Fixed Elections in the Provinces, Part II


The list in Fixed Elections in the Provinces, Part I shows a clear trend toward the establishment of fixed-elections laws in Canada. British Columbia led the charge in 2001 and set the basic formula that all other provincial legislatures, and the federal parliament, would follow: the inclusion of a clause that preserves the crown prerogative on dissolution (and in BC and some other provinces, on prorogation as well), and the selection of a day (in BC, the second Tuesday in May) on which elections will be held every four years. All the provincial legislatures, and the federal parliament, chose to set the limit at four years, probably because prior to the introduction of the fixed-election laws, most first ministers leading majority governments would advise dissolution after 4 years rather than the written-constitutional limit of five years. Newfoundland and Labrador passed similar legislation in 2004, but added a provision that forces a new government formed within the same legislature to “seek its own mandate”, in the popular media parlance. In 2005, Ontario passed its fixed-elections law. Canada and New Brunswick passed their laws in 2007. Finally, in 2008, Saskatchewan, Manitoba, and Prince Edward Island all followed suit.

At the time of writing, only Alberta, Quebec, and Nova Scotia operate under the traditional system.

Saskatchewan

The Legislative Assembly and Executive Council Act, 2007 sets the rules for the fixed elections to the Legislative Assembly of Saskatchewan. This legislation takes a different approach than the British Columbian Constitution Act.

When general elections must be held

8.1(1) Unless a general election has been held earlier because of the dissolution of the Legislative Assembly, the first general election after the coming into force of this section must be held on Monday, November 7, 2011.

(2) Following the first general election held after the coming into force of this section, a general election must be held on the first Monday of November in the fourth calendar year after the last general election.

Prerogative of Crown not affected

8.2 Nothing in section 8 or 8.1 alters or abridges the power of the Crown to prorogue or dissolve the Legislative Assembly.

This legislation mandates fixed elections on the first Monday in November every four years; however, in an earlier section, the Act preserves the traditional constitutional limit of the life of a parliament of five years.

Duration

6 No Legislative Assembly is to continue for longer than five years from the date fixed for the return of the writs at a general election of members.

Section 6 is wholly redundant in light of section 8.1. Perhaps the Legislative Assembly forgot to repeal this section in 2008 when it amended to Act to include the fixed elections, or the Legislative Assembly could have left it as an additional safeguard, like a redundant deadbolt on a door. Section 8.2 preserves the powers of the “Crown” rather than those of the Lieutenant Governor, though this different wording ought to entail no legal implications.

Manitoba

Manitoba will undergo its first fixed election in October 2011 on the basis of section 49.1 of The Elections Act, and the first Tuesday in October every four years thereafter.

Powers of Lieutenant Governor preserved

49.1(1) Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislature at the Lieutenant Governor’s discretion.

General election on first Tuesday in October

49.1(2) Subject to subsection (1),

(a) a general election must be held on Tuesday, October 4, 2011, unless a general election has been held between the coming into force of this section and October 3, 2011; and

(b) thereafter, a general election must be held on the first Tuesday in October in the fourth calendar year after election day for the last general election.

Prince Edward Island

The Legislative Assembly of Prince Edward Island amended its Elections Act in 2008 in order to accommodate the fixed elections.

4.1  (1) Nothing in this section affects the powers of the Lieutenant Governor, including the power to dissolve the Legislative Assembly, by proclamation in Her Majesty’s name, when the Lieutenant Governor sees fit.

(2) Subject to the powers of the Lieutenant Governor referred to in subsection (1),

(a) a general election shall be  held on Monday, October 3, 2011, unless a general election has been held, after the day in which this subsection comes into force and before Monday, October 3, 2011, because of a dissolution of the Legislative Assembly; and

(b) thereafter, general elections shall be held on the first Monday in October in the fourth calendar year following ordinary polling day in the most recent general election.

4.2 (1) Notwithstanding subsection 4.1(2), if the Chief Electoral Officer is of the opinion that a Monday that would otherwise be the date of ordinary polling day is not suitable for that purpose because it is a day of cultural or religious significance, or the day of a federal election, the

Chief Electoral Officer shall choose an alternate day in accordance with subsection (3) and recommend to the Lieutenant Governor in Council that ordinary polling day should be that alternate day.

(2) The Lieutenant Governor in Council may, on the recommendation of the Chief Electoral Officer pursuant to subsection (1), make an order changing the date of ordinary polling day to the alternate day recommended by the Chief Electoral Officer.

(3) The alternate day recommended under subsection (1) and set out in an order made under subsection (2) shall be one of the seven days following the Monday that would otherwise be ordinary polling day.

Prince Edward Island, like New Brunswick, included a provision that allows the fixed date to be changed in order to take into account a federal election. Of the four provinces (New Brunswick, Saskatchewan, Manitoba, and Prince Edward Island) that passed their fixed-election laws after Canada passed its fixed-election law in 2007, only the legislatures of New Brunswick and Prince Edward Island adopted provisions that allow the province to change its election date if it conflicts with the federal election. Any general provincial election should not overlap with a general federal election.

In the third and final instalment, I will analyse these laws and their effects on parliamentarism, and compare the Canadian approach to the British approach contained in the Fixed-Term Parliaments Bill.

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About James W.J. Bowden

M.A. candidate at the University of Ottawa. My research interests deal primarily with Westminster parliamentarism in the core Commonwealth, focusing on the unwritten constitution, and the evolution of parliament as an institution.
This entry was posted in Crown (Powers and Office), Dissolution, Fixed Elections, Prime Minister's Powers. Bookmark the permalink.

4 Responses to Fixed Elections in the Provinces, Part II

  1. Pingback: Alex Salmond and the Scottish National Party on an Independent Scotland: Restoration of the Personal Union of the Crowns of Scotland and England | Parliamentum

  2. Pingback: Fixed Elections: Stephen Harper Did Not Break His Own Law in 2008 | Parliamentum

  3. Pingback: Fixed Elections in the Provinces, Part I | Parliamentum

  4. Pingback: Fixed Elections in the Provinces, Part III: Analyses and Conclusions | Parliamentum

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