The Federal Court Rules in MacKinnon

Late yesterday evening, the Federal Court released its decision in MacKinnon, the legal challenge to the January 2025 prorogation of Parliament. Chief Justice Crampton dismissed the application. In doing so, however, he broke new ground in ways that will be of wide interest to both constitutional lawyers and academics.

For those who are unfamiliar with the case, the legal challenge was initiated shortly after Prime Minister Justin Trudeau announced in early January that he would resign as head of the Liberal Party once a new leader was selected. He also advised Canadians that he had asked the Governor General to prorogue Parliament until the end of March, and that she had granted the request.

The applicants in MacKinnon argued that the Prime Minister’s request to prorogue was designed to give the Liberal party time to select a new leader. They also argued that Trudeau was facing a vote of no confidence in the House of Commons, and that advising the Governor General to prorogue Parliament under such circumstances was unlawful. Relying on the legal test articulated in the UK Supreme Court’s decision in Miller II (an extraordinary case invalidating a 2019 prorogation of the UK Parliament), they further claimed that the Prime Minister’s actions had “the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.” The situation was particularly acute, they argued, given the tariff threats emanating from the United States.

In its submissions to the Federal Court, the Attorney General of Canada leaned heavily into the argument that the Prime Minister’s advice to prorogue was not justiciable. The AG also argued that the legal test articulated in the UK Supreme Court’s extraordinary decision in Miller II should not be applied in Canada.

After hearing two days of legal arguments from the parties and three interveners, Chief Justice Crampton dismissed the application. He concluded that the applicants had failed to satisfy their persuasive burden:

In particular, the Applicants failed to demonstrate that the Prime Minister exceeded any limits established by the written Constitution or by the unwritten principles they identified. The Applicants also failed to demonstrate that the Prime Minister exceeded any other legal limits.

Two key factual claims grounded the claim. The first was that the prorogation was “part of a stratagem designed specifically to interrupt the business of Parliament and stymie the publicly stated intent of a majority of the House of Commons to bring a motion for non-confidence.” The second was that the purpose of the prorogation had been to benefit the Liberal Party as it sought to select a new leader. Chief Justice Crampton held that the first factual claim was not made out on the evidence, since it was clear that immediately prior to the prorogation, the Liberal Government did in fact enjoy the confidence of House of Commons. With respect to the second, he noted that

Even if those matters were beyond the scope of the authority of the Crown prerogative to prorogue Parliament, there were several other reasons given for the Decision and it is not possible to disentangle the partisan reasons from the other reasons given by the Prime Minister. On their face, those other reasons related either to the business of Parliament or to what appears to be the Prime Minister’s view of the public interest. It is not the Court’s role to question the merits or wisdom of those reasons.

In my view, Chief Justice Crampton’s conclusion regarding confidence is amply supported by the record. He was also correct in my view to conclude that it would be impossible to “disentangle the partisan reasons from the other reasons given by the Prime Minister,” and that it would exceed the court’s role “to question the merit or wisdom of those” highly political reasons.

As regards this prorogation, then, MacKinnon appears at first glance to have been a rather open and shut case. But such a conclusion would be premature. The Federal Court’s decision is momentous because Chief Justice Crampton also concluded (1) that the Federal Court has jurisdiction to review the Prime Minister’s decision to request a prorogation (a matter which was not obvious), (2) that the matter is justiciable, albeit in a limited way, (3) that the standard of review “in assessing whether the Prime Minister exceeded his authority” is correctness, and (4) that the fact that the advice to prorogue Parliament is given in a context largely governed by convention does not preclude judicial review of that advice. In reaching these conclusions, the Federal Court has established a foothold for courts to adjudicate future challenges to prorogation. However, such challenges are extremely unlikely to succeed unless the Prime Minister’s advice represents an egregious breach of constitutional principle. Nor is MacKinnon likely to open the door to judicial review of the full swath of highly discretionary decisions in analogous contexts.

The Role of Miller II

One issue that was being closely watched was the role that Miller II would play in the case. Chief Justice Crampton wisely resisted the wholesale adoption of the Miller II standard, and instead sought to carve out an approach to the review of prime ministerial advice that drew on Canadian law and Canadian realities. At the same time, the decision bears the imprints of Miller II in several respects. First and foremost, the fact that the UK Supreme Court treated prorogation as justiciable in Miller II almost certainly influenced the Chief Justice’s conclusion that Canadian courts have a role to play in supervising the lawfulness of prorogation. After all, prior to Miller II, it was widely believed that political acts of this nature were simply not amenable to judicial review.

Chief Justice Crampton’s analysis of the facts also occurred in the shadow of Miller II. He noted repeatedly that the situation before him differed considerably from that in Miller II. Miller II involved a five-week prorogation of Parliament shortly before the UK’s scheduled departure from the EU. Brexit involved a significant constitutional change – a factor that was not present here. And the Court in Miller II had to contend with the fact that Parliament had clearly expressed its intention to play a role in setting the conditions of Britian’s departure from the EU. In that context, the prorogation clearly had the effect of sidelining Parliament at a critical moment. As Justice Crampton put it, “Neither the effect of the Decision that is currently before me nor the overall circumstances related to it are similarly exceptional.”

Finally, and as I explain further below, the Chief Justice’s general approach to the question of substantive review largely tracks the Court’s reasoning in Miller II. While the Federal Court did not adopt the precise legal standard articulated by the Court, it followed the UK Supreme Court’s approach in concluding that courts have a duty to articulate the legal limits of the Prime Minister’s advice-giving function. In short, the similarities between the two decisions are more significant than they may first appear.

Jurisdiction

As a preliminary matter, Chief Justice Crampton concluded that the Federal Court had jurisdiction to hear the application pursuant to s 18(1)(a) of the Federal Courts Act.

In its submissions, the AG had argued that the Court lacked jurisdiction because the Prime Minister’s advice did not involve the “exercise [of] jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown,” which is required by section 18(1)(a) read in conjunction with the definition of “federal board, commission or other tribunal” found in section 2. The AG argued that the prime minister’s advice-giving function was governed by convention, not law. He also argued that the formal legal power to prorogue Parliament rested with the governor general, not the prime minister. For this reason, the AG submitted, “the Prime Minister’s advice has no independent legal effect and thus is not amenable to judicial review” (para 56).

Chief Justice Crampton rejected this argument. He explained that in past cases, “the advice given by the Prime Minister with respect to the exercise of other types of prerogative powers has been held to constitute the exercise of Crown prerogative power.” Like the Supreme Court in Miller II, in other words, Chief Justice Crampton collapsed the Prime Minister’s advice-giving function and the exercise of the formal legal power to prorogue into a single decision. In my view, this conclusion is defensible on the facts of this case, but only because the prorogation can be regarded as a routine one; that is, as involving a situation in which the Governor General had no discretion to refuse the prorogation. This characterization of the jurisprudence also smooths over some of the clumsier reasoning that appears in the earlier cases. Courts have occasionally wrongly concluded that the advice-giving function is itself an exercise of the prerogative power.

Justiciability

As I noted above, the Federal Court concluded that the question of whether the Prime Minister had “exceeded his authority” was justiciable. The Court grounded its conclusion in this regard primarily in rule of law considerations, citing, among other cases, the Supreme Court’s seminal decision in Roncarelli v Duplessis. The Chief Justice explained that “the courts have a legitimate role to play in ensuring that exercises of executive powers, including Crown prerogative powers, conform with the norms, imperatives and dictates of the Constitution, as well as with the rule of law.” This conclusion did not disrupt the separation of powers because “The constitutional or other legal limits that may circumscribe the prerogative to prorogue Parliament provide the objective legal standards against which to adjudicate the issue...”

At the same time, the Federal Court also made clear that certain aspects of the prorogation, such as whether “an election – and not a prorogation – is the only legitimate and democratic mechanism by which a ‘reset’ of Parliament can be achieved,” whether “a prorogation of almost eleven weeks, until March 24, 2025, amounts to an inherently unreasonable attempt to ‘reset’ ... of Parliament,” and whether “whether Parliament was “paralyzed” in the period leading up to the prorogation,” were not justiciable. These issues, the Chief Justice held, “are essentially matters that go to the “wisdom” or “merits” of the Decision, which are not justiciable issues.”

Unwritten Principles

After considering jurisdiction, justiciability and other preliminary matters, the Chief Justice moved on to an examination of the constitutional constraints on the Prime Minister’s advice to prorogue. He began by considering section 5 of the Charter, which states that “There shall be a sitting of Parliament and of each legislature at least once every twelve months.” The AG had argued in its submissions that section 5 is the only legal limit on the prorogation power. The Chief Justice dismissed the suggestion that “section 5 and the constitutional conventions pertaining to the prerogative power completely “cover the field” with respect to the exercise of the power to prorogue Parliament,” stating as follows:

I fail to see anything purposive about an interpretation that would preclude the application of any unwritten constitutional principles that may otherwise be invoked to protect the Canadian public from an exercise of the prerogative power beyond its limits...

To the extent that recourse to unwritten constitutional principles may be needed to address other types of exceptional situations that may fall within a gap in the written Constitution, section 5 would not preclude such recourse.

The Chief Justice then reviewed the major unwritten constitutional principles raised by the parties and interveners: parliamentary sovereignty, democracy, the rule of law and the separation of powers. Regarding parliamentary accountability, the other principle that the applicants had pleaded based on Miller II, he concluded that it was not a recognized unwritten principle in Canada, and that responsible government, its closest analog, was “a non-legal principle of convention.” While this phrase is confusing, I believe the Chief Justice was attempting to explain that responsible government is a political principle, and that recognizing it as a legal principle could have the effect of bringing the political constitution under judicial control.

The Court was very quick to limit expectations about when and how these principles might be invoked to invalidate a prorogation, given the Supreme Court’s recent decision in City of Toronto. The Chief Justice explained that, per City of Toronto, principles can be used to interpret the terms of the written constitution, or to “fill gaps” therein. He also acknowledged that their full range of uses in constraining executive action remain unclear, since City of Toronto dealt specifically with challenges to legislation. However, he posited that

... if the use of unwritten constitutional principles to invalidate executive action may extend beyond the two limited roles identified in Toronto (City), the margin for their independent force would nonetheless be narrow. In order to protect legal certainty and predictability in the exercise of judicial review, the independent force of unwritten constitutional principles would at least be restricted to what arises by necessary implication from the Constitution’s text and architecture...

The applicants in this case had “failed to demonstrate that their proposed use of unwritten constitutional principles to independently invalidate the Decision falls within either of the two limited roles articulated therein. The same” was true “if those teachings do not apply the review of executive action. Once again, the Applicants ... failed to argue or demonstrate that the Constitution’s text and architecture necessarily imply that those unwritten constitutional principles set limits on the Prime Minister’s authority to advise the prorogation of Parliament in the ways they allege.”

I note that Chief Justice Crampton’s analysis of the governing unwritten principles is underdetermined. This may be deliberate. I suggested in an early post that unwritten constitutional principles are routinely underenforced, and that this is a good thing. These principles, in their full legal form, are necessarily held in reserve for exceptional circumstances. Those circumstances were simply not present here.

On my reading, the decision does not preclude resort to these principles by courts in a true emergency, but it does seem to foreclose routine legal challenges to prorogation. The narrowness of the opening comes through particularly clearly in Chief Justice Crampton’s comparison of UK and Canadian constitutional realities:

Regarding the UK’s constitutional framework, the principal difference is that the UK does not have a written constitution. As a result, the UK’s system is one of Parliamentary supremacy, in contrast to Canada’s system of constitutional supremacy: Power at para 49; Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48 [Securities Reference] at paras 54–58. This important difference appears to have provided more scope for the UKSC to draw upon unwritten constitutional principles than would be possible under the Canadian jurisprudence.

I want to acknowledge the difficult task facing a judge who is seeking to simultaneously ensure judicial accountability for unlawful acts while also preserving the separation of powers, a point that the Chief Justice makes repeatedly throughout his judgment. Doing so involves judicial craft, and Chief Justice Crampton threaded the needle here with considerable skill. While he has opened the door to a limited form of judicial review of prorogation in exceptional circumstances, politics and convention will largely continue to govern the Prime Minister's advice on prorogation.

Conclusion

I do have some lingering questions about what all of this means for the role of the Governor General in our constitutional order. This decision may change the strategic considerations facing a governor general when she is deciding whether to grant a prorogation. Until yesterday, it was widely believed that the buck stopped at the governor general when it came to resisting unconstitutional requests to prorogue Parliament. With MacKinnon, those dynamics have now shifted. Will a governor general, faced with a questionable request for prorogation, now be more inclined to simply grant it, knowing that the courts, rather than the governor general, will serve as the ultimate backstop? It is possible. But it is also possible that we now have two, rather than one, brakes on the most egregious and opportunistic exercises of the power to advise on prorogation. It is obviously too soon to tell.

* I am grateful to Peter Oliver for a discussion of some of these issues.