Trudeau’s move to suspend Parliament faces a legal challenge. Don’t hold your breath for a win, experts say

Less than two days after Prime Minister Justin Trudeau asked to suspend Parliament, one legal advocacy group has already taken the issue to court, while another has said it plans to do the same.

The legal action was to be expected, but academics and a lawyer specializing in the Canadian Constitution aren’t holding their breath for a win. They say Trudeau’s request and the Governor General’s approval is less a legal matter than an issue of what’s right under the Constitution — and it that regard, they say, the prime minister and governor general went by the book.

“I don’t believe there’s any realistic chance that this court case will succeed,” said Andrew Heard, professor emeritus in political science at Simon Fraser University.

Claim argues suspension was self-serving

Trudeau, 53, said he asked for a Parliament shutdown because the House needed a “reset” after being gridlocked on a privilege issue for some time. It also buys the Liberals time to pick his successor, which Trudeau said will happen through a “robust, nationwide, competitive process.”

Suspending Parliament in Canada happens through a process called prorogation. Under the Constitution, the prime minister can ask the Governor General to bring the current session in Ottawa to an end without dissolving it completely.

Cabinet ministers stay in their roles and the government’s day-to-day operations carry on, but members of Parliament can’t vote on any new laws or new spending — or hold confidence votes.

The latter is at the core of a claim filed in Federal Court on Wednesday. Two men from Nova Scotia, backed by the Justice Centre for Constitutional Freedoms (JCCF), say Trudeau only asked to suspend Parliament to escape a confidence vote he would certainly lose, since the Liberals only have a minority in Parliament and have lost the support of the other major parties.

The JCCF is a legal advocacy organization that backed members of the Freedom Convoy and represented Manitoba churches challenging COVID-19 restrictions.

The court filing said Trudeau’s request was “incorrect, unreasonable or both” because it blocks Parliament from dealing “quickly and decisively with especially pressing issues,” namely the threat of significant tariffs from U.S. president-elect Donald Trump once he takes office on Jan. 20.

Another group, Democracy Watch, has also said it plans to legally challenge the prorogation as being in the Liberals’ “self-interest.”

Motivations aside, academics say Gov. Gen. Mary Simon had one key issue to consider when deciding on Trudeau’s advice: whether, as of that moment, the prime minister had the confidence of the House. 

Trudeau survived three confidence votes in the fall. The Conservative Party wanted to hold another one this month and the NDP said it was prepared to help bring the prime minister down, but as of Monday, there was no vote on the books.

Phillippe Lagassé, an associate professor of international affairs at Carleton University, said the Governor General has to base her decision on what has happened in the Chamber up to this point.

“You can’t rely on what the opposition players are saying in public,” he told CBC’s Power and Politics. “It’s easy to say whatever you want in public.” 

So, since Trudeau still had the confidence of the House on paper when he went to Simon, it’s normal under the Constitution for the Governor General to prorogue Parliament at his advice.  

“I don’t think there was much doubt she would accept,” said Lagassé.

“We may disagree with the probity of it, we may think the prime minister was acting in a way that was dishonourable or unethical, but constitutionally speaking, that’s what the Governor General has to consider: is it within the constitutional rules? And it was.”

Paul Daly, a constitutional lawyer, agreed it was “not surprising” to see Simon grant Trudeau’s request, considering his survival in the House to date and the fact that he said he would resign.

“Given the reasons provided, it is difficult to say that this prorogation violates the relevant constitutional principles,” he wrote on his blog Monday.

“I would think the prospects for any successful challenge are low.”

Trudeau’s move different from Harper’s, professor says

Trudeau’s request to suspend Parliament has drawn comparisons to a similar move in December 2008. Then-prime minister Stephen Harper was chastised for going to then governor general Michaëlle Jean for a pause just days before he would have faced a confidence vote over a budget dispute.

Parliament returned the following month, but by then, the Opposition’s plan to defeat Harper had fizzled. The Conservatives stayed in power for six more years.

Scholars have long since debated whether that prorogation was appropriate. 

Heard, the political science professor, condemned Harper and Jean’s decisions in a 2009 paper. In it, he argued Harper’s play was “questionable,” constitutionally speaking, and said shutting down Parliament to stay in office would be “fundamentally antidemocratic and a mark of authoritarian governments that abuse their powers.”

Heard wrote that Jean’s decision could have opened the door for any future prime minister to request prorogation to “escape almost certain defeat in a confidence motion.”

But in an email to CBC News on Wednesday, Heard said Harper’s situation was “categorically different” from Trudeau’s.

With Harper, he said, a confidence vote was on the schedule and backed up with a signed letter from every single opposition MP — who made up the majority in the House — vowing to vote the prime minister out on that date. With Trudeau, opposition leaders had only given their word they’d vote against him, and the prime minister had already said he would resign anyway.

Regardless, Heard said he didn’t see a court challenge as practical or appropriate, since the issue is about “constitutional convention rather than law.”

British court’s rare ruling

One court has weighed in on a prorogation dispute, but not in Canada.

In 2019, the British Supreme Court threw out then-prime minister Boris Johnson’s suspension of Parliament after a Scottish woman and English woman each filed legal challenges against a five-week pause that interrupted a Brexit dispute.

The court unanimously found Johnson had acted illegally by hindering lawmakers from having a say in Britain’s departure from the European Union. The ruling declared the prorogation order Johnson requested, issued by the late Queen Elizabeth herself, was “unlawful, void, and of no effect.”

The ruling was widely seen as a remarkable example of the nation’s highest court taking the unusual step of intervening in a political matter, but it’s not binding in Canadian courts.

Ottawa has not responded to the Federal Court claim.