Federal Court’s Prorogation Hearing Is Indulging Insanity

On This Dangerous Lunacy

You cannot judicially review the exercise of a reserve power.

There’s no real ifs, ands, or buts here, you can’t judicially review the exercise of reserve powers. The Governor General has the right to deny reserve powers, within a narrowly confined band of outcomes - namely, if the PM is seeking to go around the constitutional boundaries - but the reserve powers are reserved (get it?) for the Crown to exercise upon the advice of his or her Prime Minister.

In 2012, the exact situation came up in Ontario - the Liberals sought prorogation to ensure they’d be able to conduct a leadership race while not having their minority government fall. Such prorogation was granted, Dalton McGuinty handed over to Kathleen Wynne, and the voters of Ontario went to the polls when the legislature decided.

In 2008, Stephen Harper sought prorogation during a similar political and economic crisis - there were public statements by leaders of parties adding up to a majority of the House saying they’d vote against him. He sought, and received, prorogation. He was entitled to it, since the House had given him confidence in the immediately preceding days, and no public statements could overrule that.

This is all to say the Federal Court’s decision to grant a hearing on whether or not Justin Trudeau’s decision to prorogue is constitutional or not is a crock of shit. It is patently constitutional, the arguments against it are nonsensical, and the Court is legitimizing idiocy and giving hope to the gullible by indulging this. This is a huge mistake.

The Canadian precedents make clear there is no right for the courts to intervene. This prorogation is well within the fact pattern of the two relevant examples, which is part of why the Governor General allowed it. Those who support this move are attempting to argue the merits of how it “should” work, as opposed to the way it does.

A Prime Minister is deemed to have the confidence of the House until they don’t. There is no fugue state whereby they are both legally in office but defanged, only able to exercise some powers. If the Governor General were to reject a prorogation from a Prime Minister, they would be morally and constitutionally obliged to fire that Prime Minister, as they would no longer believe he can govern. But again, the Liberals have the confidence of the House, as earned in December and affirmed by the adjournment of the House.

The UK court case from 2019, far from the silver bullet those begging for judicial review hope it is, shows the crisis at the heart of judicial review of reserve powers. That decision was a crock of shit designed not to answer a legal dispute but to serve a political purpose. That was a political decision taken by the Supreme Court to stop the Tories from enacting Brexit from a court full of Remainers. Gina Miller never should have been granted standing, let alone won. It was leftist judicial activism of the sort that Canadian conservatives should absolutely oppose.

It’s also worth noting that if you’re going to start letting Canadian judges just start making shit up, the Laurentian Elites that make up the Canadian judicial system are not exactly going to be making the kind of judge made law conservatives like. Gina Miller won in England because the judges she was arguing in front of agreed with her politics. If we just decide the law is open for rewriting from the bench, congrats on some liberal hack destroying the Notwithstanding Clause just because Poilievre invoked it on some ruling he didn’t like. You want to see what the worst excesses of the Rosedale progressive set can do to undermine Poilievre? I don’t think so.

As Phillippe Lagasse put it on Twitter the morning of the prorogation, “The Governor General is doing what the constitution demands, whether we like it or not.” Both he and I are of the same mind, that you can find the prorogation distasteful or not in the national interest in some way, but it’s legal. There’s no credible constitutional scholar who disagrees. Even those who oppose prorogation, like Andrew Coyne, acknowledge that their problem with it lies not in a belief that it is unconstitutional, but that it should be. And that’s worthy of a debate! But that’s not worthy of a Federal Court hearing.

The honest truth is that the facts of 2025 are essentially identical to 2008, and yet almost everybody is in a different place. In both cases, you had two parties vehemently opposed to the current government during a minority parliament and an economic crisis. In both cases you had a third party that was nominally opposed to the government, but there was reason to doubt their resolve. And in both cases, the Governor General understood that the vote of the House taken in recent memory was worth more than the statements of the party leaders, decided (correctly) that the incumbent PM retained the confidence of the House, and granted the prorogation.

In 2025, there are two greater reasons to grant this prorogation. First is the example of 2008/09 - Michael Ignatieff’s Liberals are further proof that the word of an opposition in the press or in a press release is worth nothing. There was already no reason to take what you might call the “media whip count” seriously in that context, but then Charlie Angus made it even harder to take it seriously. Angus has said he’d defy Jagmeet Singh if necessary and not vote to bring down this government. Angus’ comments bring significant doubt to whether Singh can carry enough New Democrats to even win a non-confidence vote. Given both these additional points, the already unassailable case for prorogation is strengthened.

The 2008 “crisis” is one of my earliest political memories, and in 08, as an overly precocious 11 year old with CNN and CPAC addictions, the prospect of a government propped up by the Bloc horrified me. I might be one of 12 people in this country who believe both prorogations were legal and also justified. Reserve powers cannot be judicable. They cannot be.

What’s next, suing the Federal Government for appointing Charles Adler to the Senate because you don’t like that he’s stopped shilling for Conservatives? Suing Doug Ford for going to an early election? Suing David Eby for not appointing Conservative MLAs to his Cabinet? Where is the line, if we allow idiotic judicial reviews of straight forward reserve powers?

There will be a day when Pierre Poilievre - or in some insane world where he blows it, some other Conservative - is in government in Canada. The reason I strenuously oppose various dumb ideas mooted by progressives around disinformation is that I am fully aware of the fact that people I don’t trust to define disinformation will hold power at some point, almost assuredly later this year. If I wouldn’t trust Poilievre, Melissa Lantsman, and Jenni Byrne to define and regulate disinformation, then I shouldn’t trust Trudeau, Freeland, and Telford to do so. These are big powers we’re talking about.

In the same way, Poilievre will be PM soon, barring a complete collapse. Those eager to subject Trudeau’s decisions to insanely stupid judicial review should remember that if you win we will take your mind-bendingly stupid precedent and use it to destroy his entire legislative agenda. And it will make a complete mockery of our country, which is why this cannot be allowed to stand.

The Federal Court royally fucked up by giving this prorogation idiocy a platform. The best we can hope for now is a unanimous decision ripping the plaintiffs to shreds. If we get anything less we will be destroying our constitutional order for the sake of it, and allowing every future Prime Minister to be undermined. For the love of God get your heads out of your asses.