Prorogation and Parliamentary Accountability:

A Comparative Analysis of the New Westminster Case and the Current Canadian Supreme Court Dispute

The New Westminster case marked a significant moment in constitutional law by affirming that prorogation, though a recognized executive power, is justiciable when used to undermine parliamentary accountability. The court ruled that prorogation cannot be exploited to evade scrutiny, as it threatens the democratic foundation upon which the parliamentary system rests. This decision reinforced the importance of maintaining a balance between the executive and legislative branches, ensuring that no branch of government operates beyond its constitutional boundaries.

In the current Supreme Court of Canada case, the government contends that the New Westminster precedent is inapplicable due to Canada's distinct constitutional framework. They argue that Canada's parliamentary system, while influenced by the Westminster model, has evolved with unique legal traditions and precedents that distinguish it from the UK. The government asserts that prorogation is a political tool, exercised by the Prime Minister with the Governor General's assent, and thus falls outside the scope of judicial review. This position is supported by the principle of non-justiciability in political matters, as discussed in *Canada (Prime Minister) v. Khadr*, where the Supreme Court held that certain executive decisions, particularly those involving foreign affairs, are beyond the reach of judicial intervention.

However, opponents argue that Canada's constitutional parliamentary democracy is inherently rooted in the Westminster model, where the rule of law is paramount. They contend that allowing unchecked executive power to prorogue Parliament undermines the very essence of democratic governance. The New Westminster case demonstrated that judicial oversight is not only permissible but necessary when executive actions threaten parliamentary accountability. This principle is equally relevant in Canada, where the Constitution serves as the supreme law, mandating that all governmental actions adhere to legal standards. The applicants draw parallels to the UK Supreme Court's decision in *R (Miller) v. The Prime Minister*, which emphasized that prorogation that frustrates or prevents the ability of Parliament to carry out its constitutional functions without reasonable justification is unlawful.

The current case raises broader questions about the scope of judicial review in Canada's constitutional framework. While the government fears that judicial intervention in prorogation could set a problematic precedent, opponents argue that the judiciary's role is to prevent potential abuses of power, especially when democratic accountability is at stake. This tension reflects the ongoing debate over the separation of powers and the appropriate limits of executive authority. In *Operation Dismantle v. The Queen*, the Supreme Court acknowledged that while certain executive decisions are beyond judicial scrutiny, courts have a duty to ensure that governmental actions comply with the Constitution, particularly when rights and democratic principles are implicated.

Furthermore, Canada's status as a constitutional parliamentary democracy means that all governmental actions must comply with the rule of law, which serves as the cornerstone of its legal and political system. Judicial oversight ensures that the executive remains accountable, particularly when its actions have significant implications for parliamentary democracy. The parallels between the New Westminster case and the current Canadian dispute underscore the necessity of maintaining this accountability. The Supreme Court's decision in *Reference re Secession of Quebec* highlighted that constitutional conventions, while not legally enforceable, play a crucial role in maintaining the democratic framework, and courts may consider them when interpreting constitutional principles.

In conclusion, the New Westminster case serves as a compelling precedent for judicial intervention when prorogation is used to avoid parliamentary scrutiny. Canada's constitutional parliamentary democracy, with the rule of law as its cornerstone, necessitates that no branch of government operates beyond constitutional limits. As the Supreme Court deliberates on this case, its decision will not only clarify the boundaries of prorogation but also reaffirm the role of the judiciary in safeguarding democracy in Canada. The outcome will have profound implications for the balance of power between the executive and legislative branches and the preservation of democratic accountability.

*Note: The above analysis references Canadian case law to provide a more detailed examination of the legal arguments surrounding prorogation and parliamentary accountability.*

Side Note: What are Constitutional Conventions?

Constitutional conventions are unwritten rules or practices that have developed over time and are accepted as binding by those who operate within a constitutional framework. While they are not legally enforceable in courts, they are essential for the proper functioning of government. In Canada, constitutional conventions guide how political actors, such as the Prime Minister, Cabinet, and Governor General, exercise their powers.

For example, there is no written law that the Prime Minister must resign if they lose the confidence of the House of Commons, but it is a well-established constitutional convention that ensures democratic accountability. Similarly, the Governor General, though holding formal powers, conventionally acts on the advice of the Prime Minister, maintaining the principle of responsible government.

In the *Reference re Secession of Quebec* (1998), the Supreme Court recognized that constitutional conventions, despite lacking legal enforceability, shape political practices and ensure stability and democratic governance within Canada’s constitutional system.