In this episode, constitutional lawyer John Carpe joins me to talk about whether Prime Minister Justin Trudeau's decision to prorogued Parliament was wise, and whether it will be upheld by the Supreme Court of Canada.
00:03:53.180John, a week ago today, Prime Minister Justin Trudeau prorogued Parliament and told Canadians he intended to resign as both party leader and as prime minister after the party selects its next leader.
00:04:11.300Supposedly March the 9th is when the Liberals want to have their leadership vote.
00:04:16.360Parliament is prorogued until the 24th, and our court action is based on the view that he is abusing prorogation for the benefit of the Liberal Party of Canada, and prorogation should not be used in a partisan fashion that way.
00:04:32.780John, for those of us who aren't constitutional lawyers, can you talk a little about what prorogation means in terms of the powers of the government?
00:04:44.820as opposed to, well, I guess the members of Parliament have no power if they've been sent home.
00:04:51.440What does it really mean, and why is it there at all?
00:04:55.340So prorogation is shutting down Parliament, but without an election following immediately thereafter.
00:05:03.620So if you want to look at it, one way to look at it is on the one extreme you've got dissolution,
00:05:09.120Parliament is dissolved, and there's new elections.
00:05:11.500On the other side, you can have a recess or an adjournment, so there's going to be no question period, but otherwise Parliament does continue to function with its committees.
00:05:21.600Prorogation is halfway between the two, where you shut down Parliament, like it's dissolved, but there's no election.
00:05:28.300And it is ordinarily done when the Parliament is completed.
00:05:35.440You know, they've been sitting for a year or two and they're done with all their legislation.
00:05:44.440They've done their best to implement what was in the throne speech and it's kind of come to an actual conclusion.
00:05:51.440We don't want an election yet because we're only two years into the term, but we're going to prorogue parliament.
00:05:56.440Parliament's going to really take a break.
00:05:58.440Now, when Parliament is prorogued, the government, during that time, functions without accountability to Parliament, because the government and Parliament are not the same thing, right?
00:06:11.580In the British system and Canadian system, based on that, the government must enjoy the confidence of the House of Commons, the majority of MPs.
00:06:21.520That's where the confidence vote comes in.
00:06:23.300So you have a minority government, but if the majority of MPs do not have confidence in the government,
00:06:28.840the government falls and elections are called.
00:06:32.280So what's going on here on January the 6th is that Prime Minister Trudeau prorogued Parliament,
00:06:39.260so he and his government are not accountable, there cannot be a vote of confidence,
00:06:44.960and it's for 11 weeks, which is a very long time.
00:06:48.120Now, I think there is a British precedent, a relatively recent one, which you mean to draw on.
00:06:56.240Can you just talk about that and tell us how likely it is that the, I guess it's the federal court, isn't it?
00:07:02.320Not the Supreme Court of Canada. The federal court is going to hear this.
00:07:06.560Yes, it's starting, we filed the application in the federal court.
00:07:09.460And the precedent we rely on is the Miller case, Miller versus the Prime Minister, 2019 Supreme Court of the United Kingdom.
00:07:20.540And in this case, Boris Johnson was the leader of a minority conservative government.
00:07:27.220He had just become the new party leader and the prime minister.
00:07:30.220and it was three years after the majority of voters in the United Kingdom had voted to leave
00:07:38.880the European Union. The leave side won the referendum by a narrow margin over the remain side
00:07:44.960and Boris Johnson was of the view that it was taking way too long. These negotiations were
00:07:51.080going on and on and on and on and he said look the only way to move this ahead is to tell the
00:07:57.260European Union that if necessary, we will leave without a deal. So he was willing to do a no deal
00:08:03.080exit. Majority of MPs disagreed with him on that point. They wanted to keep on negotiating. Anyway,
00:08:11.280he prorogued Parliament in the three months prior to when they were supposed to leave,
00:08:21.040which was October 31st, Boris Johnson prorogued parliament for five weeks, which was longer than
00:08:28.200the usual one to three weeks. And immediately court application was filed. And a few weeks
00:08:34.260later, it went up the chain quickly. And the United Kingdom Supreme Court said that it was
00:08:42.000an unlawful prorogation of parliament because Boris Johnson was trying to avoid parliamentary
00:08:48.740through scrutiny, of his conduct as he was taking Britain out of the European Union.
00:08:55.760And so the supremacy of Parliament, the sovereignty of Parliament,
00:08:59.200accountability to Parliament were principles that were being violated
00:09:02.500by a prorogation that was for five weeks.
00:09:05.840So that is our precedent that we're putting before the Canadian courts.
00:09:09.680So, John, it seems to me as one of the uninitiated
00:09:13.520that the profiles of the case you've just described
00:09:17.620What we have here before us now are very similar.
00:17:27.480So from the time of filing of the first court action against Prime Minister Johnson's prorogation of Parliament, up until when the United Kingdom Supreme Court issued a ruling was about four weeks in total.
00:17:41.920And there's no reason why we can't have that in Canada as well and get an early ruling from the trial court and whichever side is lost could appeal it, get an expedited appeal.
00:17:55.180And again, in principle, there's no reason why we can't get a Supreme Court of Canada ruling in four weeks.
00:18:02.020So then the obvious question is, let's say that we had a timely, without putting a limit on it,
00:18:08.060let's say we had a timely decision on this, and the decision was against the government.
00:18:14.080What happens? Does everybody just, all the MPs come back and take their seats?
00:18:17.860They come back the following day, take their seats, and if they so wish, they can have a motion of non-confidence and vote on it and force an election the same day that the MPs get back.
00:18:30.400Because the court will say, if it rules in our favor, or favor our side, the court will say,
00:18:38.440prorogation was illegal, therefore it's null and void, therefore we deem it to have never happened,
00:18:43.520therefore Parliament is still in session, therefore Parliament can meet tomorrow,
00:18:47.860Therefore, we can have a non-confidence vote tomorrow.
00:18:51.160Now, one last thing, John, before we run out of time,
00:18:55.360I'm going to give you a bit of a chance to do a commercial
00:18:59.600for the Justice Center for Constitutional Freedoms here
00:19:02.380because what intrigues me about this case
00:19:04.200is that the people named as the litigants in this case,
00:21:44.440You know, if we did, I'm not sure if we would want the money,
00:21:47.260But, yeah, there's about 10,000 Canadians from BC to Newfoundland, and they donate, you know, some people give us $100 a year or $1,000 a year.
00:21:56.840Some people are able to give more, other people less.
00:22:00.320And so you've got 10,000 people that are donating to the Justice Centre.
00:22:05.360And then from that money, we pay our team of staff lawyers and paralegals and communication staff.
00:22:12.700And then when there's a case like this, you know, the applicants, they don't need to have their own $50,000.
00:22:20.720We could just move ahead and hold the government to account.
00:22:25.220So actually, the system does work if people want it to work.
00:22:30.580It could work better, but fundamentally, yes, the system does work.
00:22:34.280It is possible to do governments in court, and it's even possible to win.
00:22:40.140We've had some setbacks with the lockdowns in recent years,
00:22:45.360but we've had our share of victories as well.
00:23:07.660Nobody else is willing to help these visible minority immigrant women who are doing Brazilian bikini waxes out of their home for women.1.00
00:23:18.400And then they get human rights complaints filed against them by somebody who's got the twig and berries.0.78
00:23:27.440And, you know, they couldn't get legal help.