Prorogation, prerogative, and judicial review

The Federal Court finds that exercises of the prorogation prerogative are justiciable.

The Federal Court has dismissed the challenge to Prime Minister Justin Trudeau’s prorogation of Canada’s Parliament. I was pleasantly surprised. As a general rule, I assume the courts will do the opposite of what I think they should when it comes to the Westminster system in Canada. I look backward when I study the Westminster system in Canada (history and evolution), whereas Canadian courts usually look forward (principles and values). Chief Justice Paul Crampton’s ruling offers us a mix of both here. His presentations of the prerogative, constitutional convention, and the separation of powers are fine overall. His findings on the justiciability of the application, however, will irk traditionalists who disagree that exercises of the Crown’s reserve powers should be reviewable by the courts.

Since every constitutional law prof and their dog will have something to say about this case in the coming days and weeks, I’ll leave a careful parsing of the judgment to my betters. I’ll focus instead on how Crampton discusses the exercise and reviewability of the relevant authority: the Governor General’s prorogation of Parliament on the advice of the Prime Minister.

Let’s start with the prerogative. Crampton defines it in two ways (para 85). First, citing Khadr, he describes the prerogative as “a limited source of non-statutory administrative power accorded by the common law to the Crown” (para 85). This isn’t a great description. Notably, the prerogative can be a fairly expansive power dealing with matters of state. Similarly, it’s odd to cast the prorogation and dissolution of Parliament as administrative powers. And as Robert Craig argues, the prerogative wasn’t historically accorded by the common law, but recognized by it. Crampton then cites a much better definition from Stratas in Hupacasath: “They are the Crown’s remaining inherent or historical powers, as they have been shaped by the common law.” I hope this definition is cited more often, since it captures what the prerogative actually is (the original source of all governing authority) and how the courts have interacted with it (defining its contours and limitations).

When it comes to exercises of the prerogative, Crampton focuses on what Janet McLean has termed the real powers of real people. Yes, the prerogative to prorogue Parliament is legally exercised by the Governor General. Yet, by constitutional convention, the Governor General exercises that prerogative on the binding advice of the Prime Minister. The political rules of the constitution ensure that prorogation is the Prime Minister’s decision in reality, not the Crown’s: “The Prime Minister’s advice is in fact a critical lynchpin of the exercise of the Crown’s prerogative to prorogue Parliament” (para 68).[i]

Interestingly for those who argue that the Governor General retains the discretion to refuse prime ministerial advice to prorogue, Crampton accepts that as a hypothetical (para 69), but suggests that we have no evidence of that when the Prime Minister formally commands the confidence of the House. As he notes in paragraph 67, citing the affidavit of Don Booth of the Privy Council Office:

By convention and under the principle of responsible government, the Governor General acts on the advice of a Prime Minister who enjoys the confidence of the House. As the Respondent itself recognizes, there are no known instances where a Governor General of Canada has ever refused advice by the Prime Minister to prorogue the House. Likewise, there is no evidence before the Court that a Governor General of Canada has ever prorogued Parliament without first being advised to do so by the Prime Minister. Moreover, according to an affidavit filed by Donald Booth on behalf of the Respondent, “the practice and procedure relating to prorogation is within the Prime Minister’s prerogative,” and the length of time for which Parliament may be prorogued “is entirely within the discretion of the Prime Minister.”

As a result, Crampton finds that the case hinges on whether the Prime Minister exceeded his authority to prorogue Parliament (para 78).

Crampton’s decision to focus on the substance of how the prerogative is exercised (through prime ministerial advice by convention), rather than the legal form of the exercise (by the Governor General under Letters Patent) will annoy the conservatively minded. Using constitutional convention as a means of reviewing prorogation seems to run counter to the idea that convention isn’t law and that the ‘reserve powers’ (prerogatives tied to the Crown’s head of state functions) shouldn’t be justiciable. I sympathize with this critique. I think concerns about the political rules of the constitution should be addressed by political actors, not the courts. I also find it objectionable that the reserve powers should be subject to review by the courts, particularly since case law suggests that they form part of the offices of the Queen, Governor General, and Lieutenant Governors. Indeed, this would seem to go against the common law tenet that the Crown ‘can do no wrong’ and the principle that one part of the constitution shouldn’t invalidate another.

I recognize, though, that these notions are relics of the past. Previously, exercises of what we now term ‘executive’ prerogatives, i.e. those where the Crown isn’t formally advised and has no discretion left, were considered non-justiciable. The courts eventually did away with that notion, a point that Crampton discusses over the course of several paragraphs (97-106). In a post-Miller II world, exercises of the reserve powers will be increasingly seen as justiciable. Following Robert Blackburn and the underlying logic of this ruling, this may be because certain reserve powers are increasingly interpreted as executive prerogatives where the Crown has very limited, if any, discretion. Alternatively, it may be because exercises of all power and authority, regardless of source or form, will be subject to review by the courts as a function of the rule of law and the separation of powers. This would align with the Supreme Court’s decision to pierce the shield of parliamentary privilege in Power. Crampton alludes to both rationales (paras 74, 76, 111). Either way, the justiciability of the prerogative, including some reserve powers, is here to stay. We may not like it, but it is what it is.

A good deal of the judgement then deals with various claims about whether the Prime Minister acted beyond the limits of his legal or constitutional authority (para 112). These aspects of the judgment turn on unwritten constitutional principles and matters of administrative law. I have no doubt that my colleagues will have a lot to say here, but I’ll conclude by focusing on what Crampton has to say about responsible government and the confidence convention.

This judgment highlights what a mess the courts have made of responsible government and its place in the constitution. Crampton reviews the ways in which responsible government has been treated as either an unwritten principle or a set of conventions. These sections are hard to read if the history and conventions of responsible government are your thing. He concludes that “responsible government is contemplated by the democratic principle” (para 201). This might have been an opening for a discussion of responsible government as a part of Canada’s political constitution, but the analysis is squarely focused on legal constitutionalism.

When Crampton discusses responsible government, he boils it down to “(1) the responsibility of individual ministers and their respective departments for their activities; and (2) the collective responsibility and accountability of the Executive to the legislative assembly, which includes the Prime Minister maintaining the confidence of the House of Common” (para 198). In a confusing sentence that follows, Crampton dismisses responsible government as a legal check on the Prime Minister’s advice to the Governor General: “there appears to be little scope for the concept of responsible government itself to set legally enforceable limits on the Prime Minister’s authority to advise the Governor General to prorogue Parliament” (para 201). Political constitutionalists will be rubbing their temples raw at this point. While Crampton is making a point about responsible government as an unwritten principle, the role of the political constitution is, again, noticeably absent. From a political constitutional perspective, responsible government empowers the Prime Minister to exercise the Crown’s power while rendering the Prime Minister accountable to Parliament for those exercises. The discussion of responsible government as an unwritten principle and legal check on the Prime Minister reads bizarrely, as a result. In fairness to Crampton, however, he had to deal with the arguments that were presented to him.

Crampton later addresses whether Prime Minister Trudeau had effectively lost the confidence of the Commons when he advised prorogation. This is a noteworthy discussion since commentators argued that the Governor General should not have accepted Trudeau’s advice to prorogue because opposition leaders had publicly declared an intent to vote no confidence. Crampton addresses this issue through the prism of the applicants’ charge that the Prime Minister prorogued to avoid a vote of no confidence, and what evidence the court can rely on when weighing this assertion. Nonetheless, his discussion serves as a good proxy for what the Governor General considers when determining whether a Prime Minister has confidence. Crampton notes that the government had won confidence votes up to the prorogation: “the Respondent’s uncontested evidence is that the House expressed its confidence in the government on three occasions soon before the House adjourned on December 17, 2024 for its winter recess” (para 234). He then concludes that these votes are the only reliable evidence as to whether the government held confidence before the Prime Minister advised prorogation (para 235):

I can understand the Applicants’ view that the situation changed on December 20, 2024, when Mr. Jagmeet Singh, the leader of the NDP, announced in an open letter to Canadians that his party would “put forward a clear motion of non-confidence in the next sitting of the House of Commons.” However, as stated above, that is not reliable evidence of the House’s confidence. Furthermore, it is far from clear when any motion of non-confidence likely would have been placed before the House for a vote, had the House not been prorogued.

The Governor General and her advisors would have come to the same conclusion. What matters is how the Commons last voted, not what opposition leaders say in public.

Just when I was ready to pack it in, Crampton then dropped a bomb: “Given all of the foregoing, the issue of whether it would be beyond the Prime Minister’s authority to exercise the prorogation power for the purpose of avoiding a certain confidence vote is best left for another day” (para 242). Well, then.

Coupled with his overarching finding that prime ministerial advice to prorogue is justiciable, this one-sentence paragraph tells us that we should expect many subsequent prorogations to be challenged in court. Duff Conacher’s Democracy Watch has tried to challenge several dissolutions that were requested prior to fixed election dates set out in legislation. He keeps losing because the Crown’s power to dissolve is left intact by these laws, but he doesn’t let up. Democracy Watch may start doing the same with prorogation. They were an applicant in this case, after all.

That said, I don’t anticipate future challenges succeeding where this one failed. This ruling is a good example of what Thomas Poole calls the prerogative ‘two-step’: the courts find that an exercise of the prerogative is reviewable but then defer to the executive. The two Miller cases represented a notable exception to that habit in the United Kingdom. This judgment suggests that the two-step remains attractive in Canada. Prorogations are now reviewable, but that doesn’t mean any of them will be invalidated. Returning to my general rule, though, I can’t discount the possibility that the courts may go the other way if a prorogation is egregious enough.

---

[i] As an aside, this is a good example of why constitutional convention shouldn’t be cast as a form of constitutional morality. What’s ethical about how Canadian prime ministers have prorogued in recent decades?