The Provinces Show How Fixed-Date Election Laws Affect Dissolution by Efflux of Time

You can read my article on dissolution by effluxion here: Bowden, James W.J. “When the Bell Tolls for Parliament: Dissolution by Efflux of Time.” Journal of Parliamentary and Political Law 11, no. 1 (2017): 129-144.

As sometimes happens with writers, I only noticed a better way of expressing my argument after publication! But I can at least share this update here and ask that you treat it as a supplement if you choose to read the PDF. This following goes with the material on page 135 of the manuscript. Also, I apologise for having misattributed the surname of the name of Prince Edward Island’s Premier; I wrote “MacLaughlin” instead of “MacLauchlan.” (If I’m not mistaken, they are pronounced in the same way, and this was the source of my mix up).

I think that the strongest evidence in support of my claim that the fixed-date election laws have lowered the threshold from the maximum life of the parliament or legislature derives from how Manitoba, Saskatchewan, and Prince Edward Island chose to react to the fact that their provincial general elections were originally scheduled to coincide with the federal general election of 2015. These three provinces were also scheduled to hold their general elections in October 2015. So, too, was Ontario for a while, but the early dissolution of the 41st Legislature in May 2014 re-set the clock and prevented the scheduled overlap from occurring in 2015. And Ontario has now also altered the schedule of its elections so that they happen every 4th June, starting in June 2018, instead of every 4th October, as they previous were scheduled.

The legislatures of Manitoba, Saskatchewan, and Prince Edward Island all passed legislation amending their fixed-date election laws to the effect that if their provincial general elections were ever scheduled for the same time as a federal general election, they would postpone their provincial general elections by six months to the following spring.[1] Manitoba and Saskatchewan did indeed hold general elections in April 2016, instead of October 2015. But as it turned out, Prince Edward Island did not need to invoke its legislation in October 2015, because Premier Wade MacLauchlan advised an early dissolution in May 2015. But since the next federal election and Prince Edward Island’s next provincial election are both scheduled for October 2019, Prince Edward Island will have to invoke the procedure under the new legislation to extend the life of the current legislature to spring 2020 — which means that this current 65th Legislature will be scheduled to live for the full five years.

Why would all three of these provinces have taken this course of action? Why would their premiers simply not have decided to postpone their province’s elections through prerogative authority alone, on the grounds that the Constitution Act provided that provincial legislatures can live for a maximum of 5 years? The answer is very simple: the justice departments in these three provinces all concluded that their province’s fixed-date election laws had, in fact, decreased the maximum lifespan of the legislature to somewhere between four and five years. Therefore, only by amending these laws could the legislature increase its maximum lifespan beyond four years and to somewhere between four and five years. At the very least, these provinces’ justice departments believed that this is probably true, or the best legal advice.

Therefore, I would argue that the recent precedents of how Manitoba, Saskatchewan, and Prince Edward Island amended their fixed-date election laws in order to extend the lifespan of their legislatures if federal and provincial general elections would ever overlap demonstrates that my argument is correct. Fixed-date election laws have in fact lowered the maximum lifespans of provincial legislatures and the Parliament of Canada. They would dissolve by efflux of time (i.e., automatically) when they reach their maximum life. This is the only explanation that makes sense and accounts for why these three provinces acted in this manner.

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[1] Manitoba, Legislative Assembly. The Election Financing Act and Elections Amendment Act. Bill 33, 40th Legislature, 1st session, 2012; Saskatchewan, Legislative Assembly. The An Act to Amend the Legislative Assembly and Executive Council Act, 2007. Bill 35, 27th Legislature, 1st Session, 2012; Prince Edward Island, Legislative Assembly. An Act to Amend the Election Act. Bill 34, 64th General Assembly, 4th Session, 2014.

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Summary of My Panel at the Constitution at 150 Conference

As far as I could tell, the whole in the ground in the foreground of this photo is the site of the old legislature that the Orangemen burned down in 1849.

An example of the wonderful architecture in Montreal. This cathedral reminds me of that in Florence.

I thank Professor Matthew Harrington for having invited me to present at this Constitution at 150 Conference, and for having organized such an interesting series of talks from 16 to 18 May. In this entry, I provide an account of the first panel of the conference, in which I presented on Canada’s Legal-Constitutional Continuity, 1791-1867, and in which Professor Ryan Alford of Lakehead University presented on the true meaning Responsible Government in the preamble of the British North America Act, 1867.

You can download a copy of my PowerPoint presentation here: Canada’s Legal-Constitutional Continuity, 1791-1867. I have also written a manuscript on this topic and will try to find it a publisher.

My Presentation

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“Thou Dost in Us Command”: Senate Considers Restoring Original Lyrics of O Canada

The upcoming issue of The Dorchester Review will include my article “O Canada and the Two Solitudes,” in which I review the history of the parliamentary debates on altering the lyrics to the English anthem, from 2002 to early 2017.

So I must write about this latest development here on Parliamentum because the issue will soon go to press and should be mailed out in a few weeks.

On 18 May 2017, Senator Donald Neil Plett moved an amendment at Third Reading to Bill C-210, An Act to Amend the National Anthem Act (Gender) which would still conform to the principle of the bill of removing any lyrics from the English O Canada that refer to the male sex. Instead of replacing “True patriot love in all thy sons command” with “True patriot love in all of us command,” Senator Plett’s amendment would restore Robert Stanley Weir’s original lyrics from 1908: “True patriot love thou dost in us command.” Those original lyrics also “gender-neutral” since they use the second person singular subject pronoun “thou” (equivalent to “you”).

Hon. Donald Neil Plett: Therefore, honourable senators, I move:

That Bill C-210 be not now read a third time, but that it be amended in the schedule, on page 2, by replacing the words “in all of” with the words “thou dost in”.

The Hon. the Acting Speaker: It is moved by Senator Plett, seconded by Senator Wells that Bill C-210 be not now read a third time but that it be amended in the schedule, on page 2, by replacing the words “in all of” with the words “thou dost in.”

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Elaine McCoy: I would like to study this amendment at greater length, in the event that there may be a point of order. In any event, I would like to take the adjournment today.

(On motion of Senator McCoy, debate adjourned.)

The Rules of the Senate allow for amendments at Third Reading. So it is unclear what Senator McCoy’s point of order would be, especially given that Plett’s amendment conforms to and complements the principle of the bill that the Senate accepted at Second Reading.

If the Senate approves this amendment, then the bill would be sent back to the House of Commons for consideration. At this rate, Parliament will not enact any alterations to the lyrics of O Canada for 1 July 2017. 

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My Piece on “Dissolution by Efflux of Time” Is Published in the Journal of Parliamentary and Political Law

I’m very pleased to announce that my article “When the Bell Tolls for Parliament: Dissolution by Efflux of Time” has come out in the latest issue of the Journal of Parliamentary and Political Law.

Incidentally, the germ of this manuscript started out as an answer to a question that one of my readers asked me last year on something pertaining to fixed-date election laws, so I’m also grateful for the contributions that you make here on Parliamentum.

Also, by a curious coincidence, an article by Professor Ryan Alford of Lakehead University appears in this same issue — and he and I will be co-presenters on the first panel for the Constitution at 150 Conference, which will start next Tuesday in Montreal. (He also cited the article that Nick MacDonald and I wrote for the JPPL in 2012, which adds another wonderful layer of coincidence to it all!)

I encourage you to subscribe to the Journal of Parliamentary and Political Law or check it out in your university library.

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Senator Meredith Must Trigger Section 30 in Order to Resign

Senator Meredith has announced his intent to resign his place in the Senate rather than go down in history as the first Senator to be expelled, rather than disqualified, from the upper chamber — rather like how Richard Nixon resigned the presidency before being impeached and removed from office. The political scientist in me was hoping that the Senate would expel Meredith because it would be “interesting.”

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