Over the next few days, I will present and analyse the fixed-election laws in the provinces as a follow up to my post on section 56.1 of the Canada Elections Act and the early dissolution of 2008. The following provinces have passed legislation for fixed-elections. The Northwest Territories also passed legislation for fixed elections in 2006, but I’m only including the provinces in this analysis because they are sovereign in their jurisdiction and thus possess constitutionally separate legislative assemblies and lieutenant governors.
- British Columbia, 2001
- Newfoundland and Labrador, 2004
- Ontario, 2005
- New Brunswick, 2007
- Saskatchewan, 2008
- Prince Edward Island, 2008
- Manitoba, 2008
Here are the next scheduled fixed elections in each of these provinces, in geographic order. This year, 2011, will see five provincial elections.
- British Columbia: May 2013
- Saskatchewan: 7 November 2011
- Manitoba: 4 October 2011
- Ontario: 6 October 2011
- New Brunswick: September 2014
- Prince Edward Island: 3 October 2011
- Newfoundland and Labrador: 4 October 2011
The Campbell government in British Columbia set the trend of implementing fixed elections. All these provincial laws contain wording similar to section 56.1 of the federal law. I will examine each province’s law below. While each province follows the same general principle of inserting a clause that preserves the powers of the crown, they make interesting variations on the precise wording. This issue of fixed elections shows that in our federal system, the provinces are indeed the laboratories of policy experimentation!
I will cover the first four provinces that passed fixed-elections laws in this post, and the other three provinces in tomorrow’s post.
British Columbia placed its fixed-elections law in its provincial constitution. (So far, it is the only province to have formally established its provincial constitution in statute). Section 23 reads as follows:
(1) The Lieutenant Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the Legislative Assembly when the Lieutenant Governor sees fit.
(2) Subject to subsection (1), a general voting day must occur on May 17, 2005 and thereafter on the second Tuesday in May in the fourth calendar year following the general voting day for the most recently held general election.
The British Columbian legislation preserves the discretion of the Lieutenant Governor to dissolve parliament in order to ensure the constitutionality of the provision, just as the Canadian legislation preserves the discretion of the Governor General. British Columbia has since held two elections, both of which yielded majority parliaments. It thus reminds unclear how the premier would interpret section 23 in a minority parliament. In addition, there is rampant speculation that Christie Clark, who became premier in March 2011 two years into the current parliament, after the resignation of Gordon Campbell, will advise an early dissolution. If the premier were to request an early dissolution, it also remains unclear of the extent to which her action would prove controversial.
The Williams government amended the House of Assembly Act in 2004 in order to implement fixed elections every four years on the second Tuesday in October, starting in 2007.
Duration of House of Assembly
3. (1) 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) A polling day at a general election shall be held on the second Tuesday in October, 2007 and afterward on the second Tuesday in October in the fourth calendar year following the polling day at the most recently held general election.
Election on change of Premier
3.1 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.
Section 3.1 of Newfoundland and Labrador’s law codifies the myth that we elect governments rather than parliaments. A premier who took office and formed a new government after the election due to the resignation or death of his or her predecessor must advise dissolution within 12 months, presumably in order to obtain “his or her own mandate”. This could result in another general election as early as one year into the life of a parliament. Premier Williams resigned in December 2010, and the next provincial election will take place in October 2011, so Premier Dunderdale does not need to invoke that rule. I don’t accept this argument that “they weren’t elected.” Kathy Dunderdale was elected (in Newfoundland’s case) as a Member of the House of Assembly in 2007, just as Danny Williams was. The Williams government and the Dunderdale government both commanded the confidence of the House of Assembly.
The McGuinty government passed legislation to establish fixed-elections in 2005 under the Elections Act.
Four-Year Terms, General elections at four-year intervals
Powers of Lieutenant Governor
9. (1) Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature, by proclamation in Her Majesty’s name, when the Lieutenant Governor sees fit.
First Thursday in October
(2) Subject to the powers of the Lieutenant Governor referred to in subsection (1), (a) a general election shall be held on Thursday, October 4, 2007, unless a general election has been held, after the day on which the Election Statute Law Amendment Act, 2005 receives Royal Assent and before October 4, 2007, because of a dissolution of the Legislature; and
(b) thereafter, general elections shall be held on the first Thursday in October in the fourth calendar year following polling day in the most recent general election.
I think that the headline of the legislation “Four-Year Terms” should read “Four-Year Parliaments”, because we elect parliaments, not premiers to serve out “terms” in office like presidents.
The Legislative Assembly of New Brunswick incorporated its fixed-elections legislation into its Legislative Assembly Act, and much to my surprise, included far more detail than the equivalent fixed-election laws in the other provinces, along with some unique elements.
2(1) A Legislative Assembly of the Province shall not be affected by the demise of the Crown.
2(2) The present and every future Legislative Assembly shall continue until dissolved by the Lieutenant- Governor.
2(3) Nothing in this section affects the power of the Lieutenant-Governor to prorogue or dissolve the Legislative Assembly at the Lieutenant-Governor’s discretion.
2(4) Subject to the power of the Lieutenant-Governor referred to in subsection (3), the Premier shall provide advice to the Lieutenant-Governor that the Legislative Assembly be dissolved and a provincial general election be held on the following dates:
(a) on Monday, September 27, 2010; and
(b) thereafter, on the fourth Monday in September in the fourth calendar year following the ordinary polling day for the most recently held provincial general election.
2(5) If the Premier is of the opinion that a Monday that would be an ordinary polling day under subsection (4) is not suitable for that purpose because it is in conflict with a day of cultural or religious significance or a federal election, the Premier may choose an alternative day in accordance with subsection (6) and shall provide advice to the Lieutenant-Governor that the provincial general election be held on that day.
2(6) The alternative day shall be one of the following:
(a) if the date of a provincial general election under subsection (4) is not suitable because it is in conflict with a day of cultural or religious significance, the
Monday immediately preceding or immediately following the Monday that would otherwise be the day on which the provincial general election would be held; or
(b) if the date of a provincial general election under subsection (4) is not suitable because it is in conflict with a federal election, the fourth Monday in August or the fourth Monday in October in the fourth calendar year following the ordinary polling day for the most recently held provincial general election.
New Brunswick’s legislation takes the interesting step of codifying the relationship between the Premier and the Lieutenant Governor in section 2(4), which states that the Premier advises the Lieutenant Governor to dissolve the Legislative Assembly; it also implies that the Lieutenant Governor must accept the Premier’s advice – at least when the Premier conforms to this fixed elections law. If the Premier advised dissolution early, the standard formula that preserves the Lieutenant Governor’s powers should preserve the relevant constitutional conventions. In addition, the Legislative Assembly of New Brunswick included an emergency provision whereby the provincial election can be held either one month earlier or one month later than the standard date if the latter conflicts with a federal election.