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.

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 [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.

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Posted in Loyal Opposition | 7 Comments

The Delegitimation of the Crown of Canada: Paul Heinbecker’s Argument Against Constitutional Monarchy


The Crown Hurts Diplomacy?

Paul Heinbecker, a former Canadian diplomat and now the Director of Global Relations at Wilfrid Laurier University, contributed a column to the Globe and Mail entitled “The Monarchy Hurts Canada’s Standing in the World. It’s Time To Let It Go” on July 1st – a deliberately auspicious day to advocate the destruction of Canada’s constitutional system and British inheritance. A longer version of Heinbecker’s article, under the strange title “Rethinking Canada’s Place in the Monarchy,” also appears in a new online publication called “Constitution.ca.”[1]

Heinbecker argues that Canada should become a republic in order to improve its standing in the world. He declares from the outset of the longer piece:

Fealty to the British monarchy is an anachronism and a drag on Canadian foreign policy that confuses many and delivers little.

This phrasing, as well as his derisive references to “‘our’ throne,” suggests that Heinbecker believes that the one and indivisible Imperial Crown of the 19th and early 20th centuries still exists, when in reality it has long since multiplied out into a personal union of several Crowns vested in one natural person. The phrasing “Canada’s Place in the Monarchy” also implies that the Crown of Canada is a foreign object from which Canada can detach itself. In order to prove this argument, Heinbecker would have to demonstrate that the United Kingdom has determined Canadian foreign policy throughout the 20th century and that Canada does not possess a separate international legal personality. However, Heinbecker’s own examples in fact prove the opposite position, that the Crown of Canada is a separate legal person from the Crown of the United Kingdom (as part of a personal union) and that Canada therefore does both possess and exercise its separate international legal personality. In the next paragraph, he exalts the Government of Canada’s achievements in foreign affairs, in many of which he played a role. He described his experience in the Foreign Service in positive terms.

Canada was regarded as the most successful country on the planet in integrating foreigners into our society and making diversity a strength, all the while safeguarding the rule of law, protecting the interests of our minorities, albeit with some regrettable lapses with respect to aboriginal Canadians, and promoting progress abroad. As Prime Minister Mulroney’s foreign policy adviser, I saw the high regard with which Canada was held overseas in fighting Apartheid in the Eighties and in promoting German unification in the Nineties, often in conflict with London. As Canadian Ambassador to the UN, I saw the respect Canada enjoyed when Prime Minister Chrétien withstood British (and American) pressure to join in the catastrophic 2003 Iraq war.

Heinbecker thereby undermines the main thrust of his argument. Despite the “anachronism” that “fealty to the British monarch” represents, and despite Canada’s status as a constitutional monarchy, the Government of Canada achieved great accomplishments in its own right as an independent, sovereign country possessing its own international legal personality. In fact, as Heinbecker notes, the Mulroney government and the Thatcher government took different positions on the Apartheid regime in South Africa in the 1980s and opposite positions on German Reunification in 1990 – both despite the fact that the British and Canadian Crowns form part of a personal union vested in Queen Elizabeth II. In other words, the Queen of the United Kingdom (at least initially) opposed German reunification, while the Queen of Canada supported it. In 2002 and 2003, the Blair government supported the Bush administration and joined the “Coalition of the Willing” that invaded Iraq in order to topple Saddam Hussein and spread democracy à la Bonaparte. The Chretien government (wisely, in my view as well) decided that Canada would not participate in this foolish war. As in the previous examples, the contrary positions of the British and Canadian governments reveal the nature of the Personal Union: the Queen of the United Kingdom was at war with Iraq, while the Queen of Canada was not. Heinbecker’s own examples clearly demonstrate that Canada does not pay “fealty to the British monarchy.”

The Crown of Canada and British Colonialism

Heinbecker also argues:

In international relations, fealty to the British monarch delivers us precisely zero benefit in the conduct of Canadian foreign policy and at the same time associates us with a checkered British colonial legacy.

If that case, how on earth did Canada realized those achievements from 1984 to 2003 that he mentioned in the earlier paragraph? Heinbecker cites the legacy of British colonialism and decolonization in Africa, India, and the effects of the Skyes-Picot Treaty of 1916 on the Middle East as examples of British Imperial baggage that somehow hinders the conduct of Canadian diplomacy. But Heinbecker offers no evidence that this legacy has affected Canada’s foreign policy in Africa or India.

Invoking the Sykes-Picot Treaty is particularly bizarre, given that both the British and the French used it to carve out their respective spheres of influence and administration of the crumbling Ottoman Empire. How has Sykes-Picot affected the conduct of Canada’s foreign policy in the Middle East? Perhaps one example comes from the Suez Crisis and Canada’s peace-keeping force. Egyptian President Nasser initially objected to Canada’s participation in the United Nations Emergency Force (UNEF) because “Her Majesty’s British troops were replaced by Her Majesty’s Canadian troops.”[2] Nasser also apparently objected to the Royal Canadian Navy’s White Ensign, which was identical to that of the Royal Navy at the time, and to the Red Ensign, which contains the Union Flag in its canton.[3] (As Prime Minister, Pearson did away with the Red Ensign and replaced it with the Maple Leaf). Despite Nasser’s initial objections, Pearson’s efforts paid off and Canada became known for her peacekeeping efforts throughout the Cold War. And even if this case falls under Heinbecker’s category, focusing on the Crown of Canada misses the larger point that Prime Minister St. Laurent opposed Prime Minister Eden’s disastrous invasion of Egypt under the guise of protecting the Suez Canal; as with those earlier examples, the Queen of the United Kingdom and the Queen of Canada took different positions because each country has a separate international legal personality.

Perhaps Heinbecker is correct. But in order to prove this claim, he would have to demonstrate that Canada’s status as a constitutional monarchy and the personal union of the Commonwealth Realms have someone prevented the Government of Canada from pursuing its desired diplomatic objectives. If anything, Heinbecker’s own examples on Canada’s diplomatic success between 1984 and 2003 point to precisely the opposite conclusion! And even if Heinbecker is correct, a few diplomatic kerfuffles do not make a good argument on why the Dominion of Canada should reject its inheritance and become the First Federal Republic of Canada. Even if Canada were a republic now or had been a republic in the mid-20th century, we will never be able to erase our history and the fact that Canada was once a British Crown colony.

The Queen’s Representation of Canada Abroad

Heinbecker recounts an event that occurred during his time as Canada’s Ambassador to Germany. The Queen of the United Kingdom visited Bonn (the capital of the former West Germany) in order to promote British businesses in Germany. Heinbecker thought that the Queen should also act in her Canadian capacity and promote Canadian businesses at the same diplomatic event, so he asked the aide-de-camp of the British diplomat accompanying the Queen of the United Kingdom to broach the subject with his superior. “It was evident from his startled reaction that such an idea had never occurred to him,” Heinbecker writes. Derek Burney, also a former diplomat and anti-monarchist closely associated with the Mulroney government, told a similar anecdote in 2011 about a similar conversation with a British diplomat that occurred in the 1980s.

Heads of State and Government and their Spouses at the opening of the St. Lawrence Seaway

Heads of State and Government and their Spouses at the opening of the St. Lawrence Seaway

First, the Queen of Canada only represents Canada abroad on and in accordance with the advice of her Canadian government because responsible government means that ministers of the Crown take responsibility for all acts of the Crown. For instance, the Queen of Canada represented Canada in France in 2007 when Her Majesty rededicated the Canadian war memorial at Vimy. Her uncle, King Edward VIII, also acted as the King of Canada when he dedicated our memorial in Vimy at its initial opening in 1936. The Queen of Canada has also represented Canada in the United States. For instance, the Queen of Canada and President Eisenhower, each representing their respective countries, jointly opened the St. Lawrence Seaway at an official State ceremony in 1959.

Second, the Queen only represents one Commonwealth Realm of which she is the sovereign or head of state at any one time on official trips abroad, apart from two addresses to the United Nations General Assembly in 1957 and in 2010. In 2010, the Queen said, “I address you today as Queen of sixteen United Nations Member States and as Head of the Commonwealth of 54 countries,” and the flags of all 16 Commonwealth Realms fly upon the Queen’s arrival.[4]

This procedure of representing only one Realm on a diplomatic visit during the conduct of official business avoids unnecessary confusion, but it does not derogate from the personal union of the Crowns. The personal union of the Crowns of the Commonwealth Realms always exists because Elizabeth II always personifies all the Crowns, but the personal union also imposes a physical limitation that the Queen of the United Kingdom and the Queen of Canada cannot speak with one voice. For practical reasons, the Queen does not act in more than one capacity at once. Her Majesty’s addresses to the United Nations General Assembly are the exception because of the nature of the UNGA itself, where representatives of all 16 Commonwealth Realms are gathered, and because the speeches did not contain anything controversial.

Heinbecker presents an absurd notion that violates both common decency and diplomatic protocol: that he, as a Canadian diplomat, could, with no preparation or briefing, ask a British aide-de-camp to ask a British ambassador who in turn would ask that the Queen of the United Kingdom to represent Canada abroad with no advice from the Government of Canada. And frankly, Heinbecker either knows that this is absurd, or he is ignorant of his own trade. The British aide-de-camp probably looked shocked and did not appreciate Heinbecker’s suggestion, because Heinbecker was totally out of order. Not even the British ambassador to Germany– let alone the British ambassador’s aide-de-camp – would possess the authority to advise the Queen in her Canadian capacity on any matter whatsoever. Only Canadian Ministers of the Crown could do so. Ironically, if the Queen had acted in her Canadian capacity on the advice of British officials, Heinbecker would have succeeded only in harkening back to the 19th century, when Canada was still a colony of the British Imperial Crown and not a sovereign state bearing its own separate legal personality in its own right as part of the personal union of the Commonwealth Realms. In fact, the British Imperial Crown multiplied outward into a personal union of several Crowns in the 1930s precisely because the Sovereign started to act upon the advice of separate sets of responsible ministers with respect to those separate Dominions. [5]

Heinbecker probably intended to use this anecdote as some kind of ironic critique of the Crown of Canada, as in “What is the point in being a monarchy if the Queen doesn’t promote Canadian businesses abroad and only focuses on the United Kingdom?” In reality, Heinbecker’s anecdote relies on the fallacy of appeal to authority (that his role as a diplomat in and of itself means that the reader must take his account as unassailable), a complete rejection of diplomatic protocol,  and on an objectively false interpretation of the role of the Queen of Canada under Responsible Government.

The Politicians’ Republic

Heinbecker defines the Crown as “a legal convenience and historical artefact in Canada, even a convenient fiction” as well as “an anachronism” to which Canada is “manacled” — as if the Crown were a ball and chain and symbol of colonial servitude. He also refers to Canada’s “link to the monarchy” – again, as if the one and indivisible Imperial Crown still existed and as if the Crown of Canada did not form an integral part of the constitution. A “link” could be severed with no complications. Heinbecker thereby dismisses the Crown of Canada’s centrality within the Constitution of Canada, particularly in sections 9 and 17 of the Constitution Act, 1867, which acknowledge that the executive authority of Canada is vested in the Crown, and that the Parliament of Canada, or the Crown-in-Parliament, consists of the Crown, Senate, and Commons. The Crown is thus integral to both the executive and the legislature. A vestigial anachronism cannot form the basis of the daily operation of the government and parliament. Despite describing the Crown as an anachronism, Heinbecker does acknowledge the fact that only an amendment under the unanimity formula of section 41(a) of the Constitution Act, 1982 could bring forth his Elitist Politician’s Republic in which the Governor General would subsume the Queen’s authority and functions and be elected by the 1050 elected representations in the House of Commons and provincial assemblies but only “from among the members of the Order of Canada.” (It is unclear whether the eligible pool of candidates for Governor General would consist only of the “Members” of the Order of Canada, or whether this would also include the two higher categories, Officers and Companions.) The Globe and Mail supported a similar scheme in the late 1990s. The struggle for righteous liberation from this tyrannical monarchy would give way to a new oligarchy wherein only elected MPs, MPPs, MLA, MNAs, and MHAs would possess the right to vote for Canada’s new head of state, and wherein only recipients of the Order of Canada would be eligible for election. This Elitist’s Republic of Canada would probably not resonate even within the republican movement!

Canada’s ambassador to Germany wants Canada to become like Germany: he probably derived this method of selection from Germany’s parliamentary republic. The German president serves a term of five years, once renewable, and he is elected by a “Federal Convention” consisting of the elected members of the lower house of the federal parliament and “an equal number of members elected by” the parliaments of the 16 states. Currently, the Bundestag (lower house of the federal parliament) consists of 631 elected MPs, which means that the next President of Germany would be elected by around 1260 persons. Heinbecker probably wants to preserve or increase the Governor General’s independence by insulating him from the popular control and depriving him of a popular mandate. (In contrast, Ireland and Israel provide a different model of parliamentary republic in which the president serves as head of state but is directly elected by voters).

On another note, what would become of the provincial Lieutenant Governors? Republicans tend to fixate on the Governor General and the head-of-state function at the federal level and to ignore the comparable function at the provincial level. Heinbecker does not indicate whether the Governor General would continue to appoint the Lieutenant Governors on the Prime Minister’s advice or whether they would be subject to a new method of appointment.    

Conclusion: The Paradoxical Canadian Crown

Governments in Canada Have Chosen to Marginalize the Queen

Despite his argument’s logical inconsistencies, Heinbecker is right that the Queen of Canada’s role has been reduced in some ways. But the Queen of Canada has not been marginalized by the turning wheel of history or through the inevitable republican teleology; instead, successive Canadian prime ministers and ministries have chosen to marginalize the Queen in order to “Canadianize” the Crown and emphasize the Governor General.

Heinbecker argues that Canada needs a government willing to lay the groundwork for a republic. This pre-republican government would “treat the Governor General as the de facto Head of State in all ways that the constitution does not actually prohibit” and ensure that the Governor General “performs the ceremonial roles of Head of State,” including the exclusive right to represent Canada abroad and to “promote non-partisan Canadian interests” abroad. In fact, the Governor General already represents Canada both at home and abroad, and the Queen of Canada exercises these functions infrequently.

In practice and in law, most of what Heinbecker proposes already exists. By 2014, the Governor General of Canada already exercises virtually all the legal-constitutional functions of the Queen of Canada within and without Canada. The Queen of Canada now rarely represents Canada abroad because the Government of Canada rarely asks her to do so. Chris McCreery has shown how the Government of Canada gradually delegated most of the roles of the Queen of Canada to the Governor General of Canada from 1947 to 2005.[5] Through the Letters Patent Constituting the Office of the Governor General, 1947, the King of Canada delegated (not “transferred”) the “exercise [of] all powers and authorities lawfully belonging to Us in respect of Canada.” The Queen of Canada remains the legal-constitutional source of all these powers and authorities; if the Office of the Queen ceased to exist, then all the Governor General’s powers and authorities would vanish with it. In practice, the Government of Canada did not ask George VI, and subsequently, Elizabeth II, to delegate the exercise of all the Crown’s powers and authorities until well after 1947. For instance, the Queen of Canada granted all letters of credence to Canadian diplomats until 1975; from 1975 to 2005, the Governor General did so explicitly on behalf of and in the name of the Queen. And from 2005 onward, the Governor General now issues them without direct reference to the Queen of Canada, even though she still personifies this constitutional authority.[6]

Queen Elizabeth II reads the Trudeau government's speech from the throne in 1977

Queen Elizabeth II reads the Trudeau government’s speech from the throne in 1977

A more subtle example includes the Queen of Canada’s role as part of the Crown-in-Parliament (Queen, Senate, and Commons). The Queen of Canada read the Speech from the Throne in the Senate in 1957; Prime Minister Trudeau invited her to do so again in 1977 as part of her Silver Jubilee. But in 2002 when Prime Minister Chretien almost certainly could have invited the Queen of Canada to read the Speech from the Throne as part of her Golden Jubilee Royal Tour, from 4 October to 15 October 2002, he instead allowed Governor General Clarkson to read it one week before on 30 September 2002.

The Queen’s website also unfortunately lends some credibility to Heinbecker’s argument that Elizabeth II is perceived as exclusively British in a cultural sense. Elizabeth II dedicated the Canadian war memorial at Vimy as Queen of Canada, and not as Queen of the United Kingdom, in 2007, but the text of the speech appears under the “Official Website of the British Monarchy.” The website ought to reflect the personal union of the 16 Crowns of the Commonwealth Realms more effectively in this respect. The website does contain sub-sections for each Realm, but the banner “The Official Website of the British Monarchy” still looms large over the sub-heading “Queen and Canada,” which really ought to say “Queen of Canada.” The Canadian section includes sub-sections on “The Queen’s Role in Canada” (which would more accurately be “the Role of the Queen of Canada”), Royal Tours, a photo gallery, and “Symbols and Ceremonies.” The Queen of Canada’s website also ought to include a sub-section dealing with speeches that she has delivered in that capacity so that the text of Her Majesty’s re-dedication of the Vimy Memorial appears there. The Government of Canada now maintains a helpful website called “The Canadian Crown”; the Government could improve upon it by including the Queen of Canada’s speeches therein.

While the Crown of Canada enjoys a secure legal-constitutional entrenchment under section 41(a) of the Constitution Act, 1982, the Crown of Canada as a distinct Canadian legal person has been delegitimated, more or less successfully, in the media and popular culture through a process well-known to scholars of nationalism and nationalist political discourse:”othering.” The Queen has become the foreign “other” so that the Crown of Canada can transform itself from the integral source of legal-constitutional authority to a foreign nuisance or distraction — and so that the good Canadian now assumes the duty to destroy this Other. Heinbecker argues that the government should “take down portraits of the royal family,” by which Heinbecker presumably means that the Government should take down all the portraits of the Queen of Canada from Canadian embassies as well as the portrait of the Queen from the Sovereign’s Wall in the Lester B. Pearson Building, because our embassies don’t display portraits of the whole Royal Family. Removing the Queen of Canada’s portraits from Canadian embassies and consulates would not alter the Queen of Canada’s legal-constitutional position as the sovereign (or head of state, if you prefer); however, this tactic of republicanism-by-stealth – the incremental and deliberate removing the outward symbols of the Crown that reflect Canada’s constitutional monarchy – is an effective method of delegitimating the Crown in the cultural sense. Elizabeth II is reputed to have said, “I have to be seen to be believed.” Each step in republicanism-by-stealth denies the Crown its rightful place in public view and ensures that Canadians no longer think of Canada as the constitutional monarchy that it is. A concerted strategy of republicanism-by-stealth and removing the Crown from everyday public view would make it easier for Canadians to imagine Canada as a republic so that they could perhaps one day will the First Federal Republic of Canada into existence.

As Chris Champion showed in The Strange Demise of British Canada, these anti-monarchist neo-nationalists mean to create Canada anew. Canadian media often refer to the “British monarchy,” which implies that the one and indivisible Imperial Crown still exists and that therefore the Crown is inherently a foreign “other.” The phrase “cutting ties to the monarchy” often appears, and republicans like Duff Conacher of Your Canada, Your Constitution and Paul Heinbecker emphasize it; this wording implies that the Crown is nothing more than a colonial vestige that must, according to the republican teleology, inevitably consign itself the dustbin of history after collapsing under the weight of its legal fiction. While the current Constitution of Canada entrenches the Crown under section 41(a) in the legal-constitutional sense, the Crown of Canada will not necessarily sustain itself automatically in this cultural sense. Even maintaining the status quo requires active effort. In this case, those who favour constitutional monarchy must point out that the Crown of Canada forms an integral part of Canada’s legal-constitutional framework, and that we are merely drawing attention to and reinforcing the current fact and not “retrogressing” backward to some “colonial” subservience. It is the republicans who are the radicals, and the onus rests with them on why we should abolish the Crown of Canada.

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[1] Constitution.ca states that it will focus on, among other things, questions relating to “the role and method of selection of Canada’s Head of State” – which at first instance sounds awfully like a republican argument couched in deliberately ambiguous language. Upon further analysis, the website confirmed my suspicion: under “Publisher Info,” Constitution.ca indicates that it “is published by Your Canada, Your Constitution” (YCYC). In Newspeak, Constitution.ca describes YCYC as “a research and education foundation dedicated to developing knowledge of Canada’s constitution.” In plain English, YCYC advocates that Canada become a republic, and therefore destroy the Crown by replacing its executive, legislative, and judicial authority with a new fully codified constitution. (I have documented YCYC’s mendacity and push-polling in previous entries).
[2] Sean M. Maloney, Canada and UN Peacekeeping: Cold War By Other Means, 1945-1970. (St. Catherines, Ontario: Vanwell Publishing Limited, 2002), 67.
[3] Ibid., 73.
[4] Richard Berthelsen, correspondence with author, 24 July 2014.
[5] Anne Twomey, “Responsible Government and Divisibility of the Crown,” Public Law no. 4 (2008): 742-767.
[6] Chris McCreery, “Myth and Misunderstanding: The Origins and Meaning of the Letters Patent Constituting the Office of Governor General, 1947,” chapter 3 in The Evolving Canadian Crown, edited by Jennifer Smith and D. Michael Jackson, 31-56 (Kingston-Montreal: Queen’s-McGill University Press, 2012).
[7] Ibid., 48-51.

Posted in Crown (Powers and Office), Monarchism v Republicanism, The Personal Union, YCYC Watch | 9 Comments