The West Block of the Parliament Buildings in Ottawa, on Jan. 7.Patrick Doyle/Reuters
The Federal Court on Thursday and Friday will hear a novel legal challenge to Prime Minister Justin Trudeau’s decision to prorogue Parliament, as opponents argue the move deprived MPs of the opportunity to respond to tariffs, both imposed and threatened by U.S. President Donald Trump.
The Calgary-based Justice Centre for Constitutional Freedoms, which has previously supported trucker convoy protest leaders in court, argues the prorogation decision was unlawful. It is trying to convince the Federal Court to push Parliament back to work earlier than Mr. Trudeau’s set date of March 24, which is after the Liberal Party chooses a new leader and the country has a new prime minister.
In a court filing, the Justice Centre’s legal team argued that the Prime Minister “has not provided a reasonable justification” to prorogue Parliament.
Mr. Trudeau in early January revealed his planned resignation and also announced his decision to prorogue Parliament. He cited legislative deadlock and a need to “reset.”
Similar to prorogations in Canada’s political past, opponents of Mr. Trudeau’s move described it as ducking both parliamentary accountability and a potential defeat in a vote of non-confidence.
It is unclear whether the Federal Court challenge will produce any real-world impact this winter. Legal wrangling, including likely appeals to the higher courts after a Federal Court decision, could well extend past March 24.
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In the federal government’s legal filing, it argued the case shouldn’t be in the courts at all, asserting that the Prime Minister’s advice to the Governor-General to prorogue Parliament is “not reviewable” by the court.
The legal challenge, which some experts suggest is unlikely to succeed, hinges on a related 2019 ruling in Britain. That country’s Supreme Court, in a surprise and controversial decision, cut short a prorogation of the British Parliament in the weeks ahead of the country’s official exit from the European Union.
The challengers to Mr. Trudeau’s decision aim to replicate the British legal ruling to limit the power of prorogation in Canada. The federal government, among its arguments, said the 2019 British ruling has “no application in Canada.”
The Federal Court hearing stretches over two days in Ottawa, with both sides provided several hours to present their arguments, along with three intervenors for and against various positions. Lawyers involved in the case suggest an initial ruling could land by late February.
Federal Court Chief Justice Paul Crampton, a veteran who has served in his role since 2011, has shown a willingness to rush the case forward. In a mid-January decision to expedite a hearing, he noted the Federal Court has “consistently refused” to speed complex constitutional cases through the justice system but underlined the “urgency of the matter” and the “public interest in determining the serious issues raised” in the legal challenge.
The Federal Court will consider a number of issues, including the fundamental question of whether it has jurisdiction to make any sort of declaration on the questions at hand.
Should Chief Justice Crampton determine the court can have a say – as the British top court did – there will still be another hurdle: assessing whether Mr. Trudeau’s reasons to prorogue Parliament were reasonable.
James Manson, the lawyer leading the Justice Centre’s challenge, said in an interview the case is a “clear opportunity to set out guardrails on a prime minister’s power to prorogue Parliament – if any.”
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He said the challenge is not a politically motivated legal assault on the imperilled Liberal minority government. The controversial 2008 prorogation of Parliament by Conservative prime minister Stephen Harper was also troubling, he said.
“This is a constitutional lawsuit,” said Mr. Manson. “All political parties, no matter who they are, have to play by the rules.”
Paul Daly, a law professor at the University of Ottawa, has written that it appears Mr. Trudeau has in fact played by the rules. Prof. Daly this year published several detailed commentaries on the legal questions around Mr. Trudeau’s prorogation and the 2019 British court ruling.
He noted that while the British ruling is not binding on Canada’s courts, advisers to the Prime Minister seem to have taken keen note of its details. The Liberals’ political opponents may not like Mr. Trudeau’s explanation for prorogation but Prof. Daly suggested it would likely be sufficient in the court’s eyes, should the court make an assessment of the Prime Minister’s stated rationale.
“The challenge is unlikely to be successful,” Prof. Daly wrote in early February.
One of the intervenors in the case is arguing against judicial intervention.
In a court filing, the University of Ottawa Public Law Centre’s Constitutional Law Initiative calls the legal challenge to limit propagative powers a request for the court to “insert itself into the political life of the country in a way that courts throughout Canadian history have refused to do.”