court has decided to hear a challenge to the prime minister’s advice to prorogue Parliament until March 24th, which advice the Governor General accepted on January 6th.

Not only has the Federal Court decided to hear this challenge, it has expedited the case and set a date for the hearing of February 14th. Even if the court were to issue a decision that same day, which would be exceptional, the process of appeal—to the Federal Court of Appeal and then to the Supreme Court of Canada—would have to be even more abruptly truncated to provide a meaningful remedy before March 24th.

The futile procedural posture of this ersatz claim is, however, the least of its problems. Much more important, and much more worrying for those who care about the Canadian Constitution, is that the court has no business hearing the case in the first place. It is the job of judges to resolve questions of law, but here there is no question of law to evaluate, no legal standard to apply, and no legal remedy to provide.

I say this as someone who is on the record saying that the Governor General’s decision to grant such a long prorogation was constitutionally dubious. But even if it were unconstitutional, it cannot be unlawful for the simple reason that there is no law involved. The decisions here were entirely political. First, a decision by the prime minister to advise that Parliament be prorogued, and second a (conventionally constrained) decision by the Governor General to accept that advice.

Prorogation is a prerogative power exercised by the Governor General on the advice of the prime minister. It is a constitutional power with vaguely defined constitutional limits. It is not a legal power. As Oxford University professor Richard Ekins explained in reference to a similar (but distinguishable, see below) case in the United Kingdom, the only relevant legal rule here is “the legal rule that courts should not enforce, or invite argument about, constitutional practice and convention.”

If it comes as a surprise to some people that much of our Constitution, especially most of what we have inherited from the historical British constitution, is made up of non-legal powers and processes, then that is a failing of our school system. Including, apparently, our law schools and whatever continuing legal education is provided to judges. But ignorance of non-law is no more an excuse than ignorance of the law.

In its decision to hear the present case, the Federal Court referenced the recent decision of the U.K. Supreme Court known as “Miller II,” in which the court not only agreed to hear a challenge to a request for prorogation by then-prime minister Boris Johnson but found that the prorogation had been improper because it “had the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions.”

Leaving aside the rather important fact that the U.K. Supreme Court’s decision was itself unconstitutional, the context was a far cry from the situation facing Canada today. The case arose in the run-up to the United Kingdom’s withdrawal from the European Union and central to the court’s reasoning was its opinion that an extended prorogation would deny Parliament—a majority of which had expressed its disapproval of the government’s Brexit plans—the ability to scrutinise the government’s actions effectively during that period.

As the U.K. Supreme Court said, “the circumstances here were…quite exceptional. A fundamental change was due to take place in the Constitution of the United Kingdom on 31st October 2019.” Here, the Federal Court could adduce no remotely comparable considerations. The only reason it cites is the “pressing and urgent” challenge of Donald Trump’s re-election and his threat to impose tariffs on Canadian imports.

Donald Trump may pose many problems for Canada, but none of them are matters of Canadian statutory or constitutional law or questions for the courts. The threat of tariffs is a political challenge, one that the government has the tools to deal with. If it does not, it can recall Parliament and pass new laws to give it more powers or (even better) trigger an election that would return a government with a clear mandate to deal with the threat.

Stepping back from the specifics of this case, the Federal Court’s overreach is part of a dangerous trend of Canadian courts expanding their power to meddle in quintessentially political processes. It is bad enough that, as soon as the Charter gave our judges the power to correct egregious violations of basic rights, they took it as an invitation to start second-guessing contestable questions of social policy on which reasonable people—including judges—disagree.

But now, apparently bored with merely exercising a general supervisory power over public policy, the Federal Court now wants to insinuate itself between the prime minister and the Governor General and referee non-legal political processes. What’s next? Perhaps we can relocate the Supreme Court to a gallery in the House of Commons to act as umpires, offering instantaneous rulings during legislative debates, or reserve them seats in the cabinet room.

If judges want to get into the political ring and have a hand in governing, they should be prepared to play by the political rules of responsible government. That means being accountable the same way other political actors are accountable—either to the public during elections or to removal from office by the people’s representatives. If judges don’t want to find themselves under this kind of active political scrutiny, then they should stay out of politics.

Howard Anglin

Howard Anglin is a doctoral student at Oxford University. He was previously Deputy Chief of Staff to Prime Minister Stephen Harper, Principal Secretary to the Premier of Alberta, Jason Kenney, and a lawyer in New York, London, and Washington, DC.

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