Who Is Canada’s Longest-Serving Prime Minister? It Depends on When “Canada” Began


Parliament of Canada Youth Connection

Introduction

The Parliament of Canada — Youth Connection’s Facebook group asked on 22 June 2016, “Who is Canada’s longest-serving Prime Minister?” and asked users to submit their guesses before confirming the answer in a later post, as Mackenzie King. This question reminded me of an off-hand comment that I had included in my article in The Dorchester Review “1791: The Birth of Canada”, whereby 19th-century historian Alpheus Todd had placed the start of Sir John A. Macdonald’s premiership not in 1867 but in 1864. This in turn raises a broader question for this Canada Day (or Dominion Day, as it was once known), on which we celebrate the 149th anniversary of Confederation — not of “Canada” itself.

So I would ask the question myself: “Who is Canada’s longest-serving prime minister?” The answer depends upon when you believe that “Canada” began. ‎If you dismiss the Upper Canada and Lower Canada (1791-1841) and the United Province of Canada (1841-1867) as irrelevant, then Mackenzie King would indeed fit the bill because he served a total of 21 years as prime minister over three non-consecutive ministries between 1921 and 1947. ‎The sesquicentennial of Confederation is now only one year away. Dismissing all Canadian history that took place before 1867 brings forth other powerful misconceptions, such as the view that 2017 marks the 150th anniversary of “Canada” instead of Confederation, which amended an existing polity but did not create a new one. The historical evidence suggests that you would be wrong to dismiss the other Canadas as irrelevant colonial baggage unworthy of celebration or commemoration. The facts are clear and ought to speak for themselves; since they do not, I shall lend my voice to them in this article.

“Canada” as a Polity

“Canada” as a polity dates back to 1791, not 1867. From 1791 to 1931, first Upper and Lower Canada, then the United Province of Canada, and finally, the Dominion of Canada, were a colony of the Imperial Crown and subject to the jurisdiction of the Westminster Parliament. In other words, Upper Canada and Lower Canada, established by the Westminster Parliament through the Constitutional Act, 1791, are the direct predecessors of the United Province of Canada, which was established by the Westminster Parliament through the Act of Union, 1840 and is in turn the direct predecessor of the Dominion of Canada, which the Westminster Parliament established through the British North America Act, 1867. In contrast, the provinces of Nova Scotia and New Brunswick are the successor polities of the Crown colonies of Nova Scotia and New Brunswick, which, unlike the Canadas, were established by the prerogative authority of the Imperial Crown rather than by statutory authority through the Westminster Parliament.[1] The closest 20th-century equivalent in international law that best describes the relation between these successor Crown colonies would be the concept of “continuator” or “continuing state.”[2] And in other respects, Canada became a successor state to the United Kingdom post-1931 once the Crown of Canada emerged as a separate legal person from the Crown of the United Kingdom and gave Canada its own separate international legal personality.

How the Act of Union and the British North America Act Expressly Codify the Principle of Continuity 

Section 45 (XLV) of the Act of Union, 1840 states that the executive authority, and any instrument promulgated under it, of Upper Canada and Lower Canada shall remain in full force and effect under the United Province of Canada.

[…] all Powers, Authorities, and Functions which […] are vested in or are authorized or required to be exercised by the respective Governors or Lieutenant Governors of the said Provinces […] shall […] be vested in and may be exercised by the Governor of the Province of Canada […].

Section 46 (XLVI) states the same for legislative authority and the body of law in effect for the Canadas shall carry over to the United Province of Canada intact.

[…] all Laws, Statutes, and Ordinances, which at the Time of the Union of the Provinces of Upper Canada and Lower Canada shall be in force within the said Provinces or either of them, or any Part of the said Provinces respectively, shall remain and continue to be of the same Force, Authority, and Effect in those Parts of the Province of Canada which now constitute the said Provinces respectively as if this Act had not been made, and as if the said Two Provinces had not been united as aforesaid […]

Those two sections in the Act of Union, 1840 ensure the continuity of the institutions and authorities established under the Constitutional Act, 1791 and thus transformed Upper Canada and Lower Canada into the United Province of Canada. While the Act of Union, 1840 does not use the word “continue” where the British North America Act does with respect to executive authority, that phrase “shall be vested in” achieves the same outcome. Historian Gary Caldwell has noted, “Historians of the Assembly [of Lower Canada] maintain that it existed between 1840 and 1867 within the Union, the Union being a fusion of both legislatures rather than a new creation.”[2]

The British North America Act, 1867 states this principle of continuity more emphatically and more frequently than does the Act of Union, 1840 with respect to both executive and legislative authorities. Section 9 of the British North America Act, 1867 says, “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen” – which means that the same executive authority carried over from the United Province of Canada and “continued” uninterrupted to the Dominion of Canada. The same principle applies to section 15 of the Act, which states, “The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.” Sections 41 and 84 bifurcated the United Province of Canada’s existing electoral law and established them as the baseline of electoral law for both the Dominion of Canada and the newly created provinces of Ontario and Quebec, and then allowed the Parliament of Canada or legislatures of those provinces to amend it as they saw fit; in both cases, the British North America Act emphasizes the “continuance of existing election laws.” Sections 64 does for Nova Scotia and New Brunswick what section 9 did for the United Province of Canada. It states:

The Constitution of the Executive Authority in each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.

Section 88 then codifies the same principle of continuity for the legislatures of Nova Scotia and New Brunswick:

The Constitution of the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.

The British North America Act then codifies the principle of continuity in several other areas. Section 122 states: “The Customs and Excise Laws of each Province shall, subject to the Provisions of this Act, continue in force until altered by the Parliament of Canada.” Section 129 provides for the “continuance of existing laws, courts, officers, etc.” in Ontario, Quebec, Nova Scotia, and New Brunswick.

Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made […].

Section 130 pertains to “the transfer of officers to Canada” and meant that any public officer-holder in New Brunswick or Nova Scotia whose duties would, after Confederation, fall under the jurisdiction of the Dominion of Canada, pursuant to section 91, be transferred from the provincial civil service to the Dominion civil service.

Until the Parliament of Canada otherwise provides, all Officers of the several Provinces having Duties to discharge in relation to Matters other than those coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces shall be Officers of Canada, and shall continue to discharge the Duties of their respective Offices under the same Liabilities, Responsibilities, and Penalties as if the Union had not been made.

Section 139 mandated that any proclamation made under the Great Seal of the Province of Canada that was scheduled to enter into force after 1 July 1867 would still enter into force but would apply instead to either the Dominion of Canada (“that Province”), the new Province of Ontario (“Upper Canada”) or to the new Province of Quebec (“Lower Canada”).

Any Proclamation under the Great Seal of the Province of Canada issued before the Union to take effect at a Time which is subsequent to the Union, whether relating to that Province, or to Upper Canada, or to Lower Canada, and the several Matters and Things therein proclaimed, shall be and continue of like Force and Effect as if the Union had not been made. 

Section 139 thus bifurcated executive authority and distributed it to both the Dominion and to new provinces based on the division of powers established under sections 91 and 92. Finally, section 141 states, “The Penitentiary of the Province of Canada shall, until the Parliament of Canada otherwise provides, be and continue the Penitentiary of Ontario and of Quebec.”

The Continuity of the Executive and the Legislature in Practice

The executive and legislative institutions of the United Province of Canada carried over into the Dominion of Canada: the Governor General, Prime Minister, civil service, militia, parliament buildings, and Legislative Council of the United Province of Canada became the Governor General, Prime Minister, civil service, militia, parliament buildings, and Senate of the Dominion of Canada on 1 July 1867.

In practice, this direct continuation of executive authority meant that Governor General Monck and Prime Minister Macdonald transitioned seamlessly from the United Province of Canada to the Dominion of Canada. Macdonald became prime minister of the Dominion of Canada on 1 July 1867, but the first general federal election did not take place until September 1867. Since the United Province of Canada and the Dominion of Canada were a colony of the Imperial Crown, the ultimate source of executive authority — Queen Victoria — remained intact, which in turn allowed the authority delegated to the Governor General, exercised on the advice of the Prime Minister and Cabinet, to remain intact.

The militia and the civil service themselves also carried over. For example, the Geological Survey of Canada was established in 1842 and, as its website says, is celebrating its 175th anniversary in 2017 just as we mark the sesquicentennial of Confederation that same year. The Decennial Census prescribed under section 51(1) of the Constitution Act, 1867 first occurred in 1871 for the Dominion of Canada as a whole because the last decennial census for the United Province of Canada had taken place in 1861. Furthermore, the Canada Gazette‘s — the official publisher of the Government of Canada — extends back not to 1867, but rather to 1841.

The capital of the Province of Canada simply became the capital of the Dominion of Canada, and the edifices on Parliament Hill themselves similarly made the switch, as did the Library of Parliament. The Legislative Councillors from Ontario and Quebec also became the first batch of Senators for Ontario and Quebec. According to ParlInfo, several of the Legislative Councillors from the United Province of Canada were appointed en masse, by proclamation, as the first Senators representing Ontario and Ontario in the 1st Parliament – which is ironic, given that many of them were originally elected as Legislative Councillors representing Canada West and Canada East!

The text of the British North America Act, 1867 leaves no doubt that the Dominion of Canada is the successor state or continuator of the United Province of Canada, just as the text of the Act of Union, 1840 states plainly that the United Province of Canada is the continuator of Upper Canada and Lower Canada. It is an incontrovertible fact.

Some of the constitutional conventions that defined the United Province of Canada merit further explanation here, because, unlike the legal framework and executive and legislative authorities of the polity, they did not survive the transition to the Dominion of Canada. A political culture of consociationalism and elite accommodation between equivalent English- and French-speaking political parties developed in the United Province of Canada and even went so far as to produce a de facto co-premiership, with one English-speaker and one French-speaker heading each Ministry; however, only one of the two formally headed each Ministry as Premier, with the other serving as Deputy Premier.[4] It seems that the tenure of the premier – not the deputy premier, and not the premier and deputy premier jointly – determined the life of the ministry. This virtual co-premiership emerged as the executive counterpart of the legislative Double Majority Convention, whereby the assembly could pass bills only with majorities of MPs from Canada West and Canada East. The Double Majority Convention itself derived from the sectional equality of representation between Canada West and Canada East,  irrespective of population. Between 1841 and 1854, Canada West and Canada East each returned 42 MPs, for an Assembly of 84 MPs; from 1854 to 1867, the Assembly expanded to a total of 130 MPs, with 65 each from Canada West and Canada East.[5] Confederation, federalism, and the principle of representation by population replaced consociationalism and sectional equality and thus rendered both the Double Majority Convention and the co-premiership moot. Both died out immediately upon Confederation.

Conclusion: Macdonald Holds the Record for the Longest Tenure as Prime Minister of “Canada”

Sir John A. Macdonald edges out Mackenzie King as the longest-serving prime minister because what 20th-century historians have defined as his last term as prime minister of the United Province of Canada (1864-1867) blends in seamlessly with his first term as prime minister of the Dominion of Canada (1867-1873). Alpheus Todd – the renowned 19th-century parliamentary scholar who is, crucially, a contemporary of all of these events – also defines Macdonald’s term in office as 1864-1873, not 1867-1873. Macdonald of course went on to serve another term from 1878-1891.

Upon the confederation of the British North American provinces in 1867, Sir John A. Macdonald was appointed Premier (his ministry having already been in existence in the Province of Canada for three years); and he continued as prime minister until November 5, 1873, when the Mackenzie administration was formed. […] In 1878 Sir John A. Macdonald returned to power, bringing with him most of his former colleagues, and remained in office until death removed him on June 6, 1891, having but one change of ministry in twenty-seven years. [6]

In this account, Todd wasn’t even counting Macdonald’s two earlier terms as prime minister before 1864; he also served in this capacity from 1857 to 1862, apart from 4 hilarious days in August 1858 that surrounded the Double Shuffle Incident.

Macdonald King
26 November 1857 to 2 August 1858[7] 29 December 1921 to 28 June 1926
6 August 1858 to 24 May 1862 25 September 1926 to 7 August 1930
30 May 1864 to 5 November 1873 23 October 1935 to 15 November 1948
17 October 1878 to 6 June 1891

Sir John A. Macdonald is the longest-serving first minister of the Crown in Canadian history, having served in that capacity for 22 non-consecutive years (with the 1864 baseline) and nearly 27 years with the 1857 baseline, either of which surpasses Mackenzie King’s non-consecutive tenure of 21 years.

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Endnotes

[1] Janet Ajzenstat, “Celebrating 1791: Two Hundred Years of Representative Government,” Canadian Parliamentary Review (Spring 1991): 26.
[2] Gary Caldwell, “The Quebec Assembly,” The Dorchester Review 6, no.1 (Spring-Summer 2016): 44.
[3] James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 2006), 667-672.
[4] Christopher Moore, 1867: How the Fathers Made a Deal (Christopher Moore Editorial Limited, 1997).
[5] Suzanne Langevin (ed), La Procédure parlementaire du Québec, 3e édition (Québec: Assemblé national, 2012), 25.
[6] Alpheus Todd, Parliamentary Government in the British Colonies, 2nd Edition (London: Longmans, Green, and Co., 1894), 62-63. In that case, Todd used 1864, and not 1867, as his point of reference, since 1891 minus 27 years is 1864.
[7] Macdonald served as Deputy Premier from 24 May 1856 to 26 November 1857.

Posted in Constitution (Written), History of British North America | Leave a comment

How the Fixed-Term Parliaments Act Complicates Brexit and An Early General Election


In the midst of my presentation to the CSPG's seminar on "the implications of fixed-date elections." Photo credit: Nick MacDonald

In the midst of my presentation to the CSPG’s seminar on “the implications of fixed-date elections.”
Photo credit: Nick MacDonald

Introduction

Various British MPs like Jacob Rees-Mogg and journalists like Peter Hitchens have called for an early general election in the wake of Leave’s victory in the Brexit referendum and Prime Minister Cameron’s announcement that he will resign the premiership by October. But as I shall demonstrate below, holding an early general election is no longer a routine matter because the Prime Minister can no longer make and take responsibility for the decision to dissolve parliament because of the Fixed-Term Parliaments Act, 2011. This new state of affairs in British politics and the implications of this radical and under-appreciated piece of legislation from 2011 will therefore only further complicate the fallout of the Brexit Referendum. 

Jacob Rees-Mogg, Conservative MP and “member for the 18th century”, and Philip Norton, a Conservative lifepeer and Professor of Government at the University of Hull, are amongst the few British parliamentarians who seem to have understood the true ramifications of the Fixed-Term Parliaments Act, 2011. They both voted against the bill in the last parliament and mounted a spirited defence of parliament’s liberties and the proper roles of the legislature and executive. Norton also explained on his blog that an early general election is no longer straight-forward and that the Prime Minister no longer makes that decision.

The Executive No Longer Controls Dissolution At All

I shall state from the outset the most radical and significant attribute of the Fixed-Term Parliaments Act, 2011: it has put the Crown’s prerogative authority over dissolution into abeyance.

The Prime Minister no longer plays any role whatsoever in dissolution, and the Queen no longer promulgates dissolution into force on and in accordance with the Prime Minister’s advice. The Prime Minister of the United Kingdom can no longer call a snap election. The Queen could no longer refuse a Prime Minister’s advice to dissolve parliament under exceptional circumstances because the Prime Minister no longer gives any advice pertaining to dissolution.

In short, the Fixed-Term Parliaments Act, 2011 achieves in the United Kingdom what the proponents of fixed-date election laws in Canada want and mistakenly believe has happened in Canada, at the federal level, and in the provinces that have passed similar laws (all except Nova Scotia).

I have presented twice on the Fixed-Term Parliaments Act, 2011, most recently at the Canadian Study of Parliament Group’s seminar in January 2016. On both occasions, I got the impression that no one in my Canadian audiences had heard of the law and therefore did not appreciate its radicalism and its profound effects on the conduct of Responsible Government.

During that second presentation, I was so tempted to invoke Monty Python’s Dead Parrot Sketch in order to illustrate how executive authority over dissolution is dead. It is no more. It has ceased to be. It is bereft of life. It rests in peace. It has met its maker. This is an ex-prerogative authority of the British Crown! I almost spontaneously walked into that impression during my presentation, and definitely should have run with it, too, but I pulled back from that at the last second because I had already code-swtiched into RP inadvertently elsewhere in my presentation. (Two of my close friends in the audience that day noted how I code-switched a couple of times into an RP accent but thought that few others had noticed it).

Regular Dissolution Pursuant to the Fixed-Term Parliaments Act 

Under the Fixed-Term Parliaments Act, general elections now take place every five years on the first Thursday in May.  The first scheduled election occurred on 7 May 2015, in which the British Conservatives won – much to everyone’s surprise – a parliamentary majority.

While the Queen used to dissolve parliament sometime within its constitutional limit of five years on the advice of the Prime Minister, this new law now ensures that parliament dissolves automatically by efflux of time, without any intervening royal proclamation. However, the law allows for some flexibility in setting the voting day; the Prime Minister may issue a statutory instrument to delay the polling day by not more than two months – but only if the Commons and Lords each pass a resolution approving of the draft of the statutory instrument beforehand.[1]

Curiously, the Act contains a non-derogation clause that preserves the Queen’s power to prorogue on the advice of the prime minister: “This Act does not affect Her Majesty’s power to prorogue Parliament.” The Act also preserves the conventional (rather than statutory) limits on the prerogative of summoning parliament. After the automatic, statutory dissolution of Parliament, Her Majesty-in-Council must issue a proclamation for the summoning of the new parliament, which would convene, by convention, within twelve days after voting day.[2]

Two Procedures for Early Dissolution Pursuant to the Fixed-Term Parliaments Act

In order to preserve the fixed term of the parliament, the law has also radically altered the Confidence Convention. If there was ever any doubt over the veracity of Jonathan Malloy has called “The Responsible Government Approach,” , the Fixed-Term Parliament Act, 2011 shows that when you consciously prune or uproot one part of an organic whole like Responsible Government, which was never designed but which instead evolved practically over time,  you do in fact have to reform or destroy the system root and branch. In an organic system like Responsible Government, all components are, by definition, intertwined with one another and cannot be separated into discrete units.

There is now only one method by which the British House of Commons can withdraw its confidence from the government: it must pass an explicit motion of non-confidence. This means that if the House of Commons votes against an Address in Reply to the Queen’s Speech, a major government bill, or a supply bill, it no longer automatically withdraws its confidence from the government. There is no longer any such concept in the British House of Commons. In addition, the government can no longer declare its bills matters of confidence. Furthermore, the government can no longer interpret losing a vote or losing the ability to control the conduct of business an automatic withdrawal of confidence. In the Westminster Parliament, it is no longer possible for the Commons to withdraw its confidence from the government automatically by voting against key legislation – that’s how radical the Fixed-Term Parliaments Act, 2011 truly is. 

Section 2 of the Fixed-Term Parliaments Act, 2011 also sets out two procedures by which Parliament may dissolve itself before the scheduled elections. The first procedure, set out in section 2(1), does not touch upon whether the Government still commands the confidence of the Commons, and the second procedure, contained in section 2(3), sets out a form of constructive non-confidence.

First, Parliament could pass a motion with a two-thirds super-majority in the form, “That there shall be an early parliamentary general election.” While the dissolution itself would occur pursuant to the vote and without the involvement of the Crown, the Prime Minister would then have to advise the Queen to issue proclamations for the return of writs and the summoning of the next parliament.

Second, the Commons could withdraw its confidence from the Government through a simple majority and properly worded motion, “That this House has no confidence in Her Majesty’s Government.” If an alternative Government cannot gain the support of the Commons within fourteen days through a confirmation vote on the motion, “That this House has confidence in Her Majesty’s Government,” then the Parliament dissolves automatically in order to break the impasse.[3] The defeated government would remain in office but exercise restraint under the caretaker convention during the writ.[4]

Conclusion: Succession Crisis in the Premiership? 

Prime Minister Cameron spoke outside of Number 10 a few hours after Leave won the referendum. Since Cameron had supported the United Kingdom’s Remaining in the European Union, he decided that he could no longer, in good conscience, remain as Prime Minister and carry out a policy that he opposes.

I will do everything I can as Prime Minister to steady the ship over the coming weeks and months, but I do not think it would be right for me to try to be the captain that steers our country to its next destination. This is not a decision I’ve taken lightly. But I do believe it’s in the national interest to have a period of stability, and then the new leadership required.

There is no need for a precise timetable today, but in my view we should aim to have a new prime minister in place by the start of the Conservative Party conference in October. Delivering stability will be important, and I will continue in the post as Prime Minister with my Cabinet for the next three months. 

Thus far, section 2 of the Fixed-Term Parliaments Act has never been put the test, but it almost certainly will be after Cameron resigns the premiership later this year and gives way to a successor – perhaps Boris Johnson – who campaigned for Leave. This new prime minister could then invoke Article 50 of the Treaty of Lisbon and table any necessary legislation before parliament in order to promulgate the United Kingdom’s withdrawal from the European Union into force, since the referendum itself does not promulgate anything into force but merely highlights the popular will.

The procedure under section 2(3) of the Fixed-Term Parliaments Act institutes European-style confirmation voting for mid-parliamentary transitions of power between one prime minister and ministry to another. It also raises significant questions that have thus far gone untested and derogates from the prerogative authority of the Crown to appoint a Prime Minister. The confirmation vote, “That this House has confidence in Her Majesty’s Government” applies after the Commons has already withdrawn its confidence from the previous government under the precisely worded motion stated above – which in turn means that the Queen would have to appoint a prime minister on and in accordance with the advice of the House of Commons. In this manner, the Fixed-Term Parliaments Act’s radicalism extends to regulating the Sovereign’s authority to appoint a Prime Minister, in addition to putting the prerogative authority over dissolution into abeyance and to codifying the old Confidence Convention out of existence.

This in turn raises more questions about prime ministerial succession. Once Cameron resigns and the Conservative Party has elected a new party leader, the Queen would probably appoint that person Prime Minister and Cameron’s successor as First Lord of the Treasury. Since Cameron would not resign because of a vote of non-confidence in the Commons, but instead in effect because of a vote of non-confidence from the British people, the Queen could probably appoint his successor without reference to the Fixed-Term Parliaments Act. However, even if the Fixed-Term Parliaments Act would not, strictly speaking, affect the prime ministerial succession when a prime minister chooses to resign without having first lost a vote of confidence, parliament could then very easily call the Queen’s appointment of the new Conservative Party’s leader into question by invoking the procedure under section 2(1) of the Fixed-Term Parliaments Act and passing a motion on a simple majority “That his House has no confidence in Her Majesty’s government.”

In short, whoever succeeds David Cameron – whether Boris Johnson or someone else – will not be able to hold an early general election at will, because the Fixed-Term Parliaments Act guarantees that only the House of Commons can make that decision.

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[1] United Kingdom. Parliament of the United Kingdom, Fixed-Term Parliaments Act, 2011 (London: Parliamentary Copyright, 2011), 1-4. British statues normally delegate authority to an individual minister rather than to Her Majesty-in-Council, which in practice means the Cabinet acting collectively. In contrast, the Parliament of Canada normally delegates authority to the Governor-in-Council.
[2] United Kingdom. Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and the Rules on the Operations of Government. 1st Ed. (London: Crown Copyright, October 2011): 13.
[3] United Kingdom. Parliament of the United Kingdom, Fixed-Term Parliaments Act (London: Parliamentary Copyright, 2011), 1-4.
[4] United Kingdom. Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and the Rules on the Operations of Government. 1st Edition. (London: Crown Copyright, October 2011): 17.

Posted in Confidence Convention, Constitution (Conventional), Crown (Powers and Office), Dissolution, Fixed-Date Elections, Reform | Leave a comment

Does Budget 2016 Acknowledge That Electoral Reform Won’t Happen Before 2019?


 

Budget 2016

As I noted in my column “Time Has Run Out on Electoral Reform,” it is too late to implement a proportional system like MMP or STV in time for the next scheduled federal general election in 2019.  This is because the process of switching from SMP to MMP or STV —from tabling the electoral reform bill in the House of Commons to the Governor General giving the bill royal assent and making it law; to the electoral boundary commissions undertaking their consultations and establishing the new borders of electoral districts — takes over two years, possibly closer to three years. The Special Committee on Electoral Reform is scheduled to table its final report on 1 December 2016, after which parliament would have to consider a bill amending section 51(1) of the Constitution Act, 1867 and section 313(1) of the Canada Elections Act. The last bill amending the population formula in section 51(1) of the Constitution Act, 1867 took six or seven weeks to pass, but with little debate because it kept the principles of the electoral system itself intact. It stands to reason that a bill that proposes to alter the electoral system would take longer to pass because it would be more controversial.

When I was looking through my notes today, I discovered that the Trudeau government has tacitly — but perhaps unintentionally — acknowledged these logistical considerations in Budget 2016, because it  allocates funds and scheduling public consultations for the upcoming special committee on electoral reform over a period of four years.[1]

The Government has committed to restore public trust and faith in the political system by demonstrating to Canadians that their votes count and help shape the policies their governments pursue. As a first step, the Government is committed to working with Parliamentarians to establish a special all-party committee with a mandate to study electoral reform options that would be the basis for a cross-country consultation. Budget 2016 proposes to provide up to $10.7 million over four years, starting in 2016–17, to conduct outreach, raise awareness and encourage the participation of Canadians in consultations on voting system reform. This will complement the work of the Parliamentary committee so that reforms to our democratic institutions are developed through an open and transparent engagement process that includes all Canadians.

If the Trudeau government intends to conduct “consultations on voting system reform” on a budget of $10.7 million over four years, starting in fiscal year 2016, then, logically, it cannot claim also that the next scheduled general federal election in 2019 would be conducted under a new system — unless they intended on consulting  the public retroactively on a decision already made. The funding will run to 2019 if the four years are inclusive of 2016, but parliament would have to have passed the law implementing a new electoral system well before then.

As this sentence is written, the logical and grammatical meaning is that the consultations on switching electoral systems would take place over four years, which in turn means that no decision would be made during that same period. It also mentions conducting outreach and raising awareness on voting system reform — but it does not mention implementing a new system.

I suppose that it is possible that Department of Finance meant that the this four-year program would include both consultations before changing the electoral system and outreach after parliament has changed it. But, at best, the phrasing is ambiguous, and, at worse, this is simply not what Budget 2016 means.

But why would the Trudeau government both promise to switch the electoral system in time for the next scheduled election in 2019 and allocate funds to conduct consultations on changing the electoral system that would not run out until well after it is too late to switch to another electoral system in time for 2019? Perhaps the Conservatives and New Democrats should ask the Liberals to clarify the significance of this passage contained on page 209 of Budget 2016.

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 [1] Canada, Department of Finance, Budget 2016: Growing the Middle Class (Ottawa: Her Majesty the Queen in Right of Canada, 2016), 209.

Posted in Electoral Reform, Reform | Leave a comment

Scott Reid Quoted My Article on Electoral Reform During Question Period


Scott Reid Mentions Me in Commons2

During Question Period on 13 June 2016, Scott Reid, MP for Lanark-Frontenac-Kingston and Conservative Shadow Minister for Democratic Institutions, referenced my article “Time Has Already Run Out On Electoral Reform”, published by the Macdonald-Laurier Institute’s Inside Policy. I am pleased that he promoted my argument on the official parliamentary record and gave positive coverage of the Macdonald-Laurier Institute’s excellent journal!

You can read this exchange in the original Debates on the website of the House of Commons. You can also watch the exchange on CPAC, starting at 17:45 and see Scott Reid breathe life into my words.

Scott Reid (MP for Lanark-Frontenac-Kingston, Conservative):

When it comes to electoral reform, Mr. Speaker, the Liberals give a whole new meaning to the phrase, “a penny for your thoughts”.

Here is why a referendum is essential. A paper published last week by the Macdonald-Laurier Institute said that the government’s December 1 deadline meant that irrespective of what the committee actually reported, the only electoral reform option that would be on the table happened to be the one the Prime Minister had favoured all along due to the short timeline in which it could be implemented.

Is not the fact that the fix is in the reason why we need to have a referendum on that proposal when it comes to people?

Hon. Maryam Monsef (Minister for Democratic Institutions, Liberal)

Mr. Speaker, the member opposite knows we have entered this process with an open mind. We are reaching out to Canadians and finding out from them what values and principles they would like reflected in their electoral reform. I urge the member opposite to consider contributing meaningfully to the all-party committee, and look forward to the work of that committee and its report on December 1.

After the Minister’s rhetorical gymnastics of ambiguity, Reid then asked a follow-up question and quoted the concluding line of my article.

Scott Reid (MP for Lanark-Frontenac-Kingston, Conservative):

Mr. Speaker, I would like to encourage my open-minded colleague opposite to consider the following.

I am going to quote from that paper, which states, “the only electoral reform that could be implemented in time for the … election in … 2019 is [ranked ballots in single-member districts]; quite simply, time has run out on implementing [other alternatives]”. The paper goes on to say, “In a non-coincidental coincidence, the only system that Parliament could adopt in time for 2019 is the very same system that [the] Prime Minister…himself has identified as his own personal preference”.

 Therefore, the fix is in. Is that not why we need to have a referendum to decide whether what the Prime Minister prefers is what Canadians want to have?

Hon. Maryam Monsef (Minister for Democratic Institutions, Liberal)

Mr. Speaker, while I appreciate and admire the member opposite’s respect for the media, which I share, I believe our responsibility is to reach out to experts and academics to hear from members of our free and independent press, but also to reach out to our communities and to hear from our constituents how they would like to see their democratic institutions modernized. I look forward to that kind of insight and that kind of feedback from the member opposite.

It is very amusing to learn from the Minister for Democratic Institutions that I am now part of “the media” in this country; that is an honour that I could very much do without. If the Minister truly believes that she has a “responsibility to reach out experts and academics,” then she ought to pay close attention to my arguments and Emmett Macfarlane’s.

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Posted in Electoral Reform, Reform | 1 Comment

Ontario’s Next Provincial General Election: October 2018, Not June 2018


Ontario Election in October 2018, Not June

On 13 June 2016, the Canadian Press reported  on Premier Wynne’s  mid-parliament cabinet shuffle, which will take her government into the next provincial election. According to the Canadian Press, the next provincial general election is scheduled for June 2018 — but in fact, it is scheduled for October 2018. (I’ve posted these screenshots in case that the Canadian Press updates its article accordingly!)

While the last provincial general election did occur on 12 June 2014, the provincial fixed-date election law does not schedule provincial general elections precisely four years apart. Instead, it uses the first Thursday in October as the baseline, irrespective of whether the previous general election followed the schedule, or whether the Premier advised the Lieutenant Governor to dissolve the previous legislature early.

Section 9(2)(b) of the Election Act states that the next scheduled provincial election occurs in the October four years after the return of the previous writs, rather than four years to the month after the return of previous writs. The last provincial election occurred earlier than scheduled when Premier Wynne advised the Lieutenant Governor to dissolve the 40th Legislature early, in May. The Lieutenant Governor issued the writs on 7 May 2014 for a general election on 12 June 2014. This early election was originally scheduled for October 2015 and would have very inconveniently overlapped with the federal general election.

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.  2005, c. 35, s. 1 (3).

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.  2005, c. 35, s. 1 (3).

This 41st Legislature is therefore scheduled to live for 4.5 years rather than 4 and to be dissolved in October 2018, not June 2018– though nothing prevents Premier Wynne from advising and receiving an early dissolution in this instance as well.

This same feature of the federal fixed-date election law explains why the 41st Parliament also lasted closer to 4.5 years rather than 4, with general elections in May 2011 but October 2015. The Canadian Press’s mistake reflects how ingrained four-year parliaments have become in the political class. But if anything, the fixed-date election laws really ought to stipulate that the next scheduled general election would occur in the same month as the previous in order to prevent some legislatures from living for 4.5 years rather than 4.

While the Wynne government indicated on 4 June 2016 that it supports the Chief Electoral Officer’s recommendation to move the date from fall to spring, the legislature has not yet amended the Election Act accordingly. (The Chief Electoral Officer of Ontario recommended a date in early June). Until such a bill receives Royal Assent, the next provincial general election remains scheduled for October 2018 rather than for June 2018. Let us not pre-empt the legislative process so eagerly here!

 

CP Ontario Election in 2018

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Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections, Reform | 2 Comments