On 6 January, the Governor General of Canada granted a request for a two-month prorogation of parliament. A legal challenge was soon launched to have it declared unlawful. Steven Chaplin argues that the prorogation is perfectly proper, that it is highly unlikely that a Canadian court will rule it to be unlawful, and that comparisons with the Boris Johnson prorogation request in 2019 and the subsequent ‘Miller 2’ case do not hold up.  

On 6 January, Canadian Prime Minister Justin Trudeau requested that the Governor General prorogue parliament until 25 March. The Governor General granted the request.  

Despite prorogations in Canada having been granted as a legitimate means to address significant changes to government, some academics, journalists, lobbyists and politicians have suggested that the present request is ‘unconstitutional’ and should be set aside on judicial review. They base their views on the Supreme Court of the United Kingdom’s decision in Miller v Prime Minister [2019] UKSC 41 (commonly known as Miller 2), which voided a request for prorogation, and therefore makes any request subject to judicial review for reasonableness. In all cases, they argue the government must advance a reasonable justification.  

It is therefore not surprising that an application was filed in the Federal Court of Canada to judicially review the request for prorogation. The applicants argue that the House needs to be sitting to address the pending US tariffs, or to vote confidence in the government. They further argue that the reasons for the request are merely political and therefore unreasonable. It is likely that the application will, and should, fail.  

The application fails to recognise both the acceptable and useful purposes of prorogation, and the unique and extraordinary circumstances of the Miller 2 case that caused the courts to intervene where they ordinarily would not. 

Miller 2: a constitutional ‘one off’ 

Prior to the Miller decision many, including the English courts, believed that prorogation was not susceptible to judicial review. If the Canadian courts adopt Miller 2 as precedent, they should not only take jurisdiction but also be guided by the UK court’s approach to any such application.  

In Miller 2 the judges set out a rather high bar for success indicating that they were dealing with a prorogation request that ‘arises in circumstances which have never arisen before and are unlikely ever to arise again’. The deadline for the UK leaving the EU, with or without an agreement, was imminent. The Court found that the reason for the request was not reasonable, given that the effect of the prorogation would be to prevent parliament from continuing to be engaged in addressing a major constitutional issue facing the country, an involvement which the Supreme Court had effectively required in its earlier decision in Miller 1 [2017] UKSC 5. In these extraordinary circumstances the court indicated that it was required to step in to ensure parliamentary sovereignty in the process of determining constitutional matters. 

The resulting test can be seen as having two parts. First the applicants must demonstrate that the House of Commons is engaged in extraordinary business which the prorogation interferes with or precludes. The government is then required to justify why such interference is reasonable.  

The present application before the Canadian courts fails to meet the Miller standard on both counts. 

The political context of the prorogation request 

A brief background of the Canadian parliamentary and political scene demonstrates the ‘ordinary’ and reasonable basis for the request. Justin Trudeau’s Liberal party won a plurality of seats in the October 2021 elections and governed in a minority parliament with a supply and confidence arrangement with the New Democratic Party (NDP) providing the Liberals with a working majority.  Up to November 2024 the Liberals had survived a number of confidence votes with the support of the NDP. The current parliament has sat since December 2021 in a single first session. 

Notably, since 8 October 8, the House of Commons has been ‘paralysed’ by a privilege debate over the government’s alleged failure to provide documents to the MPs. The debate was triggered by the Official Opposition, the Conservative Party, filibustering its own, and usually perfunctory, motion to refer the matter to the Procedure and House Affairs Committee. This two-month long debate has pre-empted all government and legislative business in the House and was still ongoing when it adjourned for the Christmas break in the first week of December. The only break in the privilege debate has been by agreement among House leaders to allow for supply (opposition) days, and to vote interim supply. The supply days were used by the Conservatives for confidence votes, and interim supply votes were also matters of confidence. In all cases the NDP voted with the governing Liberals. 

In the meantime, the Finance Minister, Chrystia Freeland, was scheduled to deliver an economic statement to the House of Commons 16 December. The purpose of the statement was both to provide an economic update, and to stem the precipitous drop of the Liberals in electoral opinion polls. Rumour had it that Freeland and Trudeau were not in agreement on the content of the speech, and further rumours had the Prime Minister threatening to shuffle her out of her position. On the morning the speech was to be delivered, Freeland in a pointed letter, resigned. Trudeau was forced to hastily appoint a replacement, Dominic LeBlanc, to give the update. This caused political chaos both in the House and the Liberal caucus. Among other things, the NDP leader, Jagmeet Singh, indicated that his party had no confidence in the government and would vote accordingly when the next opportunity arose in the House. The Prime Minister was also required to make a major cabinet reshuffle to replace Freeland and to address the situation of numerous ministers who indicated that they would not be seeking re-election. Before anything was resolved, the House, pursuant to the set calendar, adjourned for Christmas until 27 January.   

During the Christmas break there was growing dissent in the Liberal caucus and demands for Trudeau to resign grew stronger. The Liberals continued to sink even further in the polls. 

Is the prorogation request proper? 

On 6 January, Trudeau made the request that parliament be prorogued until 26 March. He also stated that he was resigning as Leader of the Liberal Party, to take effect when a new leader is selected. This date is currently set to be 9 March. Based on this set of circumstances, he indicated that there were a number of reasons that the prorogation was appropriate. First, he noted that fact that parliament had been, and remained, ‘paralysed’ by the obstructionist tactics of the opposition and that the government was not able to move its agenda in the House. Second, it was necessary to reset both the government and the parliamentary agenda. Even if the Prime Minister had not indicated his intent to resign, such a request following a major cabinet reshuffle including the Finance Minister (who was also Deputy Prime Minister), would not be out of order. Finally, a change in leadership of the governing party inevitably results in a new Prime Minister and a new government. The new Prime Minister will be asked to form a government and prepare a Speech from the Throne to outline the new government’s agenda to parliament. Any of these three reasons would alone be a sufficient and reasonable ground for a prorogation request. Together they almost require a prorogation.  

As for the length of time of prorogation, a request that is effectively two months longer than the scheduled return from the Christmas adjournment, in order to achieve such changes and provide a reset for this parliament, is not an extraordinary or an inappropriate length in Canada.   

The date for the return of parliament, with a Speech from the Throne, also addresses one of the main arguments of the judicial review applicants. They argue, among other things, that the reason for the prorogation is to avoid a confidence vote that the Trudeau government was destined to lose. However, the timing and outcome of any particular confidence motion was unknown. There was no motion of confidence before the House at the time of prorogation, nor was the basis of any such motion known. In order for such a motion to be presented, the opposition would have to deal with or abandon its own motion that is at present clogging the business of the House. There would then have to be a supply day allocated to the opposition, with the scheduling of such day at the discretion of the government. Or there would need to be a vote on a money bill. Again, this would be subject to the opposition allowing such a bill to be debated and voted on, in the face of its privilege motion. Alternatively, there would need to be a vote on supply, which is not scheduled until just before 1 April, the beginning of the new fiscal year. With a return date following prorogation set for 26 March, there will be automatic confidence votes on the Speech from the Throne, and the required supply vote. Given the timelines, and the scheduled return date, the prorogation has made minimal difference to the potential for confidence votes.  

Unlike the time sensitive political and potential constitutional imperative before the UK House of Commons at the time of the Miller 2 request, there was no immediate business before the House of an extraordinary nature requiring the House’s attention. The only matter that was ‘moving’ before the House was the opposition privilege motion, which was responsible for blocking all other business from moving forward. What was before the House was a political, not a constitutional, matter to resolve.   

The applicants also speculate on the possible need for the House to sit to address issues relating to the potential tariffs that the newly inaugurated President of the United States, Donald Trump, is threatening. Again, all of this is speculative. Also, the role that the House would play is limited and unknown at this stage. Until the tariffs are imposed, the potential impact considered, and the government of Canada prepares a response, there is nothing to be considered by the House. In fact, there is considerable power in the executive to respond without parliamentary involvement, as evidenced by the meeting of the Prime Minister and provincial premiers in the second week of January to work on a co-ordinated federal-provincial response. Both levels of government are implicated in any tariff response, and both levels of executive government have the necessary tools at their disposal to respond. 

In short, the request for prorogation, while subject to judicial review, is likely to fail to meet any of the tests set out in Miller 2. There is no extraordinary parliamentary, constitutional or time-sensitive ‘crisis’ that prorogation interferes with. Other than the opposition’s itch to defeat the government and fight an election against the incumbent Prime Minister, there is no parliamentary business of any significance before the House. In addition, prorogations are normal in the life of a parliament, and assuming the government needs to have a reasonable governance basis for any such request, the circumstances of the present political and parliamentary climate in Canada meet that standard. 

About the author

Steven Chaplin is an Adjunct Professor in the Common Law Section of the Faculty of Law at the University of Ottawa and a former Senior Parliamentary Counsel for the Canadian House of Commons.

Featured image: Funeral of the The Honourable Ed Broadbent (CC BY-NC 2.0) by Broadbent Institute | Institut Broadbent