Breaking the Fixed Election Date Law

"Fixed election dates will improve the fairness of Canada's electoral system by eliminating the ability of governing parties to manipulate the timing of elections for partisan advantage."

Rob Nicholson, minister for democratic reform, May 30, 2006 (http://www.cbc.ca/canada/story/2007/05/02/fixed-elections.html#ixzz0fWKziN02)

The promise was more fairness, more democracy. However, as confirmed by subsequent action, the actual intent was its very opposite.

In 2006, the Conservative Party of Canada edged into a minority, in part by promising to reform certain “anti-democratic” elements in Canada’s electoral system. Senate reform figured prominently in its campaigning, as did the setting of fixed election dates. Canadians were told that a fixed-date system would address a flaw that had permitted previous prime ministers, sometimes acting alone, to force elections on the public based on nothing more than having a partisan advantage in the polls.

In 2006, in purported pursuit of their promise, the then-new Harper government introduced Bill C-16, An Act to amend the Canada Elections Act, and pushed for its ultimate passage. The Act mandated that federal general elections would be held every four years on the third Monday in October (following polling day for the last general election which, at the time of the amendment, was anticipated to be October 19, 2009). The Act was passed by the House of Commons in November, 2006, and it received royal assent the following May. From Prime Minister Harper on down, Conservative spokespeople (see above quote) assured Canadians that the age of uncertainty, partisanship and arbitrariness was a thing of the past and that everyone could set their election alarms for October, 2009.

What the Conservatives failed to disclose, however, was that under the administration of their own Act, the term, “everyone”, would apply to all except their own party’s leader. Thus it was that on August 27, 2008 — acting unilaterally and entirely at odds with its own legislation — the minority Conservative Government forced an early election on the Canadian people a full 15 months before the date everyone else was instructed to observe. Since the Conservatives were alone in calling for that election (neither the general population nor the other political parties had been seeking one), that call cannot be categorized as anything other than a partisan act — a partisan act running contrary to the widely-proclaimed intent of a law they, themselves, had enacted.

Background:

Canada’s constitution states that Parliament cannot sit for more than five years without an election being called. Within this five-year limit, Prime Ministers are free to choose when they ask the Governor General to dissolve Parliament and call an election. The Governor General would likely be within his or her rights to refuse that request under many circumstances, but doing so would go against long-standing tradition. As well, because the Governor General is appointed and not elected, his or her refusal of a Prime Minister’s request would be controversial, to say the least.

A Prime Minister’s ability to choose the date of the election gives the government an unfair advantage over the opposition parties. The Prime Minister is effectively free to closely monitor the polls and call an election unilaterally when his or her party is clearly in the lead. Whether in the case of a majority or a minority government, the opposition parties enjoy no comparable ability. The closest they can come to it is limited to highly-technical confidence motion situations, only in a minority government situation and only upon obtaining the cooperation of one other opposition party or more, depending on the division of seats in the House at the time. That can be difficult to achieve if one or more of the other opposition parties is suffering in the polls. The opposition’s limited ability to force an election stands in stark contrast to the Prime Minister’s unimpeded prerogative.

Bill C-16, An Act to amend the Canada Elections Act purported to eliminate that lopsided advantage by tying all sides to a fixed election date.

However, embedded in the Act was the wording, “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.” On August 27, 2008, on the strength of a system that thus still technically permitted him to act solely on his own, Stephen Harper took advantage of his continuing ability to ask the Governor General to dissolve parliament and call an election. The Governor General had little choice but to agree, and an election was held on October 14, 2008.
In taking this action, Stephen Harper proved that under his own electoral reforms, a call for an election could have the support of only one Member of Parliament, the Prime Minister, acting with no regard whatsoever for the spirit and the highly publicized intent of the fixed election date law.

The rule of law is critical to maintaining order in a democratic society — in other words, it is critical to one of the three core principles of peace, order and good government mentioned in Canada’s constitution. The “rule of law” means that no one is above the law. Indeed, the “rule of law” implies that the greatest exemplars of the law should be the lawmakers themselves. And, to merit their positions, exemplars are duty-bound to demonstrate an adherence to both the letter and the spirit of the law.

As mentioned above, the purported intent of amending the Act aimed to prevent a sitting Prime Minister from arbitrarily calling an election, the timing of which could be seen to be self-serving. The amendment had admirable optics, but many people observe that Mr. Harper made cynical, opportunistc use of the Act through the other language that gave him the loophole he did eventually use to bring about an election in 2008 (being, of course, the ability to call upon the Governor General to dissolve Parliament).

Mr. Harper may have acted within the letter of the fixed election date law, but we contend that he showed a cynical lack of respect for the rule of law when he contravened the spirit of the fixed election date law—a law introduced and passed by his own government.

Follow us on: