Brian Pallister, Premier of Manitoba after leading the Progressive Conservatives to a parliamentary majority and 53.1% of the popular vote and 40 of 57 seats in April 2016, has decided to ignore Manitoba’s fixed-date election law in the most convoluted – or, perhaps, creative – way up until now. In the six instances where premiers had opted for snap elections instead of waiting for the polling day scheduled under fixed-date election legislation from 2014 to 2019, they had announced plans for an early election very shortly (on the order of a few days at most) before advising the Lieutenant Governor to dissolve the legislature and issue the writs of election.
On 19 June, Premier Pallister announced that a general election would take place on 10 September 2019, fully 13 months earlier that the polling day scheduled for October 2020. But because Manitoba’s Election Act specifies that the writ for an unscheduled election must last between 28 and 34 days, the Premier did not advise Lieutenant Governor Filmon in person to dissolve the 41st Legislature and issue the writs of election until 12 August 2019. This unprecedented decision resulted in a de facto election campaign of nearly 90 days despite the de jure writ of 29 days. Pallister had stoked speculation about this early election since December 2018 and tried to make it all more palatable by voluntarily binding his government to the 90-day pre-election prohibition on all but necessary and routine government advertising which under the Election Financing Act currently only applies to the Government of Manitoba in the 90 days preceding a scheduled general election. In so doing, Pallister has also set a precedent for broadening the scope of the Caretaker Convention to at least 4 months.
In this post, I will review the history of Manitoba’s fixed-date election law and its current laws regulating the duration of the writ and pre-election advertising, delve more into how recent legislation and Pallister’s actions will, in practice, expand the scope of the Caretaker Convention, and conclude with an explanation why Pallister took this bizarre staggered approach to announcing an election two months before the dissolution and issuing of writs actually took place.
Jocelyne Roy-Vienneau, the Lieutenant Governor of New Brunswick, has just died of cancer after having revealed the diagnosis in the fall of 2018 around the time of the last change of government from Gallant to Higgs. CBC News reports that the province’s Protocol Office will make more announcements in the coming days. Canada has lost two Lieutenant Governors to cancer in as many months, after W. Thomas Molloy, the Lieutenant Governor of Saskatchewan, died in office on 2 July.
By James Bowden & Lyle Skinner
Introduction: An Early Election Leads to a Hung Parliament
On 17 April 2019, Premier Dwight Ball advised Lieutenant Governor Judy Foote to dissolve the 48th House of Assembly of Newfoundland and Labrador and call an early election. Thus for the 7th time, a Canadian first minister sought and received an early dissolution and new elections notwithstanding a fixed-date election law. Upon dissolution, the Liberals command a comfortable parliamentary majority of 27 out of 40, opposite 8 Progressive Conservatives, 2 New Democrats, and 3 independent MHAs. Ball’s risky early dissolution did not pay off. On 16 May, Newfoundlanders and Labradorians returned a minority legislature which reduced the Liberals to 20 out of 40 against a resurgent 15 Progressive Conservatives, 3 New Democrats, and 2 independents. Ball opted to start the 1st session of the new 49th House of Assembly on 10 June.
By the well-established norms of Responsible Government, Premier Ball and the 13th Ministry of Newfoundland & Labrador since 1949 remained in office and would, as the incumbent government, would meet the new legislature and test its confidence. In Canada, the tenure of the Prime Minister or Premier determines the tenure of the Ministry as a whole, and that term only ends upon the resignation or death of the first minister. Yet Lieutenant-Governor Foote appointed Premier Ball as Premier at Government House on 30 May 2019. It’s hard to appoint someone to an office when he already occupies it. The Executive Council of Newfoundland and Labrador even tacitly acknowledges as much in this rather tautological wording: “The Honourable Dwight Ball, Premier of Newfoundland and Labrador, today announced his Cabinet, with the Premier and all Ministers being sworn in at Government House.” The headline of the official press release also characterizes a cabinet shuffle in an incumbent government as the swearing in of a “New Government.” Premier Dwight Ball also insisted to reporters upon his re-appointment, “There’s nothing strategic about this.” This is false. Ball added: “I would prefer if the judicial recount was done today and over and we had that decision made, that would be my preference, but it’s not.” We will demonstrate that the Premier doth protest too much and that this unintentionally revealing remark betrays how he deliberately distorted the caretaker convention.
Parliament first considered the fixed-date election provision in the Canada Elections Act in 2006 and enacted it in May 2007. Even today, the statute still refers to what should have become the first scheduled federal election in October 2009 as the baseline for all subsequent scheduled elections, even though no federal election ever took place in 2009. Prime Minister Harper infamously opted secure a dissolution of the 39th Parliament one year early in September 2008 for an election in October 2009 on the reasonable grounds that his government had already lost the confidence of the Commons in practical terms because it could no longer shepherd its legislation through apart from Liberal abstentions. In addition, Harper had met with Jack Layton, Leader of the New Democratic Party, and Gilles Duceppe, leader of the Bloc quebecois, in the days before the early dissolution, and neither could pledge support; at the same time, Liberal leader Stephane Dion had stated openly and publicly that he would introduce a motion of non-confidence the week of 15 September 2008 when the Commons returned from its summer recess, in which case, there would have been an early election anyway. Contrary to all evidence, this episode continues to stoke the ire of the liberal intelligentsia in some quarters over a decade later. And in March 2011, the House of Commons expressly withdrew its confidence from the Harper government, and an election occurred in May 2011. The first federal general election which took place as scheduled occurred on 19 October 2015. The election currently scheduled for 21 October 2019 would become only the second to occur on schedule, if everything holds.
In this election year, we should take stock in how Canada’s fixed-date elections legislation has evolved since 2007, how federal elections occur, and how they could be delayed under some circumstances.
Now that the Liberals have formed government under Prime Minister J. Trudeau for four years, Errol Mendes, Professor of Law at the University of Ottawa, had to venture across the seas in search of new Conservative dragons to slay. And as so often happens in these quixotic quests, the facts of the matter prove an inconvenient impediment to achieving Mendes’ political goal. Mendes’ latest column to the Globe and Mail, Canada’s illustrious paper of record, “Boris Johnson Should Learn Canada’s Proroguing Lesson,” contains numerous factual and conceptual errors – no small feat given its short length. Worse still, the Globe and Mail has a history of printing inaccurate columns on prorogation, like its editorial from 2 August 2013 in which it lashed out against Stephen Harper’s “third” prorogation, which in fact happened in 2009.