Evaluating the Legal Challenge to Trudeau's Prorogation

Abstract

Prorogation is a routine occurrence in the parliamentary calendar. In recent years, however, this seemingly mundane event has become a matter of some controversy. In early January 2025, Prime Minister Justin Trudeau announced that he would resign as Prime Minister once a new Liberal leader was selected. He also revealed that he had advised the Governor General to prorogue Parliament and that she had granted the request, with Parliament set to return on March 24. The announcement ended months of speculation about Trudeau’s future. But it also raised questions about whether Parliament had been prorogued to avoid a vote of no confidence and to allow for a new Liberal leader to be selected.

These events have raised questions about (1) the constitutional limits, if any, on the prime minister’s advice-giving function, (2) when, if ever, the governor general is entitled to refuse a request to prorogue parliament, and (3) whether prorogation is amenable to judicial review. In this article, I discuss the legal and the political issues raised by prorogation, both in the context of the current litigation and more broadly. I conclude that judicial intervention in the current prorogation case is not constitutionally justified. By staking out a judicial role in prorogation, I argue, courts risk disrupting the delicate balance of legal and political that defines our modern constitutional order.

Keywords: prorogation, constitutional convention, constitutional law, Crown, Governor General, Prime Minister, prerogative power