Characteristics and Purposes of the Fixed-Election Laws

Section 56.1 of the Canada Elections Act established fixed elections for the Parliament of Canada every four years on the third Monday in October, but necessarily preserves the constitutional powers of the governor general, because otherwise, this section would have been unconstitutional. “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion” because the Constitution Act, 1982 stipulates that any proposed constitutional amendment affecting the powers of the offices of the Queen, Governor General, and Lieutenant-Governors must pass the Parliament of Canada and all ten provincial legislatures. Such an amendment would change Article III of the Constitution Act, 1867, which deals with the executive powers. That is why in my previous post on this subject of “fixed elections” in Canada, I characterized the federal law, and all its provincial equivalents, as a means of amending the constitution by proxy: they attempt, somewhat paradoxically, to create through statute a new constitutional convention whereby first ministers voluntarily restrain their power. However, conventions are not justiciable but politically enforceable; breaking a convention on fixed elections thus entails political consequences, like the potential punishment from an unforgiving electorate annoyed at the prospect of early dissolution and elections.

The Canadian fixed elections not only attempt to place voluntary, political restraints on first ministers and their exercise of crown prerogative, but by establishing fixed elections every four years, they also attempt to shorten the constitutional limit of a parliament’s duration from five years to four – but without amending the written constitution. Fixed-election laws thus codify the other convention (though I cannot call it a “constitutional convention”) that, in a majority parliament, elections do normally occur every four years rather than every five. This convention applies to the Parliament of the United Kingdom, the Parliament of Canada, and virtually every other Westminster parliament whose statutory or constitutional limit is still formally five years. Clearly, the Canadian approach to fixed-election laws, as pioneered in the provinces, intends to restrain the premier or prime minister from requesting an early dissolution at a moment opportune and advantageous to his governing party in a majority parliament. However, because of the clauses that preserve the Crown’s powers, these laws will, paradoxically, remain in the realm of political enforceable convention. This unusual approach responds to the perils of “re-opening the Constitution” that most Canadian political scientists dread.

Problems with the Canadian Approach

I wrote earlier on being undecided on the Canadian approach of fixed-election laws, though the other post probably gave the impression that I was leaning against them. After thinking on the issue this past week, I have indeed come to oppose the Canadian model of fixed-election laws for the following reasons.

Christy Clark, Leader of the BC Liberals and Premier of British Columbia

First, the laws serve only as a moral restraint on the sitting first minister, and not as a legal or constitutional constraint on the office of premier or prime minister, which renders them redundant. Prime Minister Harper demonstrated the inefficacy of the Canadian approach in 2008 when he advised an early dissolution, which despite his detractors’ claims, was legal. He took on the risks of political enforceability and dealt with the consequences in the 40^th parliament. The new leader of the BC Liberals and Premier of British Columbia Christy Clark may advise an early dissolution in a few weeks in September 2011, according to some media reports, despite the Constitution of British Columbia, which calls for the next general election to occur in May 2013. Unlike Newfoundland’s fixed-elections law, British Columbia’s does not include a provision whereby a premier who takes office during the same parliament in which his or her predecessor resigned must advise dissolution within 12 months. The Premier of British Columbia can of course legally advise and then should receive an early dissolution. But what is the purpose of the law? It becomes redundant. Stephen Harper believes that “the purpose of a fixed-election date is to create certainty” and that “you can only have certainty about a fixed-election date in the context of a majority government.” If Christy Clark requests an early dissolution, then we must qualify Stephen Harper’s interpretation: we can only have certainty about a fixed-election date in a majority parliament where the first minister leads his or her party for the entire life of that parliament and into the next election.

I can only hope that all the scholars who criticized Prime Minister Harper’s decision in 2008 would also criticize Premier Clark just as strongly if she does indeed advise early dissolution. If not, one could only conclude that the scholars who criticized Prime Minister Harper in 2008 intended to attack him personally due to ideological enmity, and not because of his interpretation of section 56.1, which would in turn undermine the academic credibility and objectivity of the scholars in question.

Premier McGuinty of Ontario

Second, the critics of fixed elections argued that they would in effect extent the writ period by a few months. They were right. While I don’t use “Americanize” as a pejorative like some critics of fixed-elections probably would, it is true that the fixed-election laws have created an American-style marathon campaign. I believe that this extended pre-writ campaign detracts from governing and empowers the bureaucracy (the executive) at the expensive of the legislature. The McGuinty government passed a fixed-elections law in Ontario in 2005, and the first fixed election occurred in 2007 for the first Thursday in October, and every four years thereafter. At the time of writing in mid-August 2011, the province of Ontario has clearly already entered a pre-writ period; the door-knockers are already canvassing for all parties – but the Lieutenant-Governor hasn’t issue the writs! This extended pre-writ campaign, which in Ontario probably began in earnest in April 2011, now eclipses the legal, writ-period campaign and detracts from the functioning of the provincial legislature, as MPPs focus on re-election months prior to the election rather than on the legislative session. Under the old system, electoral speculation and pre-writ campaign would last a few weeks at most – not six months. This extended de facto writ period also has implications for campaign financing and possibly even the caretaker convention, which could become the subject of other posts.

Third, if Manitobans, Saskatchewanians, Ontarians, Prince Edward Islanders, and Newfoundlanders & Labradorians all elect majority parliaments this year, then all of their fixed-election campaigns will overlap to some extent with the federal campaign in 2015. Unlike in the United States, where the Republican and Democratic Parties are seamlessly integrated at the state and federal levels, Canada’s provincial and federal parties are largely separate (apart from the New Democratic Party). But in any given province, federal and provincial volunteer bases overlap (in Saskatchewan, for instance, largely the same right-wingers would volunteer for the Saskatchewan Party and the Conservative Party of Canada). Our federal and provincial elections are completely and constitutionally separate, so these overlaps could pose some unforeseen problems for all the political parties.

Fourth, I can’t fathom why Saskatchewan, Manitoba, Ontario, and Newfoundland all decided to schedule their fixed elections in October and November. Particularly on the Prairies, snow and early winters are not uncommon in October. Why would they hold the elections during a cold part of the year? At least British Columbia had the decency to schedule its fixed elections in May, a more pleasant month. New Brunswick chose the end of September.

Fifth, Canadian approach muddles parliamentarism. As I mentioned in the post on Harper’s early dissolution of 2008, while the British approach, if passed, would emphasize “fixed parliaments”, which puts the onus on Parliament as the legislative branch where it belongs, the Canadian fixations on “fixed elections” and constraining the first minister’s individual discretion concentrates almost exclusively on the political executive. Prime Minister Harper, and probably the other premiers (I haven’t examined any Hansards yet) characterized the fixed-election laws as such: they guarantee fixed-elections in a majority parliament, but in a minority parliament, they do not because the House might withdraw its confidence in the government, thus forcing the prime minister or premier to advise an early dissolution. This is not necessarily true in a minority parliament; if a coalition of opposition parties could command the confidence of the same parliament, then that parliament would not necessarily need to be dissolved. For reasons that I’ll set out later, I consider coalition governments undesirable, and elections preferable under those circumstances, but we must acknowledge that coalitions are in the realm of constitutional possibility, particularly if a single-party minority government losses the confidence of the House in a formal vote in the House. (I reject the idea that the opposition can constitutionally withdraw its confidence in the government outside of the House of Commons). But we must at least acknowledge all the possibilities from the outset.

Conclusion: Constitutional Amendment is Necessary for Real Change

In contrast to the Canadian approach, the Fixed-Term Parliaments Bill currently before the British Parliament would radically alter crown prerogative. It would set general elections every five years, thus maximizing the current constitutional limit on a British parliament, and permit an early dissolution only if the House of Commons itself voted in favour. The Draft British Cabinet Manual describes the bill: “A Parliamentary term would last five years unless the House of Commons voted (by a majority of two-thirds) to dissolve Parliament, or unless a government lost the confidence of the House and it proved impossible for an alternative government to be formed within 14 days.” If this bill were put before the Parliament of Canada, it would need to be presented as a constitutional amendment, and all ten provincial legislatures would subsequently need to pass it in order to achieve the unanimous consent that the amending formula requires for altering the powers of the offices of Queen and Governor General. The Fixed-Term Parliaments Bill represents a radical constitutional shift and a significant limitation on the crown prerogative and empowerment of Parliament vis-a-vis the government.

Canada could also adopt the Australasian approach. The Parliaments of Australia and New Zealand are constitutionally limited to a lifespan of only three years rather than five. (A formal limitation of the life of a Canadian parliament from five to three years would also require a constitutional amendment). Consequently, neither of these parliaments would need to consider something like the Fixed-Term Parliaments Bill or the Canadian fixed-election laws – because even a minority government could survive for three years. The Australasian approach would allow for the preservation of crown prerogative and create a neutral ground where the effluxion of time would act as the primary limitation on both the government and the House. As the Draft British Cabinet Manual says, parliaments dissolve automatically “when they expire after a period of five years.” Therefore the effluxion of time removes both the Prime Minister and the Governor General from the equation just as effectively as the Fixed-Term Parliaments Bill would.

I hope that Alberta, Quebec, and Nova Scotia remain the redoubts of the traditional system and refuse to adopt fixed-election laws, because this federation ought to include a few jurisdictions that do things differently, and because of all the problems associated with the Canadian approach to fixed-election laws.

Related Posts

• Fixed Elections in the Provinces, Part I
• Fixed Elections in the Provinces, Part II
• Fixed Elections: Stephen Harper Did Not “Break His Own Law” in 2008