“Canada” Began in 1791: A Critique of the Government’s “Canada at 150” Campaign


Dorchester-9-Online

I’m very grateful to Christopher Champion and John Robson for having edited my piece and published it in the Dorchester Review as “1791: The True Birth of Canada.”

Introduction

Since coming into office on 6 February 2006, the Harper government has engaged in high-profile campaigns to commemorate important events in Canadian history, such as the 400th anniversary of Quebec City’s founding in 2008 and the 200th anniversary of various battles of the War of 1812 in 2012, 2013, and 2014. The government has also endured criticism for not having celebrated the 30th anniversary of the Constitution Act, 1982 (and the Charter in particular) in 2012 and for having ignored the 50th anniversary of the adoption of the Maple Leaf Flag on 15 February 2015. And the Government of Canada has now launched a campaign to celebrate the sesquicentennial of Confederation on 1 July 2017, called “Canada at 150.” Drawing on some of the lyrics to O, Canada, the Government proclaims on its official website, canada150.gc.ca:

Canada 150 (1867-2017): Strong. Proud. Free.

In 2017, Canadians across the country will celebrate Canada’s 150th anniversary. The Government of Canada invites Canadians to learn more about the major events that have shaped their country’s history and express their pride in everything that Canada represents – a strong, proud and free nation.[1]

The Government’s profile on Twitter echoes the theme under the handle “Canada150th”, as does its Facebook profile, “Canada’s 150th Anniversary.” While the website does contain some references to “the milestones on the road to the 150th anniversary of Confederation,”[2] most of the Government’s communications products emphasize 2017 as the sesquicentennial of Canada itself and not more accurately as the sesquicentennial of Confederation.

In fact, “Canada,” as in the Canadian State, dates back to the Constitutional Act, 1791, when the Westminster Parliament first established the Crown colonies of Upper Canada (now Ontario) and Lower Canada (now Quebec) and their respective legislatures and executive governments. Through the Act of Union, 1841, the Westminster Parliament amalgamated the two Canadas into the United Province of Canada; finally, through the British North America Act, 1867, the Imperial Parliament re-organized three Crown colonies – the United Province of Canada, New Brunswick, and Nova Scotia – into a new federal Crown colony called the Dominion of Canada. Therefore “Canada’s” sesquicentennial occurred in 1941, and its bicentennial occurred in 1991. In 2017, the Government of Canada ought to commemorate the sesquicentennial of Confederation, but not of Canada itself.

The Continuity of Canada

In 1791, the Imperial Parliament passed the Constitutional Act establishing Upper Canada and Lower Canada as Crown colonies operating under representative government, each having its own legislature and lieutenant governor. It is this polity, established by the Westminster Parliament through the Constitutional Act, 1791 that evolved, in a direct and unbroken line, into the modern Canadian state, a constitutional monarchy now under its own separate Crown of Canada.

While the Maritime Crown colonies had achieved representative government and elections to their respective legislative assemblies earlier (Nova Scotia, 1758, Prince Edward Island, 1773 and New Brunswick, 1784), the system of representative government in the Canadas derives from an act of parliament rather than from executive instruments in the form of instructions to the Governors.[3]

Canadians, to the extent that they know of the Constitutional Act, 1791 regard it as a failure because its institutional framework did not provide for the self-government necessary to a mature and free society, and its inadequacy brought about the Rebellions of 1837 in both Lower Canada and Upper Canada.[4] Nevertheless, it is this polity that the Westminster Parliament established through the Constitutional Act, 1791 that evolved, directly and unbroken, into the modern Canadian state, a constitutional monarchy now under its own separate Crown of Canada.

In light of Lord Durham’s report on the Rebellions of 1837, including his controversial recommendation that the French-Canadians be assimilated into Anglo-Saxon culture through the political institutions, the Westminster Parliament re-organized Upper Canada and Lower Canada into one Crown colony, the United Province of Canada, through the Act of Union, 1840. Ironically, unifying the two Crown colonies produced the exact opposite effect: rather than forcing the French-Canadians in the former Lower Canada, or Canada East, to assimilate into English-speaking culture, the United Province of Canada necessitated a political culture of consociationalism and elite accommodation between equivalent English- and French-speaking political parties and even produced a dual or co-premiership, with one English-speaker and one French-speaker heading each Ministry.

Furthermore, the British grant of Responsible Government in 1848 amounts to far more significant constitutional reform than the re-organization of the British North American Crown colonies a federal Crown colony upon Confederation in 1867, and the principles of Responsible Government in Canada have remained intact since. The Constitutional Act, 1791 marked the establishment of Representative Government in Canada, and, in accordance with Colonial Secretary Earl Grey’s letters and instructions, Lord Elgin implemented Responsible Government in the United Province of Canada after the general election of 1848 when he appointed Baldwin and Lafontaine, whose Ministry could command the confidence of the assembly. With respect to its institutional infrastructure, the Dominion of Canada is also the direct successor state to the United Province of Canada: the Parliament, Governor General, political executive, and civil service of the United Province of Canada became the Parliament, Governor General, political executive, and civil service of the Dominion of Canada on 1 July 1867.

The legislature of the United Province of Canada voted in 1858 to establish Ottawa as its capital. On 1 July 1867, the parliament buildings in Ottawa that once housed the Legislative Assembly and Legislative Council of the United Province of Canada became the House of Commons and Senate of the Dominion of Canada. The Library of Parliament also transferred from the United Province of Canada to the Dominion of Canada, as did its chief librarian, Alpheus Todd. Viscount Monck became Governor General of British North America on 2 November 1861 and served in that role until the United Province of Canada became the Dominion of Canada; Queen Victoria issued him a new commission on 1 July 1867, and he served as the Governor General of Canada until 14 November 1868.[5] Sir John A. Macdonald had served as Prime Minister of the United Province of Canada in three non-consecutive terms between 1856 and 1867. His last term began on 30 May 1864. Governor General Monck appointed Macdonald as the first Prime Minister of the Dominion of Canada on 1 July 1867; because the Queen’s business must go on, the first duty of the Governor is to ensure that there is a duly-constituted government in place. The first federal general election of the Dominion of Canada took place from August to September 1867, and Macdonald’s and Cartier’s Liberal-Conservatives won a parliamentary majority. With good reason, therefore, Alpheus Todd argues that Macdonald’s Ministry began not on 1 July 1867 but upon his previous appointment as Premier of the United Province of Canada on 30 May 1864.

Upon the confederation of the British North American provinces in 1867, Sir John A. Macdonald was appointed Premier (his ministry having already been in existence in the Province of Canada for three years); and he continued as prime minister until November 5, 1873, when the Mackenzie administration was formed. […] In 1878 Sir John A. Macdonald returned to power, bringing with him most of his former colleagues, and remained in office until death removed him on June 6, 1891, having but one change of ministry in twenty-seven years.[6]  

Finally, Confederation did not mark Canada’s emergence as a sovereign state. In 1867, the Dominion of Canada remained as much of a colony of the British Crown as had the United Province of Canada from which it inherited its legal and political infrastructure. Neither the United Province of Canada nor the Dominion of Canada had international legal personality and control over its defence and diplomacy. Not until the Statute of Westminster, 1931 and the emergence of the Crown of Canada as a separate legal person in the 1930s, particularly through the Royal Tour, Seals Act, and separate declaration of war in 1939, did Canada become truly sovereign and gain a distinct international legal personality.

In short, Canadian history does not lend itself to the Romanticism of grand ruptures, bold declarations, or pitched battles against its mother country. And to the extent that it does, Canadian history turns on 1848 with the grand of Responsible Government – not upon Confederation in 1867.[7] Canadian history is, in the main, political history, and this is why it has gained a popular reputation of being “boring.” There are no pitched battle cries that forged a nation out of turmoil of bloodshed; we lack the grandeur of French and American history precisely because Canada’s history does not flow from political Romanticism or a revolutionary ethos.

George Brown, Father of Confederation, best articulated the true significance of Confederation and Canada’s evolutionary political culture. He remarked in the debates on Confederation that the reorganization of the British North American colonies into a federal union – through peaceful and legal-constitutional means – represented a significant achievement in history because other countries resorted to civil war and revolution in order to achieve comparable aims:

And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away forever. We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel or armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy. We are striving to settle forever issues hardly less momentous that those that have rent the neighbouring republic and are now exposing it to all the horrors of civil war.[8]

Conclusion

The difference between celebrating the sesquicentennial of Confederation and celebrating the sesquicentennial of Canada itself might sound like a pedantic semantic debate, but it is in fact crucial and hinges upon an understanding of when Canadian history and the Canadian State began. “Canada at 150” implies that Canadian history begins in a French Revolution-style Year Zero of 1867 and that anything “BC” – before Canada – that antedates Confederation is “British” or “Imperial” and therefore ought to be filed under forgotten and treated as a shameful anachronism. Ironically, the Harper government has adopted the language of neo-nationalists who seek to relegate Canada’s British inheritance to a mere curiosity and historical vestige in an anti-monarchist teleology.[9] Through the same rationale, Parliament in 1982 purged Dominion Day from Canadian history and sanitized it into the prosaic and tautological “Canada Day.”[10] “Canada” existed before July 1, 1867 – but the Dominion of Canada did not.

We ought to celebrate the Sesquicentennial of Confederation in George Brown’s terms in 2017, and we would do well not to conflate Confederation with Canada itself. And the Harper government in particular ought to know better, because it generally opposes the Liberal neo-nationalism of the 1960s.

“Confederation at 150” would be a more accurate slogan because we are celebrating the sesquicentennial of Confederation, when the United Province of Canada became the Dominion of Canada and reorganized the existed Crown colonies into a federation, and not the sesquicentennial of “Canada” itself.

Similar Posts:

[1] Canada, Department of Canadian Heritage, “Canada 150.” http://canada150.gc.ca/eng/1342792785740/1342793251811 [accessed, 15 March 2015].
[2] Canada, Department of Canadian Heritage, “Canada 150 – Road to 2017 – Milestones” http://canada150.gc.ca/eng/1359662086503/1359989806481 [accessed 15 March 2015].
[3] Janet Ajzenstat, “Celebrating 1791: Two Hundred Years of Representative Government,” Canadian Parliamentary Review (Spring 1991): 26.
[4] Ibid.
[5] United Kingdom, Foreign Office, “Draft of a Commission Appointing Viscount Monck the Governor-General of Canada,” 24 May 1867.
[6] Alpheus Todd, Parliamentary Government in the British Colonies, 2nd Edition (London: Longmans, Green, and Co., 1894), 62-63. In that case, Todd used 1864, and not 1867, as his point of reference, since 1891 minus 27 years is 1864.
[7] Barbara Messamore, 1847-1878: Canada’s Governors General – Biography and Constitutional Evolution (Toronto: University of Toronto Press, 2006), 47.
[8] Janet Ajzenstat et al., editors, Canada’s Founding Debates (Toronto: University of Toronto Press, 1999), 14. I thank Nicholas A. MacDonald for having brought George Brown’s speech to my attention as well as for having shared his thoughts on the significance of Confederation.
[9] C.P. Champion, The Strange Demise of British Canada: The Liberals and Canadian Nationalism, 1964-1968 (Montreal-Kingston: McGill-Queen’s University Press, 2010), 3-15.
[10] James Bowden, “From Dominion Day to Canada Day: Historical Significance to Banality,” Parliamentum, 2 July 2014. http://parliamentum.org/2014/07/02/from-dominion-day-to-canada-day-from-historical-significance-to-banality/

Posted in History of British North America | 2 Comments

The Mandate Problem: Early Dissolutions and Fixed-Date Election Laws in Prince Edward Island and Alberta


Wade MacLauchlan

Introduction

This week, Premier Wade MacLaughlan of Prince Edward Island and Premier Jim Prentice of Alberta joined Prime Minister Stephen Harper, Premier Kathleen Wynne, and former Premier Pauline Marois as the four and fifth first ministers, respectively, in exposing the futility of Canada’s model of fixed-date election law, which preserves the Crown’s authority over dissolution.

These five first ministers all advised and received early dissolutions when their governments still possessed the confidence of their assemblies. Harper, Marois, and Wynne headed single-party minority governments in hung parliaments. But MacLaughlan and Prentice have broken new ground: both were appointed as premiers mid-parliament, both lead single-party majority governments, and both advised early dissolution of majority parliaments within a few months of their appointment in order to “seek their own mandates”, as the saying goes, and consolidate their own political power over their parties, cabinets, and the legislative assemblies of their provinces.

In effect, MacLaughlan and Prentice have adhered to the principle contained in Newfoundland & Labrador’s unique fixed-date election law, which requires a new premier appointed mid-parliament to advise early dissolution under some circumstances, as described here.

Prince Edward Island

On 13 November 2014, Robert Ghiz announced that he planned to resign as both Leader of the Liberal Party and Premier of Prince Edward Island as soon as the party selected his successor.[1] Unlike Premier Redford of Alberta and Premier Dunderdale of Newfoundland & Labrador, Ghiz seems to have left on his own accord; rather than resigning abruptly and forcing the party to select an interim leader, Ghiz stayed on during the transition. The Liberal Party of Prince Edward Island acclaimed Wade MacLaughlan as leader on 21 February 2015.[2] The Lieutenant Governor then appointed him as Premier on 23 February 2015.[3] MacLaughlan in turn advised his superior to dissolve the legislature and issue writs for a “long-expected spring election” on 6 April 2015.[4]

The Guardian, the Island’s main newspaper, didn’t seem to object to the early election.[5] The CBC reported nonchalantly that MacLaughlan had decided not to abide by the fixed calendar – but I hesitate to call its tone “matter of fact” because the following passage contains some curious factual errors.

Fixed election-date legislation had set the next provincial election for Oct. 5, but an earlier date comes as no surprise. A spring election call was set up when Robert Ghiz announced his resignation as premier in November, pending the selection of a new Liberal leader.

MacLauchlan was named leader on Feb. 21 and sworn in as premier two days later. Few expected he would wait until October to attempt to win his own mandate.[6]

Originally, Prince Edward Island’s next general election was scheduled to take place in October 2015. However, the Legislature of Prince Edward Island passed an amendment to its fixed-date elections law in 2014 that would delay the scheduled provincial general election from October to the following April if a federal general election were also scheduled for October.[7] PEI’s legislature thus passed a law similar to those of Manitoba and Saskatchewan, which were also designed to prevent a federal general election and provincial general election from ever coinciding or overlapping. Since the next federal general election is still scheduled for October 2015, Prince Edward Island is holding its provincial general election fully one year earlier than scheduled and not 6 months in advance!

In the legislative debates that preceded the passage of this amendment, former Premier Robert Ghiz also stated very clearly that he reserved the right to advise an early dissolution at any time before the scheduled date. Ghiz threatened that he might decide to advise an early dissolution if the Opposition dared him to do so, as Stockwell Day unwisely taunted Prime Minister Chretien in 2000:

There could be a new leader who gets elected a says: ‘I’m challenging that […] the current Premier to an election right now.’ I have the prerogative to say: ‘There’s a new leader in place, and they want to go to the polls, we want to go to the polls.’ I’ll go see the Lieutenant Governor.[8]

Ghiz concluded that he would probably stick to the timetable for the next fixed-date election but that he would “always keep [his] options open.”[9]

MacLaughlan kept his options open as well.

Alberta

Premier Jim Prentice surprised no one by advising the Lieutenant Governor to dissolve the 28th Legislature on 7 April 2015. He wasn’t exactly subtle in the lead up; the previous evening, he even issued a press release that he would make a “major announcement” the following morning.

In fact, Premier Jim Prentice had been preparing himself for the last few months to advise an early dissolution so that he can obtain a mandate from Albertans on his government’s upcoming budget. More generally, Prentice will also seek a mandate for himself because the Lieutenant Governor appointed him mid-parliament after a furore surrounding Premier Redford.

Prentice has stated, correctly, that he retains the authority to advise the Lieutenant Governor to call an early election. He told iPolitics:

 We do need an election eventually. In the legislation that we have in place, there needs to be an election by the window of March of 2016. The legislation does permit an earlier date. Clearly when that provision was put in place, no one contemplated the financial situation we’re in now. […]

I think Albertans need to have a say in that, I think they need to be consulted. […] It would be irresponsible to not give them the final say in terms of whether they agree with that or not. I’ve not chosen when an election will happen but I do think a premier and a government facing these kinds of exigent circumstances needs to have the strong support of Albertans.[10]

Echoing David Onley, Donald Ethell, the Lieutenant Governor of Alberta, has explained the established constitutional position on dissolution: he acknowledged that he would be bound to accept the advice of a premier whose government commands the confidence of the legislative assembly and that the premier takes responsibility for the political decision to hold an early election:

I’m the one who’s got to sign off on the Order in Council and I would think that it would be represented by the premier as having the confidence of the house. If he has the confidence of the House, then I really don’t have any argument with that.

[Albertans] just want the government to get on with business so if that means dissolving and going for an election then so be it, but that’s a political decision, not mine.[11]

The CBC reported on Prentice’s decision to cut short the life Alberta’s legislative assembly by one full year as follows, clearly not perturbed by the early dissolution:

Fixed election-date legislation had set the next provincial election to be held no later than the spring of 2016, but an earlier date comes as no surprise. Over the past weeks, Prentice has continued to say he needed a mandate to put this year’s budget into action.[12]

The Edmonton Journal merely noted that this provincial general election is taking place “one year earlier than expected.”[13]

Conclusion: Early Elections for Premiers Appointed Mid-Parliament

In terms of the media coverage, journalists have demonstrated yet again their new-found acceptance and acknowledged of the fact that the Canadian model of fixed-date election laws preserves the Crown’s authority over dissolution. However, I suspect that it would suddenly evapourate if Prime Minister Harper advised the Governor General to dissolve this 41st Parliament early.

In reality, all the Canadian fixed-date election laws preserve the established constitutional positions of the Governor and First Minister. They preserve the Governors’ authority to dissolve the legislature earlier than the date of the next scheduled election cycle and thereby also preserve the First Minister’s authority to advise that early dissolution. The law cannot drive a wedge between the Governor and First Minister. The law cannot limit the authority of the First Minister without also necessarily limiting the authority of the Governor, because the First Minister derives his authority as First Minister, i.e., role of the Crown’s primary constitutional adviser, by virtue of the Governor’s commission of appointment and confidence in him. In other words, the office of premier derives its authority and existence from the Crown, and the First Minister and Cabinet, the Ministry, exercise their executive authority in the name of and on behalf of the Crown. The office of premier only exists by uncodified convention because the Crown exists under the codified Constitution Acts.

Only a constitutional amendment passed pursuant to section 41(a) of the Constitution Act, 1982 – the unanimity formula – could eliminate the Crown’s authority over dissolution and create true fixed-term parliaments. And this is precisely why all the Canadian fixed-date election laws incorporate non-derogation clauses that preserve the Crown’s authority over dissolution. As such, the fixed-date election laws have succeeded only in limiting the maximum life of the legislature from five years to four years — except in Manitoba, Saskatchewan, and Prince Edward Island, where the legislature would last four and one-half years under some circumstances. The Constitution Act sets the maximum at five years, but a statute law can exceed the baseline standard established in a constitutional provision; in this case, exceeding the baseline means shortening the life of the legislature.

Under Responsible Government, ministers of the crown take responsibility for all acts of the Crown, which includes dissolution and drawing up the writs of election. As Forsey and Eglington showed, Responsible Government is a “trinity – three responsibilities in one.”[14] The First Minister must maintain the confidence of the Governor, which the latter gives by appointing the former and continuing to implement his constitutional advice. In addition, the Ministry must establish and maintain the confidence of the assembly and maintain solidarity within itself (collective ministerial responsibility), and each individual Minister takes responsibility for his own portfolio (individual ministerial responsibility). The Governor does possess the authority to reject a First Minister’s advice to dissolve the legislature. However, if the Governor rejects such constitutional advice, he thereby either dismisses the First Minister, or forces him to withdraw his advice (which is difficult in the case of dissolution), by withdrawing his confidence and commission of authority to govern from him. A First Minister can only take responsibility for advice that he tendered to the Governor, not the opposite of that advice. The Governor’s first duty is to ensure that there is always a duly-constituted government in office because Her Majesty’s Government and business must carry on; therefore, if the Governor dismisses one First Minister and ministry, he has to appoint a new First Minister and ministry which will accept responsibility for his dismissal of their predecessors and refusal to dissolve the legislature.

But in a majority parliament, the Governor is bound to accept the advice of a First Minister to dissolve the legislature early because there is no alternative government that could take responsibility for the Governor’s dismissal of the First Minister who tendered that advice of early dissolution and a new general election. Such was the case in both Prince Edward Island and Alberta, where the MacLaughlan government and the Prentice government, respectively, both commanded overwhelming parliamentary majorities.

MacLaughlan and Prentice raise another interesting question: should premiers appointed mid-parliament “seek their own mandates” through early dissolution? Is there something intrinsically “democratic” about this endeavour? I would say not in these cases. Sometimes early dissolution is justified, but there is nothing at all exceptional about a premier or prime minister appointed mid-parliament – in fact, it is the necessary standard operating procedure for most intra-party transfers of power from one ministry to another. Only when another party or coalition of parties wins a parliamentary majority in the general election does the inter-party transfer of power takes place outside the life of a parliament. Both Alberta and Prince Edward Island were scheduled to hold their next general elections in the spring of 2016, only one year from now, both the MacLaughlan and Prentice governments were supported overwhelming parliamentary majorities, both governing parties would probably win a general election whether it were held now or one year from now – and holding general elections has become increasingly more expensive. One recent counter-example to MacLaughlan and Prentice is Premier Christie Clark. In British Columbia, the Lieutenant Governor appointed Christie Clark as premier on 14 March 2011 mid-parliament; the next scheduled general election took place in May 2013, as planned. Contrary to all expectation and public opinion polling at the time, Clark led the BC Liberals to a parliamentary majority and thus “won her own mandate,” but without incurring additional cost to the treasury. This is reasonable and sensible. After all, in a parliamentary system, we elect members, not prime ministers.

Similar Posts:

[1] CBC News, “PEI Premier Robert Ghiz Announces Resignation,” 13 November 2014 [accessed 8 April 2015].
[2] CBC News, “Wade MacLaughlan Confirmed as P.E.I. Liberal Leader,” 21 February 2015. [accessed 8 April 2015].
[3] CBC News, “P.E.I. Election Called for May 4: Premier Wade MacLaughlan Calls Long-Expected Spring Election,” 6 April 2015 [accessed 8 April 2015].
[4] Ibid.
[5] The Guardian, “Election Buzz Rife in Prince Edward Island,” 6 April 2015; The Guardian, “It’s Official: Islanders Go to the Polls May 4th,” 6 April 2015.
[6] Ibid.
[7] Prince Edward Island, Legislative Assembly. An Act to Amend the Election Act. Bill 34, 64th General Assembly, 4th Session, 2014.
[8] Premier Robert Ghiz, [“Orders of the Day (Government)”] in Prince Edward Island, Legislative Assembly. Hansard, 64th General Assembly, 4th Session, 4 April 2014 (Charlottetown, Prince Edward Island Legislative Assembly, 2014), 1013.
[9] Ibid.
[10] iPolitics, “‘We’ll Get Through This’ – Jim Prentice in Conversation,” 8 March 2015. http://www.ipolitics.ca/2015/03/08/we-will-get-through-this-jim-prentice-in-conversation/
[11]
Matt Dykstra, “Alberta’s Lt-Gov. Donald Ethell Talks About Budget 2015, Looming Election,” Edmonton Sun, 9 March 2015. http://www.edmontonsun.com/2015/03/09/albertas-lt-gov-donald-ethell-talks-about-budget-2015-looming-election
[12]
CBC News, “Alberta Election 2015: Ballots to Be Cast on May 5th,” 7 April 2015.
[13] Karen Kleiss and Mariam Ibrahim, “Alberta Kicks Off Campaign After Early Election Call: We Go To Polls May 5th,Edmonton Journal, 8 April 2015.
[14] Forsey and Eglington 1985, 18-19.

Posted in Crown (Powers and Office), Dissolution, Fixed Elections, Reform | 1 Comment

The People’s Republic of Alberta: Alberta’s Very Unparliamentary Style of Politics


Premier Prentice

The American Custom of Press Conferences and Opposition Responses

Former British Prime Minister Margaret Thatcher once explained to an American audience on C-SPAN what differentiated a Westminster parliamentary system from the American presidential system. At 21 minutes into the interview, Brian Lamb asked former Prime Minister Thatcher what she thought of President George H. W. Bush’s routine of holding press conferences once per week. (Incidentally, none of his successors has been so open to the press.) Thatcher noted, “Well, he doesn’t go down to parliament to answer questions [once a week], which I do twice a week.”[1] She continued:

In our system, we couldn’t have done it the way you did. In our system, if I had given a press conference, then the leader of the opposition would have given one, and that would have followed the next day, and then the other parties would have given one, and that would have followed the next day. You have a system that once the president is the president, there is no leader of the opposition. There is no kind of ‘president-in-waiting,’ and I think the fact that we have an opposition which is always an alternative government makes it very different. We’re available to the press for interviews from time to time. But you don’t want to over-do it.[2]

Thatcher so ably explained and articulated the principle features and virtues of Westminster parliamentarism, from the Prime Minister’s weekly audiences with the Queen and how liberty is best served by separating a head of state from a head of government into two offices, to the confidence convention, to the importance of loyal opposition, and why proper parliamentary debate and Prime Minister’s Questions are integral to Responsible Government. More importantly, Thatcher showed why all these features of Westminster parliamentarism – particularly loyal opposition and how the opposition holds the government to account in the assembly – are inextricably bound up with one another in as part of an organic whole.

In a parliamentary system under Responsible Government, the government and opposition both reside within the assembly. The Ministry is responsible all acts of the Crown and must retain the confidence of the assembly in order to continue governing. Ministers introduce government policies in the assembly, and the opposition raises questions about and offers alternatives to them in the assembly. Through parliamentary privilege, members enjoy absolute freedom of speech in the chamber and immunity from charges of defamation. Ministers must prepare answers to the questions that opposition members are likely to ask, but the debates retain some spontaneity and put the government and the opposition on an even footing. The proceedings of the Legislative Assembly of Alberta are televised, so Albertans can judge the merits of the government’s plan without being subjected to an expensive and scripted televised address.

In contrast, the American presidential system relies on a strict separation of powers between the executive and the legislature, and voters elect each branch separately. The president does not depend upon commanding the confidence of Congress. The US Constitution entrenches this strict separation of powers through the Emoluments Clause, which prohibits members of Congress from holding any executive office, such as the cabinet, and likewise prohibits any executive officer from sitting in Congress. As such, the Emoluments Clause prevented cabinet government from ever evolving in the United States. Congress can summon executive officers and compel them to testify, but in those hearings, congressional representatives and executive officers are not on equal footing. Those executive officers are answerable to Congress but accountable to the President. They have to hold the confidence of the President but not the confidence of Congress.

As Margaret Thatcher suggested to Brian Lamb, press conferences variously held by the president and the congressional leadership serve as the closest equivalent to Question Time in the United States – but journalists, and not elected representatives, pose the questions, and the president and congressional leaders are not required to hold the press conferences in the first place. The president and the congressional leadership react and respond to one another’s press conferences through the intermediary of the press, but they don’t debate and question each other directly. Members of Congress are also limited in what they can say during press conferences or interviews outside the House or Senate chambers themselves because, like Canadian parliamentarians, they enjoy parliamentary privilege and freedom from being charged with defamation only when they speak in the chamber.

In addition, the President’s State of the Union Address is roughly equivalent to the Speech from the Throne. A custom or convention has emerged in the United States where the television networks broadcast the President’s State of the Union, wherein he lays out policies that he asks Congress to consider, and then broadcast a “response” from the party that does not hold the White House. (I go into more detail on this custom here). The President’s State of the Union and the opposition response are both scripted.

Jim Prentice’s Televised Address to “the People of Alberta”

On 24 March 2015, the networks in Alberta adopted this American system of televising a scripted speech from the government and a scripted response from the opposition. Premier Prentice, leader of the Progressive Conservative Party of Alberta, outlined his government’s upcoming budget, and David Swann, leader of the Alberta Liberals, submitted a scripted video wherein he criticized the Prentice government’s previous policies, but not the budget that he had not yet seen. The Government of Alberta paid for both these videos for a total cost of over $100,000. [3] The Wildrose Party – still the Official Opposition – opted to upload its “response” to YouTube for free rather than allowing the Government of Alberta to spend $29,000 on its response. Wildrose officials also told the Calgary Herald that they also refused the Government’s offer to finance their “response” video because they “wouldn’t know the contents of [Prentice’s] speech” and thus could not respond to any specific points that Prentice raised.[4]

Premier Prentice, Leader of the Progressive Conservative Party of Alberta

Dr. David Swann, Leader of the Alberta Liberals

Heather Forsyth, Interim Leader of the Wildrose Alliance

As you can see from these videos, these sterile, scripted television addresses destroy any last vestige of spontaneity from political debate – and preclude parliamentary debate altogether. They start with self-congratulatory soundtracks with the Albertan flag fluttering in the background against an optimistic blue sky – a very clever use of priming the audience to hold favourable views toward Prentice and Swann. But they reduce politics even more to public relations and turn politicians into actors.

The leading man, “Grim Jim” Prentice, as if he was channelling President Franklin D. Roosevelt’s fireside chats, sat down on a table with solemn clasped hands under the false pretense of familiarity; the perfectly positioned flags of Canada and Alberta framed the focus-grouped scene. Prentice told Albertans that only he – with a new electorate mandate in a new parliament – could save the province from financial ruin. Prentice presumptuously proposed a “10-year plan,” which would therefore take at least 3 parliaments to implement, since Alberta’s fixed-date election law reduces the maximum life of a legislature to 4 years.

He then had to audacity to pretend that his televised address did not infringe upon the Budget Secrecy Convention. Speaking directly to “The People of Alberta, who have so much at stake,” Prentice stated that the Minister of Finance would table the budget in the legislature and emphasized that he “can’t pre-empt the budget and what will happen in the legislature.” By definition, the very act of making this televised address and outlining the budget pre-empts parliamentary debate. While he spoke in ambiguous, carefully calculated bureaucratic language, he intimated that the upcoming budget would include a healthcare user fee of some kind, though he ruled out establishing a sales tax. Nevertheless, he announced new policies, and he has already stated in various interviews that he would seek a new mandate from Albertans on this upcoming budget and the new policies that it contains.

He concluded his speech with another hallmark phrasing of American folksy politics, declaring, “The fundamentals of Alberta are strong” and praising “the spirit that built Alberta.”

Dr. David Swann, leader of the Alberta Liberals, started his scripted televised address by greeting his “fellow Albertans”. Since he could not possibly have known the content of Premier Prentice’s scripted televised address, he simply laid out the policies that a Liberal government would put forward. He focused mostly on social issues, like education and healthcare, and spending on infrastructure and pledged what would have to amount to hundreds of millions in new spending and new taxes. Like Prentice, he invoked the standard emotive anecdotes about being a grandfather, etc.

Heather Forsyth, then interim leader of the Wildrose Alliance and Leader of the Official Opposition, delivered her “response” to Premier Prentice via a live feed on YouTube and thus avoided charging the Government of Alberta for the costs of producing a televised address and buying airtime. She sounds like a female version of Senator Harry Reid (D-NV).  She criticized the government’s high level of expenditure, wasteful spending and overall inefficiency, and corporate welfare.

This demagogic Albertan Model of televised addresses to “the people of Alberta” draws inspiration from these American customs surrounding press conferences and the President’s State of the Union speech – but it is divorced from the separation of powers of presidentialism. In any case, American Presidents would also never make special televised addresses for something as mundane as a budget. As Margaret Thatcher said, when the first minister gives a press conference or a speech, the other leaders must then scramble for air time and media attention and give speeches of their own. The Americans have adopted this custom because they lack a parliamentary system where the government faces the opposition — the government-in-waiting — in the assembly.

But in a parliamentary system, these press conferences and televised addresses remove public and policy debate from the legislature, where they belong, and make a mockery of Responsible Government and parliamentary privilege alike, because the government can script its statements without facing questioning, and thus shirk responsibility for some of its executive decisions, and because the opposition MPs lack the benefit of freedom of speech and the ability to pose questions directly to government ministers. By relying on this American custom of televised addresses, the party leaders can talk to you, “the people of Alberta,” but they can’t talk to each other — you certainly can’t talk to them.

Contempt of Parliament

Prentice undoubtedly violated the Budget Secrecy Convention by outlining key measures in the upcoming budget outside the legislature. I would go further and argue that Prentice put himself in contempt of parliament. (It would not amount to a breach of parliamentary privilege, however).

Various Speakers of the Canadian House of Commons and provincial legislative assemblies have ruled that budget secrecy merely amounts to a custom and does not fall under the scope of parliamentary privilege, because this custom arose not for the benefit of members, but to encourage stability in financial markets and to prevent insider trading.[5] However, breaching the Budget Secrecy Convention could put a minister in contempt of parliament. Vic Fedeli, Conservative MPP of Ontario, argued:

the intentional advance disclosure of Budget contents outside the House lessens the role of the legislature, deprives it of its ability to discharge its proper functions, and diminishes the respect due to the House.[6]

In 2003, Premier Ernie Eves flagrantly violated the convention by presenting the government’s budget on the property of the Magna International. Speaker Carr ruled on 8 May 2003 that the Eves government had in so doing committed a prima facie contempt of parliament. Carr ruled:

When the government or a member claims that a Budget presentation is needed outside the House well before it happens inside the House in order to communicate directly to the people or because of a perceived flaw in the parliamentary institution, there is a danger that the representative role of each and every member of this House is undermined, that respect for the institution is diminished, and that Parliament is rendered irrelevant. Parliamentary democracy is not vindicated by the government conducting a generally one-sided public relations event on the Budget well in advance of members having an opportunity to hold the government to account for the Budget in this Chamber.[7]

The same principles apply to the Prentice government in Alberta. By presenting the budget outside of the legislature, Premier Prentice has fundamentally undermined and eroded yet further parliamentary government and loyal opposition in the province of Alberta. Premier Prentice should have announced this budget in the Legislative Assembly of Alberta with no additional costs. Instead, the Government of Alberta spent $75,000 so that the Premier could outline his government’s upcoming budget as the leader of the Progressive Conservative Party of Alberta and prime Albertans for the early election that he has been talking up for several months. The opposition parties should have protested Prentice’s dangerous precedent and tabled a motion to hold him in contempt.

Conclusion

A distinct political culture of the Province of Alberta has emerged. It has fused the authoritarian tendencies of presidentialism with the over-lapping legislature and executive and confidence convention of parliamentarism, but it has rejected both the strict separation and independence of executive and legislative powers of presidentialism and the effective intra-cameral opposition between Her Majesty’s Government and Her Majesty’s Loyal Opposition of a parliamentary system.

In December 2014, Premier Prentice re-affirmed and secured the veritable personal union between the leadership of the Progressive Conservative Party and the premiership of the Government of Alberta by co-opting and destroying the Wildrose Alliance, the most effective opposition party that the legislature of Alberta had seen since the early 1990s. Throughout 2015, Prentice has hinted that he would advise an early dissolution of the 28th Assembly in order to seek both a personal mandate for his premiership, which he took on mid-parliament, and a mandate for his government’s budget and new policies that they have adopted in light of low oil prices. Prentice outlined the basic elements in his government’s budget during his televised address and, in my view, committed a prima facie contempt of parliament that makes a mockery of responsible parliamentary government. Since Prentice has already eliminated the most effective opposition and most plausible alternative government, the Progressive Conservative Party of Alberta stands poised to win yet another parliamentary majority in the upcoming general provincial election.

In short, Alberta has evinced the most effective dictatorship in the Western world: the one-party quasi-presidential State. Long live the People’s Republic of Alberta.

Similar Posts:

[1] Until Anthony Blair’s premiership, the British Prime Minister did Prime Minister’s Questions twice weekly, on Tuesdays and Thursdays, for 15 minutes. Blair consolidated the two sessions to one 30-minute PMQ each Wednesday.
[2] Margaret Thatcher, interview by Brian Lamb, CSPAN, 9 March 1991.
[3]
James Wood and Darcy Henton, “Prentice Says Albertans Will Pay New Health Free As Part of Fiscal Plan,” Calgary Herald, 25 March 2015.
[4] Ibid.
[5]
Ontario, Legislative Assembly of Ontario, 40th Parliament, 2nd Session, Speaker’s Ruling, 14 April 2014.
[6] Ibid.
[7] Ibid.

Posted in Loyal Opposition, Parliamentarism v Presidentialism | 2 Comments

Fixed-Date Election Foibles in the Provinces


OldPrentice

Introduction

After the federal general election of May 2011, some provinces found themselves facing the prospect of holding their provincial general elections simultaneously with the federal general election that will occur (presumably still) in October 2015. At the time, Saskatchewan, Manitoba, Ontario, Prince Edward Island, and Newfoundland & Labrador faced what would be, under Canadian norms, a logistical nightmare: amongst Canadian political parties, only the New Democratic Party is fully integrated at the federal and provincial levels, and support for one like party at the federal level does not always translate into support of the like party at the provincial level.

Premier Wynne advised an early dissolution in May 2014, and her Liberals won a parliamentary majority. Therefore, Ontario’s next provincial general election is now scheduled for October 2018 and as of 2014, will not overlap with any federal general election (though this could change). But that leaves the other four provinces in a lurch. Faced with this problem, the legislatures of Manitoba, Saskatchewan, and Prince Edward Island have adopted amendments to their provincial fixed-date election laws such that their provincial general elections would be delayed under the following April if they would have otherwise coincided or overlapped with a federal general election in October. But Newfoundland & Labrador’s legislature never adopted such an amendment.

Finally, Premier Prentice of Alberta is almost certainly going to advise a dissolution of the current legislature one year earlier than the scheduled; Alberta’s fixed-date election law currently mandates that the next general provincial election will occur between March 1 and May 31, 2016.

Newfoundland

Newfoundland and Labrador passed the second fixed-date elections law in Canada in 2004 by amending its House of Assembly Act and Elections Act. [1] It is unique in Canada – and almost certainly unconstitutional, though it is unclear who would have standing in the courts to challenge it as such.

Section 3(1) includes a standard non-derogation clause that preserves the established constitutional position of the Premier and Lieutenant-Governor:

Notwithstanding subsection (2), the Lieutenant-Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit.[2]

Section 3(2) sets the fixed election every second Tuesday in October, starting in 2007. Newfoundland held its second election pursuant to the fixed date in 2011 and scheduled to hold its third in October 2015.

However, the law then adds its unique – and probably unconstitutional – innovation in section 3.1, “Election on change of Premier.” The law could also turn a political issue into a constitutional issue, and potentially even into a constitutional crisis.

Where the leader of the political party that forms the government resigns his or her position as leader and as Premier of the province before the end of the third year following the most recent general election, the person who is elected by the party to replace him or her as the leader of the party and who is sworn in as the Premier of the province by the Lieutenant-Governor shall, not later than 12 months afterward, provide advice to the Lieutenant-Governor that the House of Assembly be dissolved and a general election be held.[3]

This law springs from the view that a Premier appointed mid-parliament should have to “seek his own mandate” from the electorate in an early general election because this is more “democratic.”

In Canadian law, shall is imperative and therefore means must.[4] The law mandates that the Premier advise the Lieutenant Governor to dissolve the Assembly and thus infringes upon the constitutional relationship between the two. A statute law can no more forbid the Premier from advising the Governor to dissolve the assembly than it can force the Premier to advise the Governor to dissolve the assembly. Most interestingly of all, this section 3.1 is not subject to the non-derogation clause of section 3(1), which only applies to section 3(2). Under section 3(1), the Premier may advise an early dissolution, but under section 3.1, he or she must advise an early dissolution. Newfoundland and Labrador’s law therefore preserves the Premier’s discretion to advise an early dissolution, as do all the other fixed-date election laws, but it would prevent a Premier appointed mid-parliament from serving for the remainder of that parliament.

Worse still, the law does not make provision for a Premier and party leader ousted by cabinet or caucus, for a Premier who dies in office, for a Premier who is dismissed by the Lieutenant Governor, or for a Premier who becomes incapacitated.[5] The law could have avoided this ambiguity and the problematic omission of dismissal and death in office by remaining silent on the outgoing Premier and the manner of his or her resignation or dismissal, and instead focus exclusively on the incoming Premier. For instance, the law could have specified that “upon a change in Premier,” the new Premier give certain advice. While this would still be unconstitutional, it would at least maintain the virtue of covering a greater array of possible situations.

On 22 January 2014, Kathy Dunderdale announced that she would resign as Premier of Newfoundland and Labrador. Normally, the outgoing Premier would not formally tender her resignation until after the party had held a leadership convention and elected a new leader. But the Progressive Conservative Party of Newfoundland and Labrador took the unusual step of forcing Kathy Dunderdale’s immediate resignation as party leader, and therefore also as premier, so that the Lieutenant Governor could appoint the Finance Minister, Tom Marshall, as “Interim Premier.” Marshall has indicated that he will only serve as Premier for “a few months,” after which he will resign the leader of the Progressive Conservative Party and the premiership in favour of whomever the party selects as its new leader. That leadership convention, originally scheduled for July 2014, was delayed until September 2014.[6] On 13 September 2014, the Progressive Conservative Party elected Paul Davis as leader[7]; after a transition of 13 days, Marshall resigned, and the Lieutenant Governor appointed Paul Davis as Premier.[8]

Section 3.1 states that a new party leader and premier must advise the Lieutenant Governor to dissolve the legislature within twelve months only if he or she is appointed “before the end of the third year following the most recent general election.” In this case, that timeframe would apply to a premier appointed before October 2014, since the last provincial general election occurred in October 2011 and the next is scheduled for October 2015. But it remains unclear whether the point of reference for this requirement hinges upon Tom Marshall’s appointment on 24 January 2014, or, rather, upon Paul Davis’s appointment on 26 September 2014. Since Tom Marshall served as “Interim Premier” for only 9 months, has Premier Davis inherited those 9 months such that he would have to advise an early dissolution within 3 months of his appointment, or, alternatively, does the timeline for this requirement reset upon his appointment and thus give him 12 months? The answers to these questions remain unambiguous and unclear because this faulty fixed-date election law did not account for all the possible types of transitions from one Ministry to another. Under the first interpretation, Premier Davis would have to advise an early dissolution by January 2015 for an election in February or March 2015. Under the second interpretation, Premier Davis could wait until September 2015 before advising the Lieutenant Governor to dissolve the current legislature – even though the law would have mandated that the next provincial general election take place in October 2015 irrespective of the date of his appointment. If the second possibility is correct, then the procedure under section 3.1 is redundant in this case because it would force the Premier to advise the Lieutenant Governor to dissolve the legislature and call an election on the timetable when the fixed-date election would have occurred anyway. I would posit that the first interpretation is correct, and that Premier Davis must advise dissolution in January 2015 because he inherited this requirement from his predecessor, Tom Marshall; Wikipedia, however, disagrees.[9]

In conclusion, while Newfoundland & Labrador’s fixed-date election law is unconstitutional, it will remain in force unless and until a court recognizes its unconstitutionality and strikes it down as ultra vires of section 41(a) of the Constitution Act, 1982. And as long as the law remains on the books, the Premier must abide by it. But Premier Paul Davis might have already breached this law by failing to advise an early dissolution. And even if Premier Davis has not violated the terms of the act, Newfoundland & Labrador is currently scheduled to hold its next provincial general election in October 2015 concurrently with the federal general election.

Despite all this obvious confusion, the law and its implications have generated little to no discussion on The Rock. At this stage, the legislature of Newfoundland and Labrador should amend its fixed-date election law as those of Manitoba, Saskatchewan, and Prince Edward Island have done. It should also repeal section 3.1, which is at best ambiguous and confusing and at worst is unconstitutional and ultra vires of section 41(a) of the Constitution Act, 1982. If the legislature insists on keeping the provision, it should at least simplify it so that it covers any and all mid-parliamentary changes of government.

Manitoba

Manitoba also passed its law in 2008, and it conforms to the Canadian norm. Section 49.1(1) of its Elections Act contains the non-derogation clause:

Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature at the Lieutenant Governor’s discretion.[10]

In 2012 the Selinger Government introduced a bill to “postpone [the] fixed-date election.” The amended law now prevents any future provincial general election from overlapping with a federal general election:

Despite clause (2)(b), if the election period for a general election to be held in October under that clause will, as of January 1 of the year of the election, overlap with the election period for a general election to be held under subsection 56.1(2) or section 56.2 of the Canada Elections Act, the general election must be held instead on the third Tuesday of April in the next calendar year.[11]

Manitoba pioneered this ad hoc amendment of delaying the provincial general election by six months if it happened to coincide with a federal general election, and Saskatchewan and Prince Edward Island later adopted it. However, Manitoba’s law contains an interesting detail that Saskatchewan’s and Prince Edward Island’s do not.

Manitoba held its last election on 4 October 2011; in the absence of a federal general election, the next provincial general election would occur in October 2015. However, Elections Manitoba announced on 5 January 2015 that the next provincial general election will occur instead on 19 April 2016 because as of 1 January 2015, the next federal general election was still scheduled to occur in October 2015.[12]

The wording of Manitoba’s fixed-date elections law – particularly that clause “as of January 1 of the year of the election” – means that even if Prime Minister Harper decides to advise an early dissolution so that the federal election occurs before than the scheduled date in October 2015, thus preventing the federal general election and Manitoba’s provincial general election from coinciding, Manitoba’s next provincial general election will still occur in April 2016.

Once again, fixed-date election laws have served only to complicate matters. They are worse than redundant: they are, in fact, a general nuisance. In addition, the Legislative Assembly of Manitoba has extended its own life from 4 years to 4.5 years – and thus also helped prop up a beleaguered Premier Selinger, who last year faced the resignation of 5 of his cabinet ministers in a joint press conference and who just narrowly won re-election as leader of the New Democratic Party of Manitoba.

Alberta

Alberta’s fixed-date election law, like Newfoundland & Labrador’s, contains a unique formula – though it remains constitutional. Alberta passed its fixed-date elections law in 2011 with a slight variation to the Canadian model, which would spare the province from the logistical problem of concurrent federal and provincial elections. Section 38.1(1) of its Election Act contains the non-derogation clause:

“Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature, in Her Majesty’s name, when the Lieutenant Governor sees fit.”[13]

Rather than fixing the election on a precise day of the month, section 38.1(2) builds in a flexible date “within a three-month period beginning on March 1, 2012 and ending on May 31, 2012.” Subsequent elections will fall within that range of three months every four years. The next general provincial election is thus scheduled to take place between March 1 and May 31, 2016.

However, Premier Jim Prentice has been preparing himself for the last few months to advise an early dissolution this month, in March 2015, so that he can obtain a mandate from Albertans on his government’s upcoming budget. More generally, Prentice will also seek a mandate for himself because the Lieutenant Governor appointed him mid-parliament after a furore and personal controversy involving Premier Redford.

Prentice has stated, correctly, that he retains the authority to advise the Lieutenant Governor to call an early election. He told iPolitics:

 We do need an election eventually. In the legislation that we have in place, there needs to be an election by the window of March of 2016. The legislation does permit an earlier date. Clearly when that provision was put in place, no one contemplated the financial situation we’re in now. […]

I think Albertans need to have a say in that, I think they need to be consulted. […] It would be irresponsible to not give them the final say in terms of whether they agree with that or not. I’ve not chosen when an election will happen but I do think a premier and a government facing these kinds of exigent circumstances needs to have the strong support of Albertans.[14]  

Echoing David Onley, Donald Ethell, the Lieutenant Governor of Alberta, has explained the established constitutional position on dissolution: he acknowledged that he would be bound to accept the advice of a premier whose government commands the confidence of the legislative assembly and that the premier takes responsibility for the political decision to hold an early election:

I’m the one who’s got to sign off on the Order in Council and I would think that it would be represented by the premier as having the confidence of the house. If he has the confidence of the House, then I really don’t have any argument with that.

[Albertans] just want the government to get on with business so if that means dissolving and going for an election then so be it, but that’s a political decision, not mine.[15]

Premier Prentice will undertake an American-style “address the nation” televised speech this evening in what will necessarily amount to a pre-writ campaign speech and appeal to Albertans to support his government’s upcoming budget.[16] Prentice’s Progressive Conservatives all but destroyed the Wild Rose Party as an effective opposition and alternative government in December 2014, when their former leader, Danielle Smith and several of her colleagues crossed the floor to join the Progressive Conservative Party and the government; he will almost certainly secure re-election with another parliamentary majority this spring.

Conclusion

All of the provincial fixed-date election laws contain the same non-derogation clause preserving the establishing constitutional relationship between the governor and first minister, so theoretically, the media should have criticized Premier Marois and Premier Wynne last year for advising early dissolutions in their respective provinces, and they should be criticizing Premier Prentice for preparing to do the same. But most journalists have hardly mentioned the fixed-date election laws at all, and if they do, they now acknowledge, correctly, that they do not prevent the first minister from advising and receiving an early dissolution.

The Canadian media have thoroughly moved on from their erroneous refrain in 2008 that “Harper broke his own law” when he advised an early dissolution. Even now, I still can’t help but wonder whether the furore that they generated in 2008 was primarily partisan, and I still suspect that a Liberal Prime Minister would not have met the same vociferous criticism – though this is ultimately an unverifiable hypothesis. It is also possible that the highly charged atmosphere of those hung parliaments between 2004 and 2011 prompted the media narrative of the time. At this stage, I’m just thankful for some more neutral and informative coverage of these early provincial elections. But I still think that all the fixed-date election laws should be repealed, since they do nothing substantive except shorten the life of a parliament or legislative from five years to four (or four and one half under some conditions in Manitoba, Saskatchewan, and Prince Edward Island) – and even that measure was unnecessary. Overall, they only complicated matters, and the provinces in particular have shown that legislatures must frantically adopt ad hoc amendments to them in order to prevent political inconveniences.

With the legislatures able to modify or repeal these laws, and the first ministers still able to advise and receive early dissolutions, fixed-date elections are fixed until they are not.

Similar Posts:

 [1] Newfoundland and Labrador, House of Assembly Act, RSNL1990, Chapter H-10.
[2] Newfoundland and Labrador, House of Assembly. An Act to Amend the House of Assembly Act and the Elections Act, 1991, 45th General Assembly, 1st Session, 53 Elizabeth II, 2004.
[3] Newfoundland and Labrador, House of Assembly. Bill 40: An Act to Amend the House of Assembly Act and the Elections Act, 1991, 45th General Assembly, 1st Session, 53 Elizabeth II, 2004.
[4] Interpretation Act, R.S.C. 1985, c. I-21; Ruth Sullivan, Statutory Interpretation (Toronto: Irwin Law, 2007), 73.
[5] John Pepall, Against Reform (Toronto: University of Toronto, 2010), 155.
[6] Globe and Mail, “Newfoundland Tories Re-Start Leadership Contest with September 13 Vote,” 20 June 2014. http://www.theglobeandmail.com/news/politics/newfoundland-tories-restart-leadership-contest-with-sept-13-vote/article19257468/ [Accessed, 24 November 2014].
[7] Sue Baily, “Paul Davis to Become Next Premier of Newfoundland and Labrador,” Globe and Mail, 13 September 2014. http://www.theglobeandmail.com/news/politics/newfoundlands-pc-leadership-vote-heads-to-third-ballot/article20593075/#dashboard/follows/ [Accessed, 24 November 2014].
[8] Sue Baily, “New Newfoundland and Labrador Premier Vows Action on Crime and Mental Health,” Globe and Mail, 26 September 2014 http://www.theglobeandmail.com/news/politics/newfoundlands-new-premier-vows-action-on-crime-mental-health/article20815567/#dashboard/follows/ [Accessed, 24 November 2014].
[9] Wikipedia, “49th Newfoundland and Labrador General Election.” http://en.wikipedia.org/wiki/49th_Newfoundland_and_Labrador_general_election [Accessed, 24 November 2014].
[10] Manitoba, Legislative Assembly. An Act to Amend the Elections Act, 39th Legislative Assembly, 2008
[11] Manitoba, Legislative Assembly. The Election Financing Act and Elections Amendment Act. Bill 33, 40th Legislature, 1st session, 2012.
[12] Elections Manitoba, “Manitoba’s Set Date Election Moves to April 2016,” 5 January 2015.
[13] Alberta, Legislative Assembly. An Act to Amend the Election Act, Bill 21. 27th Legislature, 4th Session, 2011.
[14] iPolitics, “‘We’ll Get Through This’ – Jim Prentice in Conversation,” 8 March 2015. http://www.ipolitics.ca/2015/03/08/we-will-get-through-this-jim-prentice-in-conversation/ [accessed 15 March 2015]
[15] Matt Dykstra, “Alberta’s Lt-Gov. Donald Ethell Talks About Budget 2015, Looming Election,” Edmonton Sun, 9 March 2015. http://www.edmontonsun.com/2015/03/09/albertas-lt-gov-donald-ethell-talks-about-budget-2015-looming-election
[16]Trisha Estabrooks, “Alberta Government Ramping Up Prior to Expected Election,” CBC News, 23 March 2015. http://www.cbc.ca/news/canada/edmonton/alberta-government-ramping-up-prior-to-expected-election-1.3003848

Posted in Crown (Powers and Office), Dissolution, Fixed Elections, Reform | Leave a comment

Which Party Becomes the Official Opposition In the Event of a Tie? Canadian Precedents


Introduction

When I first wrote this entry three years ago, a friend had asked me which party would become Her Majesty’s Loyal Opposition, or Official Opposition, in the House of Assembly of Newfoundland and Labrador if the two opposition parties won precisely the same number of seats in that province’s last general election in 2011. At the time, the Liberals edged out the New Democrats by one seat in order to become the Official Opposition, and the Progressive Conservatives easily won another majority.

As of December 2014, the Legislature of Alberta now finds itself in the same situation. Since Danielle Smith and several of her colleagues have crossed the floor in an unprecedented example of crass self-interest, the remant of the Wildrose Party now has the same number of seats as the Alberta Liberals, and Raj Sherman, leader of the Alberta Liberals, has asked the Speaker to recognize his party as the new Official Opposition.

As the federal and provincial examples below show, incumbency has generally been the deciding factor — except (of course) in the Province of Alberta! But the precedents are mixed because the circumstances of each case were unique. Furthermore, this case is unprecedented and thus whatever decision that the Speaker of the Legislative Assembly of Alberta makes warrants its own distinct rationale, not a rote rendering of the stare decisis doctrine.

Canada

I wrote about Speaker Parent’s Official Opposition Ruling in the 35th Parliament in preparation for an article on the history and evolution of loyal opposition in the Westminster system. While I think that Speaker Parent made the wrong decision for the wrong reasons, he mentioned similar cases in Alberta and New Brunswick in which the Speakers of their respective legislatures had to rule on which parties assumed the role of Official Opposition in the event of ties.

“An equality of seats in the two largest opposition parties should neither deny the members of the Bloc Quebecois their position today as the official opposition nor prevent them from choosing from among their members the leader of the official opposition. Thus the Bloc Quebecois will currently retain its status as the official opposition until a further review of this status is warranted.”

This case came from the 2nd session of the 35th Parliament (elected in 1993), in which Quebeckers elected 54 MPs from the Bloc quebecois, and Westerners elected 52 MPs from the Reform Party. The Bloc quebecois became the Official Opposition — and, in this case, ironically could have been called “Her Majesty’s Loyal Opposition” even though most of those Bloc MPs were anti-monarchists and all of them wanted Quebec to secede from Canada.

By the time that the 2nd session of the 35th Parliament began in 1996, two MPs from the Bloc quebecois had resigned, which meant that the Reform Party and Bloc quebecois each had 52 MPs. In this instance, Gilbert Parent issued a Speaker’s Ruling at the request of the Reform Party and declared incumbency the decisive factor, and thus that the Bloc quebecois would retain its role as the Official Opposition. Presumably, if the Bloc had lost three members, then the Reform Party would have become the Official Opposition.

Saskatchewan

The Legislative Assembly and Executive Council Act of Saskatchewan defines the Official Opposition as such:

‘Leader of the Opposition’ means the member who is designated by the opposition caucus as its leader and who is recognized as leader of the opposition caucus by the Speaker.

Section 63 of the Legislative Assembly and Executive Council Act, shown below, prescribes how the Speaker must recognize a leader of the opposition and means that if two parties in opposition had an equal number of seats, then the two parties would somehow alternate as Official Opposition and their respective leaders would receive the same salaries:

(2) If there is an equality of membership between the two largest caucuses sitting in the Legislative Assembly in opposition to the Government: (a) the salaries provided for by sections 59 and 61 must be added together; and (b) the total derived pursuant to clause (a) must be divided equally between the respective leaders of those caucuses.

The Legislature of Saskatchewan decided to codify this arrangement in law, and thus reduce the discretion of the Speaker, because of a specific incident. Over the course of the 18th Legislature, two Liberal MLAs switched allegiance to the Conservative party, also in opposition, and the Conservatives won two by-elections. After gaining four members, the Liberals and Conservatives held an equal number of seats from 24 June 1977 to the dissolution of the legislature on 19 September 1978. The leader of the Liberal Party, Edward Malone, and the leader of the Conservative Party, Richard Collver, in effect both became the Leaders of the Official Opposition.

Alberta

In 1983, the New Democrats had two seats in the assembly, and there were also two independents in the assembly. The Speaker of the Legislative Assembly of Alberta ruled on which would be recognized as Her Majesty’s Loyal Opposition.

Speaker Amerongen ruled that the assembly would recognize the New Democrats as the Official Opposition because they had won a greater share of the popular vote than the two independent MLAs. In short, he made the right decision, but for the wrong reasons. An electoral political party, even if it does not meet the minimum threshold to be recognized as a parliamentary party, should take precedence over a collection of independent MLAs. In addition, extra-parliamentary considerations like percentage of popular vote should not enter into a parliamentary decision.

“No precedent or rule has been discovered or given to me where the designation of an Office Opposition has been based on circumstances outside a parliament. However, given the need to make such a decision, it does seem advisable that if factors within these four walls do not provide a solution, one must go outside for an answer based on well-known facts.”

The Speaker also rejected incumbency as the deciding factor: “However, no precedent shows that incumbency or continuity has been the deciding factor, or any real factor at all, in recognizing an opposition leader.” In 1983, it was true that no Canadian precedent hinged upon incumbency. But the Speakers of the Legislative Assemblies of New Brunswick and Yukon and of the House of Commons have since ruled that the incumbent party in Official Opposition would retain its status if party standings change in the life of a parliament and produce a tie.

New Brunswick

In December 1994, Speaker Dysart had to issue a ruling in New Brunswick after the Confederation of Regions Party had lost members and tied with the Conservative Party at 6 members each mid-way through the life of the parliament, similar to the circumstances under which Speaker Parent made his ruling in the 35th Parliament.

“Speaker Dysart noted that an organized group of MPs or MLAs (i.e. a party) will receive the nod over a loose collection of independents of the same number. Party status counts because it implies an ability to fulfill the expected role of the official opposition.”

Like Parent, Dysart ruled in favour of the Confederation of Regions Party because of its incumbency. In addition, Dysart adopted the reasoning that should have compelled Speaker Amerongen to rule in favour of the New Democrats in 1983: that a political party should take precedence over a collection of unorganized independents.

Yukon

The Speaker of the Yukon Legislative Assembly had to make a similar ruling on December 9, 1996, but unlike the Canadian and New Brunswick cases, he had to issue his decision directly when the new legislature first sat rather than mid-way through its lifespan.

The Yukon Party and the Liberal Party each won 3 seats in the general election, and the Speaker could not, in this case, rely on incumbency within the life of this same legislature. However, the Speaker did base his rationale on a principle related to incumbency:

“The Chair, then, has determined to make a decision in this matter which reflects the spirit and intent of the House of Commons’ reliance on incumbency as a deciding factor. It is the Chair’s judgment that that spirit and intent is best satisfied by selecting an opposition party caucus which formed the government prior to an election to be the Official Opposition over an opposition party caucus that was a third party in the House prior to the election. That means that the Yukon Party Caucus will be the Official Opposition and that the Member for Porter Creek North will be the Leader of the Official Opposition.”

Conclusion: Alberta in 2014

The ruling from Yukon has no bearing on the current situation in Alberta, because the current iteration of the Alberta Liberals has never formed Government in Alberta, and the previous iteration of the Liberal Party has not formed Government in Alberta since 1921. In other words, the Speaker of the Legislative Assembly of Alberta could not rule on which party shall be recognized as the Official Opposition based on which party had last formed government because neither the Alberta Liberals nor the Wildrose Party have ever formed government in Alberta. In addition, this tie in number of seats between two opposition parties came about during the life of the parliament and not at its beginning.

The previous Speaker’s ruling from Alberta provides a poor precedent for this case as well because it springs from a faulty rationale that the percentage of the popular vote that a party earned should somehow determine whether or not the assembly would recognize it as the Official Opposition if it were tied in standing with another opposition party. Under Speaker Amerongen’s logic from 1983, the Wildrose Party would retain its status as Official Opposition simply because it won a higher percentage of the popular vote in the last general provincial election in 2012.

Under Speaker Parent’s and Speaker Dysart’s rationale, the Wildrose Party would retain its status as the Official Opposition based purely on incumbency and inertia.

But in this instance, Speaker Gene Zwozdesky faces a political situation unprecedented in Canadian history – perhaps even in the history of all the Commonwealth Realms. The Wildrose Party and the Alberta Liberals find themselves tied in number of seats not because of some fluke of by-election victories or deaths of sitting MLAs, but because the Leader of the Opposition, along with several of her colleagues, decided to abdicate her duty, cross the floor, and join the government caucus and cabinet. In a situation without precedent, we should base our decisions not on the stare decisis doctrine but on basic constitutional principles. The Official Opposition is supposed to act as an alternative government and hold the government to account. Smith decided that she could no longer perform the first duty, but she could – and should – have continued to uphold the second. If she could not have upheld the second, then she should simply have resigned as Leader of the Wildrose Party and perhaps even as an MLA. All governments require a legitimate and able opposition to keep them honest and force them to provide an account of their decisions to parliament and to the people. Alberta in particular needs an effective political opposition because this jurisdiction functions as a one-party state – and as in all one-party states, the Government Party and the State become one and the same, and the potential for boundless corruption springs forth.

The leader of the Alberta Liberals, Raj Sherman, has petitioned the Speaker of the Legislative Assembly of Alberta to recognize his party as the Official Opposition now that the Alberta Liberals have the same number of MLAs of the remnant of the Wildrose Party.

Given that Smith has implored the remnant of Wildrose to cross the floor and join the Alberta PCs and the Prentice Government, it is possible that the Alberta Liberals will soon form the largest bloc in opposition anyway. But even if the party standings remain stable, the Alberta Liberals merit the duty more than the Wildrose remnant.

Frankly, Sherman deserves this distinction, and the Speaker should rule in his favour. Danielle Smith has all but destroyed the Wildrose Party as a credible alternative government and has stated in no uncertain terms that she no longer wanted to hold the Government to account – instead, she wanted to join the Prentice Government and will soon collect her coveted seat in his cabinet.

Related Post:

Posted in Loyal Opposition | 7 Comments