Will Wynne Pull a Harper? Fixed-Election Laws and Dissolution in Ontario


Wynne Reassures Ontarians That She Won’t Pull a Harper -Yet 

In an interview with the Toronto Star, Premier Wynne assured MPPs and Ontarians that she would not advise an early dissolution if the Conservative Party of Ontario voted to oust Tim Hudak as leader at the policy convention this past weekend (even though that was never really a possibility).

I would not do that. […] I don’t think that would be fair. […] It’s important for people to know that wouldn’t be a trigger. They would need to have the time to go through their leadership process.

Responsible Government, Fixed-Election Dates, and Dissolution

However, this article made no mention of Ontario’s fixed-election law – which the McGuinty government introduced in 2005 with the stated intention of avoiding these so-called “snap elections.” Ontario’s law conforms to the standard Canadian model. Section 9(1) of Elections Act states in its non-derogation clause, “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.”[1] Section 9(2) sets fixed elections on the first Thursday in October in 2007 an every four years thereafter. The second fixed election (not in the nefarious sense of the phrase!) occurred as planned in October 2011; the next election would therefore occur in October 2015.

The Minister responsible, Michael Bryant, told the Assembly that the bill would abolish “the right of the Premier to call elections based on partisan and political considerations.”[2] In reality, of course, Canada’s model of fixed-election laws do no such thing. In fact, they deliberately preserve the Governor’s power to dissolve the legislature on and in accordance with the advice of the First Minister. Certain individuals who either do not understand what Responsible Government means, or pretend not to understand for their own mendacious purposes say: “Aha! The statute only mentions the Lieutenant Governor, not the Premier, which means that the Lieutenant Governor personally and formally controls the exercise of executive power, including dissolution.” For instance, Duff Conacher of that mendacious “educational charity” Your Canada, Your Constitution (YCYC) once argued with me over Twitter that the phrase “as the Governor sees fit” means that the Governors can cavalierly reject the advice of First Ministers for any reason, as if such interventions carried with them no consequences. This is not so; under our constitutional system, statutory interpretation is not as absolute as a strictly literal reading. Responsible Government belies fundamentalist interpretations of executive power!

Responsible Government means that Ministers of the Crown take responsibility for all acts of the Crown, and therefore that the Governor acts on and, save for exceptional circumstances, in accordance with the advice of the First Minister or Cabinet. The Governors still possess the discretionary authority to reject advise to dissolve parliament and thus refuse fresh elections; however, a Governor can only justify his intervention into the executive government under extraordinary circumstances precisely because of the exceptional consequence of his discretion. By refusing to act on the advice of the First Minister or Cabinet, the Governor dismisses them from office or forces them to resign, because a Ministry can only take responsibility for advice that it has offered, not for the contrary advice that it did not offer. In addition, the Governor can reject ministerial advice in this fashion if and only if he can then appoint a new First Minister who will take responsibility the dismissal or resignation of the outgoing Ministry. Some First Minister must always take responsibility for dissolution. Finally, refusing advice to dissolve is not the equivalent of dissolving unilaterally. Under our system, Governors do not and cannot undertake any executive act unilaterally because every proclamation, order-in-council, or other executive instruments requires the counter-signature of a responsible Minister of the Crown before the Governor can formally promulgate it. The proclamations of dissolution, the writs of election, and calling together the next parliament after the general election all require ministerial counter-signatures.

Conclusion: We Need More Examples of Fixed-Election Dates and Minority Parliaments

As it turned out, the Conservative Party rejected a proposal to change its constitution to allow for a leadership review that could have resulted in Hudak’s ousting or resignation, so Wynne would not have to take a Conservative leadership election into account. The Globe and Mail has reported that the Liberals and Conservatives agreed to pass eight bills through the legislature that do not amount to votes of confidence or supply; this agreement did not include the New Democrats. This is not surprising, given that Conservative leader Hudak opted to meet with Liberal Premier Wynne at her suggestions, while New Democratic leader Andrea Horwath declined. The latter article also argued that Hudak will allow some of these “non-contentious” Liberal bills to pass in order to position himself to oppose the Government on its upcoming supply bills and economic policies. However, this article also offers no information on whether Wynne would advise an early dissolution unprompted after these non-contentious bills pass, or whether her minority Liberal government would allow Hudak’s Conservatives to table a motion of non-confidence on which the Legislative Assembly would then take an up-or-down vote.

It is possible that since Prime Minister Harper’s unprompted early dissolution in 2008, Canadian journalists have accepted the truth of Canada’s fixed-election laws: that they do not create stable fixed-term parliaments, that they deliberately preserve the Governors’ power to dissolve on prime ministerial advice and thus the status quo, and that they therefore do nothing but provide rhetorical cover to politicians who want the voters to perceive them as having done something. We would need to collect more examples of minority parliaments in the provinces that have fixed-election laws in order to test this theory and draw a definitive conclusion. But it is also possible that the media have decided to apply a different standard to Ontario, whether for purely partisan reasons or otherwise. Unfortunately, I suspect that the latter applies in this case.

All the Canadian fixed-election laws are useless; Harper did not “break his own law” in 2008, and nor would Wynne “break the law” in Ontario if she were to advise an early dissolution. I ask only that the media cover similar situations with the same level of scrutiny.

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[1] Ontario, Legislative Assembly. An Act to Amend the Elections Act, The Election Finances Act, and the Legislative Assembly Act, to Repeal the Representation Act, 1996, and to Enact the Representation Act, 2005. Bill 176, 38th Legislature, 1st Session, 2005.
[2] Bryant, Michael [“Election Statute Law Amendment Act, 2005,”] In Ontario, Legislative Assembly of Ontario, Hansard, 38th Legislature, 1st Session, Thursday, 5 May 2005.

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This entry was posted in Crown (Powers and Office), Dissolution, Fixed Elections, Reform. Bookmark the permalink.

One Response to Will Wynne Pull a Harper? Fixed-Election Laws and Dissolution in Ontario

  1. Pingback: Premier Marois Copies Prime Minister Harper: Fixed-Date Elections in Quebec | James W.J. Bowden's Blog

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