Western Standard - HANNAFORD： Nobody but Trudeau has tried to escape scrutiny for this long

00:00:00.000 Thank you.

00:00:30.000 Thank you.

00:01:00.000 Thank you.

00:01:30.000 Thank you.

00:02:00.000 Transcription by CastingWords

00:02:30.000 Good evening, Western Standard viewers, and welcome to Hannaford, a weekly politics show.

00:02:37.720 It is Monday, January the 13th, and my guest today is constitutional lawyer John Carpe,

00:02:44.320 and we're going to be talking about whether what Prime Minister Trudeau did last week

00:02:49.120 in proroguing Parliament was even legal, never mind wise.

00:02:55.100 Welcome to the show, John.

00:02:56.540 Good to see you. Thanks for having me.

00:02:58.180 Well, always a pleasure, John.

00:03:00.000 First, though, a word from our sponsors.

00:03:05.080 This episode of Hannaford is sponsored by New World Precious Metals, based right here in Calgary.

00:03:12.760 Years of inflationary money printing and rising debt have decimated the savings of the average Canadian.

00:03:20.960 Gold and silver are the only currencies that have held their value for thousands of years.

00:03:27.360 last year alone saw 30 percent gains new world precious metals offers unique platforms to help

00:03:37.240 protect and grow our hard-earned wealth with gold and silver check them out at newworldpm.com

00:03:47.140 Again, that is newworldpm.com.

00:03:53.180 John, 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.

00:04:09.600 When will that be?

00:04:11.300 Supposedly March the 9th is when the Liberals want to have their leadership vote.

00:04:16.360 Parliament 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.

00:04:32.780 John, 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?

00:04:44.820 as opposed to, well, I guess the members of Parliament have no power if they've been sent home.

00:04:51.440 What does it really mean, and why is it there at all?

00:04:55.340 So prorogation is shutting down Parliament, but without an election following immediately thereafter.

00:05:03.620 So if you want to look at it, one way to look at it is on the one extreme you've got dissolution,

00:05:09.120 Parliament is dissolved, and there's new elections.

00:05:11.500 On 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.

00:05:21.600 Prorogation is halfway between the two, where you shut down Parliament, like it's dissolved, but there's no election.

00:05:28.300 And it is ordinarily done when the Parliament is completed.

00:05:35.440 You know, they've been sitting for a year or two and they're done with all their legislation.

00:05:44.440 They've done their best to implement what was in the throne speech and it's kind of come to an actual conclusion.

00:05:51.440 We don't want an election yet because we're only two years into the term, but we're going to prorogue parliament.

00:05:56.440 Parliament's going to really take a break.

00:05:58.440 Now, 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?

00:06:11.580 In the British system and Canadian system, based on that, the government must enjoy the confidence of the House of Commons, the majority of MPs.

00:06:21.520 That's where the confidence vote comes in.

00:06:23.300 So you have a minority government, but if the majority of MPs do not have confidence in the government,

00:06:28.840 the government falls and elections are called.

00:06:32.280 So what's going on here on January the 6th is that Prime Minister Trudeau prorogued Parliament,

00:06:39.260 so he and his government are not accountable, there cannot be a vote of confidence,

00:06:44.960 and it's for 11 weeks, which is a very long time.

00:06:48.120 Now, I think there is a British precedent, a relatively recent one, which you mean to draw on.

00:06:56.240 Can you just talk about that and tell us how likely it is that the, I guess it's the federal court, isn't it?

00:07:02.320 Not the Supreme Court of Canada. The federal court is going to hear this.

00:07:06.560 Yes, it's starting, we filed the application in the federal court.

00:07:09.460 And the precedent we rely on is the Miller case, Miller versus the Prime Minister, 2019 Supreme Court of the United Kingdom.

00:07:20.540 And in this case, Boris Johnson was the leader of a minority conservative government.

00:07:27.220 He had just become the new party leader and the prime minister.

00:07:30.220 and it was three years after the majority of voters in the United Kingdom had voted to leave

00:07:38.880 the European Union. The leave side won the referendum by a narrow margin over the remain side

00:07:44.960 and Boris Johnson was of the view that it was taking way too long. These negotiations were

00:07:51.080 going on and on and on and on and he said look the only way to move this ahead is to tell the

00:07:57.260 European Union that if necessary, we will leave without a deal. So he was willing to do a no deal

00:08:03.080 exit. Majority of MPs disagreed with him on that point. They wanted to keep on negotiating. Anyway,

00:08:11.280 he prorogued Parliament in the three months prior to when they were supposed to leave,

00:08:21.040 which was October 31st, Boris Johnson prorogued parliament for five weeks, which was longer than

00:08:28.200 the usual one to three weeks. And immediately court application was filed. And a few weeks

00:08:34.260 later, it went up the chain quickly. And the United Kingdom Supreme Court said that it was

00:08:42.000 an unlawful prorogation of parliament because Boris Johnson was trying to avoid parliamentary

00:08:48.740 through scrutiny, of his conduct as he was taking Britain out of the European Union.

00:08:55.760 And so the supremacy of Parliament, the sovereignty of Parliament,

00:08:59.200 accountability to Parliament were principles that were being violated

00:09:02.500 by a prorogation that was for five weeks.

00:09:05.840 So that is our precedent that we're putting before the Canadian courts.

00:09:09.680 So, John, it seems to me as one of the uninitiated

00:09:13.520 that the profiles of the case you've just described

00:09:17.620 What we have here before us now are very similar.

00:09:21.420 That should be persuasive.

00:09:22.940 But why would any Canadian court look to the British court system for guidance?

00:09:33.160 Well, Canadian courts routinely look at foreign court rulings

00:09:37.200 if there is no Canadian precedent on it, right?

00:09:41.580 So it could be any issue.

00:09:44.160 it could be, you know, contracts or torts or criminal law or something unusual or human

00:09:49.060 rights or whatever, if there's an issue before Canadian courts where there's no Canadian

00:09:53.900 precedent, because we've never had a case like that, the courts will look to, particularly

00:10:01.120 the United Kingdom and the United States would be, you know, because of historical friendship

00:10:07.800 and commonality and historical traditions, those decisions are persuasive, but they're not binding.

00:10:15.880 So the United Kingdom Supreme Court ruling, it's very well reasoned.

00:10:23.080 The court's not required to accept it.

00:10:24.980 I find it very persuasive.

00:10:26.760 And I was sympathetic to Boris Johnson's position on a no-deal Brexit.

00:10:31.940 I actually agreed with him.

00:10:33.100 But the court said it's not about Brexit.

00:10:35.320 it. It's about not abusing Parliament as a means of avoiding the government, avoiding scrutiny.

00:10:43.420 I see. So let's, so we have a Prime Minister in Canada who clearly has come to the end of his

00:10:53.020 rope. He has three options, one of which is to prorogue. He could have gone straight to an

00:10:59.640 election, which is what I think 98.5% of the country would have recommended if they could

00:11:05.240 have communicated that to him. He could have gone to an election. He could have also put

00:11:10.800 Parliament in recess, but then he would still be under some level of scrutiny from the opposition.

00:11:18.000 But by proroguing, he has just concluded the order of business. He's got 11 weeks,

00:11:24.020 during which, what, he governs without scrutiny? Yes. There's no, not only is there no question

00:11:30.760 period, because during an adjournment or a recess there's no question period.

00:11:35.520 But the committees are not functioning, so the committees are not in a position to ask

00:11:39.960 questions of ministers that ministers have to answer.

00:11:44.040 Parliament is just shut down completely, the way it is when it's dissolved.

00:11:48.760 But for 11 weeks, this is just a gift to the Liberal Party of Canada, which obviously if

00:11:54.640 you're a Liberal supporter you'd be happy with it, but that's not the purpose of prorogation.

00:11:59.160 don't do that for the benefit of one political party. Prime Minister Trudeau has described the

00:12:05.180 Liberal Party as an institution of Canadian politics, and he's probably correct, it's been

00:12:10.940 around for so long, and it's certainly some institution, but constitutionally, neither the

00:12:17.600 Liberal Party nor any other party has any status whatsoever. Constitutionally, you're looking at

00:12:21.980 the MPs in the House Commons, we could have 338 independents in the House Commons, there's no

00:12:28.920 special role that is recognized for political parties under Canada's constitution. So they do

00:12:37.860 exist. But, you know, the fact that this might be unhappy for the Liberal Party to suddenly have an

00:12:46.040 election forced on it through a non-confidence vote, and they don't have a leader, from a

00:12:51.480 constitutional standpoint, that's irrelevant. So you say a gift to the Liberal Party is the gift

00:12:58.100 that it has a period of time

00:13:00.280 to select a new leader

00:13:01.420 or is it actually a gift

00:13:03.240 to the leader

00:13:04.620 who is about to leave us

00:13:06.000 that for the next period of time

00:13:08.960 he can govern

00:13:10.600 with really nobody

00:13:12.600 to put the brakes on him?

00:13:15.060 That too, yeah.

00:13:16.160 Well, I think that worries me

00:13:17.480 more than the other

00:13:18.180 to be quite honest.

00:13:20.080 What are the limits

00:13:20.960 on his abilities

00:13:23.000 during a prorogation period?

00:13:25.660 well there isn't the scrutiny or the accountability so for example we've got the

00:13:33.500 president-elect trump is uh seems to be quite serious about these 25 tariffs so the prime

00:13:41.500 minister and the cabinet will handle that as they deem best but with parliament prorogued

00:13:49.180 they don't really have to answer to anybody they don't have to answer questions about it

00:13:53.500 it, neither through question period or otherwise. So, you know, will they govern differently

00:14:01.200 than what they would have if Parliament was still in session? I mean, we don't, it's

00:14:05.680 hypothetical, you know, we're not seeing that. But yeah, for the...

00:14:09.140 Well, it's only been a week, give them time.

00:14:12.280 Well, 11 weeks is a very long time. I mean, in the UK, Boris Johnson wanted to pirogue

00:14:16.920 for five weeks, and the court stepped in and said that that was way too long.

00:14:20.280 No, it does seem to be power without accountability,

00:14:25.800 and I'm just not sure what power the government has to spend money

00:14:31.380 to make a binding arrangement on tariffs.

00:14:37.180 I'm not asking you to speculate on this particularly,

00:14:41.440 but can they unilaterally, in a period of prorogation,

00:14:46.120 put an export tax on Alberta oil

00:14:51.140 but not on somebody else's oil.

00:14:54.100 This is unknown territory

00:14:56.680 and I think there will be books written about this in the future.

00:15:01.780 Tell us about the federal court.

00:15:03.740 Many people don't get the difference

00:15:05.580 between the federal court and the Supreme Court.

00:15:07.820 Why did it go there

00:15:09.400 and what process do you expect out of this?

00:15:13.320 So the federal court is a lower court

00:15:15.740 similar to say in Alberta, we've got the Alberta Court of King's Bench, and then the Alberta Court

00:15:23.140 of Appeal, and then the Supreme Court of Canada. Or in British Columbia, it's the BC Supreme Court,

00:15:28.000 BC Court of Appeal, and then the Supreme Court of Canada. You have a federal court trial division,

00:15:33.040 federal court of appeal, and then the Supreme Court of Canada. So the federal court is analogous

00:15:38.900 to what's in place in each province and it was created for the purpose of uh dealing especially

00:15:45.780 with federal issues so if you sue the federal government over something uh you may want to do

00:15:52.900 it in federal court because that's their specialty uh although you can sue the federal government in

00:15:57.780 the alberta court of king's bench as well so it's it's a it's two levels trial and appeal and so we

00:16:04.740 filed in the uh trial court and um we are going to see to what extent uh the government's going

00:16:13.060 to use delay tactics uh right now at this moment we're we're waiting to hear their position on

00:16:20.340 whether or not this application should be expedited so that already tells you a little

00:16:24.820 bit about where they're coming from well yes i i'm sure that um canadians generally other than

00:16:32.180 those who are irredeemably committed to the liberal cause would probably say yeah this

00:16:37.780 sounds fairly urgent we've got the americans that we need to deal with we got our own issues to deal

00:16:43.060 with um why why wait so uh is there a reason why you went first to the federal court and not

00:16:52.020 directly to the supreme court of canada we have to go to the lower courts first do you okay yeah

00:16:58.180 Yeah, the Supreme Court typically will not hear, say, well, we're a court of appeal fundamentally.

00:17:06.880 But it is possible in theory, whether this happens, we'll have to wait and see.

00:17:10.800 But in the United Kingdom, court cases also take errors like they do in Canada.

00:17:16.880 But the court got this through from the initial, there was an application filed in Scotland, another one in Wales.

00:17:24.660 There were two different outcomes.

00:17:26.080 It moved up the system very quickly.

00:17:27.480 So 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.

00:17:41.920 And 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.

00:17:55.180 And again, in principle, there's no reason why we can't get a Supreme Court of Canada ruling in four weeks.

00:18:02.020 So then the obvious question is, let's say that we had a timely, without putting a limit on it,

00:18:08.060 let's say we had a timely decision on this, and the decision was against the government.

00:18:14.080 What happens? Does everybody just, all the MPs come back and take their seats?

00:18:17.860 They 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.

00:18:30.400 Because the court will say, if it rules in our favor, or favor our side, the court will say,

00:18:38.440 prorogation was illegal, therefore it's null and void, therefore we deem it to have never happened,

00:18:43.520 therefore Parliament is still in session, therefore Parliament can meet tomorrow,

00:18:47.860 Therefore, we can have a non-confidence vote tomorrow.

00:18:51.160 Now, one last thing, John, before we run out of time,

00:18:55.360 I'm going to give you a bit of a chance to do a commercial

00:18:59.600 for the Justice Center for Constitutional Freedoms here

00:19:02.380 because what intrigues me about this case

00:19:04.200 is that the people named as the litigants in this case,

00:19:08.960 I've never heard of them.

00:19:10.240 I mean, maybe they're prominent where they live,

00:19:11.940 but they are not figures whose names you're going to find

00:19:15.400 in the press, radio, and television every day.

00:19:18.800 They seem to be ordinary citizens who just have a concern.

00:19:23.980 And they've looked around and said,

00:19:26.680 how do I address this concern?

00:19:28.580 What do I do?

00:19:29.740 How can I make these people pay attention?

00:19:33.340 Is it the case that any citizen can do that?

00:19:37.360 And how do they fund it?

00:19:40.000 What goes on here?

00:19:41.380 Well, any citizen of Canada can challenge any law of Canada as being unconstitutional.

00:19:49.860 In this particular case, we are challenging the advice that the Prime Minister gave to the Governor General,

00:19:57.660 saying the advice was incorrect, was illegal.

00:20:03.020 Um, and so, but if there's a law that violates, you know, your freedom of expression or religion

00:20:11.120 or association or whatever, any citizen can go into court. Now, in practice, it's very hard

00:20:17.480 because if you don't know what you're doing, uh, you know, it's pretty hard to, to, to do a court

00:20:22.540 action. If you need to hire a lawyer, you're going to be needing to look at 50,000 or 250,000

00:20:29.940 over time and so the justice center has has a team of lawyers and they're full-time practicing

00:20:37.580 constitutional law and so um in this case they're two citizens in nova scotia not very famous one

00:20:46.740 of them's medical doctor the other one i forgot what line of work he's in but just ordinary

00:20:50.840 canadians and we could have had one from alberta and one from quebec or whatever so we have the

00:20:55.460 two Canadians who live in Nova Scotia. They're the clients. And then our lawyer, James Manson,

00:21:01.540 who's based in Toronto, he filed the papers. They've consented to be named as the applicants.

00:21:07.600 They don't have to pay money for that. They're not paying money for this. And James Manson is

00:21:13.280 bringing the court application into court. So they're not paying for it. The Justice Center

00:21:19.480 doesn't print its own money,

00:21:22.120 so I'm assuming that this actually rests on the willingness

00:21:25.920 of other very ordinary citizens

00:21:28.500 to contribute money to pay for these kinds of cases.

00:21:32.620 I can't imagine that this is funded by

00:21:34.780 a division of the federal government.

00:21:37.400 Well, you know, there is a thing called the Court Challenges Program.

00:21:41.520 You don't qualify, do you?

00:21:44.440 You know, if we did, I'm not sure if we would want the money,

00:21:47.260 But, 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.

00:21:56.840 Some people are able to give more, other people less.

00:22:00.320 And so you've got 10,000 people that are donating to the Justice Centre.

00:22:05.360 And then from that money, we pay our team of staff lawyers and paralegals and communication staff.

00:22:12.700 And then when there's a case like this, you know, the applicants, they don't need to have their own $50,000.

00:22:20.720 We could just move ahead and hold the government to account.

00:22:25.220 So actually, the system does work if people want it to work.

00:22:30.580 It could work better, but fundamentally, yes, the system does work.

00:22:34.280 It is possible to do governments in court, and it's even possible to win.

00:22:40.140 We've had some setbacks with the lockdowns in recent years,

00:22:45.360 but we've had our share of victories as well.

00:22:47.480 You can't win them all.

00:22:49.340 Well, how true that is, John, but it's encouraging to know.

00:22:53.160 There was one case that I think got a lot of traction.

00:22:57.300 It was a chap who wanted, he dressed as a woman and wanted... 0.97

00:23:02.880 The Brazilian bikini wax.

00:23:04.760 That was one of your cases, right?

00:23:06.800 It was.

00:23:07.260 Okay.

00:23:07.660 Nobody else is willing to help these visible minority immigrant women who are doing Brazilian bikini waxes out of their home for women. 1.00

00:23:18.400 And then they get human rights complaints filed against them by somebody who's got the twig and berries. 0.78

00:23:27.440 And, you know, they couldn't get legal help.

00:23:30.060 Is that a legal phrase?

00:23:31.240 Twig and berries.

00:23:32.180 I guess it is now.

00:23:33.120 yes we're getting a little far from prorogation i guess but it's perhaps my my fault for leading

00:23:38.240 you down a blind alley so to sum this one up john we've got a we've got a couple of citizens

00:23:44.480 who feel strongly funded by 10 000 other citizens who feel strongly who have actually come together

00:23:53.360 to use your organization the justice center for constitutional freedoms to challenge something

00:24:00.480 that is of national importance to 40 million canadians that's it you've summed it up well

00:24:05.680 wow i i wonder how many people actually know that these things are even win or lose that

00:24:11.920 is even possible to try um if that's a subject for another day but you know i do recognize the

00:24:19.280 and i think i should for western standard viewers just remind them that your organization was front

00:24:25.040 and center in in challenging many of the worst aspects of the covert regulations that came down

00:24:31.920 2021 well 2020 actually and uh that you've also been very forthright in looking after the little

00:24:42.480 things as well as the big things so john i'm sorry to drag you away from your desk i i pray

00:24:48.240 that we do not lose a court case because you are here talking to me but uh thank you very much for

00:24:54.080 coming in yeah it's my it's been great to have you it's my pleasure and the court case is handled

00:24:59.840 very ably by a toronto-based lawyer james manson so you know this this interview the short interview

00:25:07.200 is not going to do any damage i assure you thank you john thank you ladies and gentlemen

00:25:13.280 For the Western Standard, I'm Nigel Hannaford.

00:25:16.700 Good night.

Western Standard - January 14, 2025

HANNAFORD： Nobody but Trudeau has tried to escape scrutiny for this long

Episode Stats

Summary

Transcript