Harper Showed the Futility and Uselessness of Canadian-Style Fixed-Election Laws in 2008
As the CBC reported in late August 2008, Prime Minister Harper described the 39th Parliament as “dysfunctional”; in other words, he had judged that his minority government would soon lose control of the legislative agenda and, in effect, the confidence of the Commons. Harper then met individually with New Democratic leader Jack Layton and Bloc Quebecois leader Gilles Duceppe, but Liberal leader Stephane Dion opted not to meet him. Harper shrewdly cited these meetings as evidence that the 39th Parliament would have become too dysfunctional in its scheduled fall sitting to pass any government bills. On 26 August 2008, Harper remarked:
There’s a growing number of parliamentary legislation that is not moving. If you look at most of the legislation that’s still left from the last session, we see little prospect of most of that moving forward.
We [Dion and I] don’t need to wait three weeks for a meeting to occur. […] As I have already said, this shows a fundamental difference between the government and the opposition parties, and particularly Mr. Dion, who has proposed an economic agenda [the carbon-tax plan] which is completely the opposition of the government’s program.
Shortly thereafter, Harper advised Governor General Michaelle Jean to dissolve the 39th Parliament on 7 September 2008 and to call an election for 14 October 2008. Prime Minister Harper met with a howling zoo of critical journalists and pundits who derided him for having “broken his own law” on fixed elections.
In fact, Prime Minister Harper did not such thing. All the federal and provincial fixed-elections laws deliberately keep intact the Crown’s power of dissolution precisely in order to avoid the prospect of amending the Constitution Acts. Ontario’s law does so through the phrase, “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.”Under our system of Responsible Government, Ministers of the Crown take responsibility for all acts of the Crown, and the Lieutenant Governor thus acts on and in accordance with ministerial advice (save for exceptional circumstances, which would not apply to this case). Consequently, the federal Prime Minister and provincial Premiers do in fact possess the authority to advise the Governor General or Lieutenant Governors to dissolve and call a general election. The government does not first have to lose the confidence of the elected assembly. Only a constitutional amendment under s.41(a) that modifies or eliminates the Crown’s power of dissolution and transfers this authority to parliament could implement true fixed elections, as the British Fixed-Term Parliaments Act of 2011 has done. That’s why Canadian governments deliberately avoided the prospect of “opening the constitution” and instead introduced these decorative and redundant style of fixed elections.
Wynne Now Faces the Useless Fixed-Election Law Under Similar Circumstances
The 2nd session of the 40th Legislature of Ontario resumed on 9 September 2013, and Premier Wynne faces almost identical circumstances: she leads a single-party minority government in a hostile but election-averse minority parliament, and the Legislature of Ontario also followed the trend by passing a useless Canadian-style fixed-elections law. Wynne also made a remarkably similar statement. Will Wynne face the same howling zoo of criticism from the media if she exercises his constitutional right as Premier to advise and receive an early dissolution without first having officially lost the confidence of the Assembly? I supsect that she would not.
Premier Wynne warned the Conservative and New Democratic opposition that they will face an early dissolution if her minority government loses control of the legislative assembly’s agenda. Wynne crafted a deliberately ambiguous threat toward this tenuous minority parliament; adopting both of Prime Minister Harper’s tactics of 2008 almost exactly, Wynne pledged to meet with Conservative leader Tim Hudak and New Democratic leader Andrea Horwath, but placed in the responsibility of an early election squarely on the opposition parties. The Premier told reporters:
There’s not an indefinite option to continue to wrangle on every single piece of legislation. […]
I want to be clear with people that I’m going to meet with the leaders of the opposition and I’m going to suggest to them that there’s some things we can work together on. […]
If there is absolutely no possibility for collaboration, then the legislature will grind to a halt, and the Opposition will have made clear that they want a general election. […] The practical reality is if the House cannot function, and if we can’t see a way forward, then the Opposition will have to explain to people why they think an election is the better option.
Crucially, the Premier did not specify whether she would advise Lieutenant Governor Onley to dissolve the legislature unprompted, as Prime Minister Harper did in 2008, or whether she would advise dissolution after the assembly has clearly withdrawn its confidence from the government, as Harper did in 2011. Premier Wynne can choose either option. In particular, Wynne would be well within her rights and responsibilities to as Premier to conclude that since her government has lost control of the legislative agenda and can no longer pass its legislation, that only a direct appeal to the electorate through early elections could break the deadlock and dysfunction of the 40th Legislature. The provincial legislature’s bizarre rules on motions of non-confidence give the Premier more of an incentive to pre-empt the assembly and advise dissolution. Unlike at the federal level, the opposition can only introduce and vote on a motion of non-confidence against the government with the government’s consent.
Inconsistent Reaction from Scholars and the Media
If the most recent media coverage offers any long-term indication, Wynne – unlike Harper – would not have to contend with the hostile criticism of scholars and journalists if she chooses to advise an early dissolution before her government loses the confidence of the Assembly. The CBC, the National Post, the Globe and Mail, and the Toronto Star have thus far all taken reasonable positions on this issue; curiously, however, none have even mentioned the fixed-elections law of Ontario. In this case, the media should mention it not to criticise the Premier, but merely to highlight the absurdity of Canadian-style fixed elections, all of which deliberately preserve the Crown’s power to dissolve and thus do not constrain the First Ministers. The National Post later reported that Wynne has met with Hudak, but that Horwath has declined such a meeting. Wynne has followed Harper’s method; she would now only have to advise the Lieutenant Governor to dissolve the legislature, unprompted, in order to hold a snap election.
Some journalists might counter that since Harper campaigned on fixed elections in 2006, they regard his early dissolution of 2008 as hypocritical and therefore newsworthy. But this is a political argument, not a legal-constitutional one. And surely the uselessness of the Canadian model of fixed-election laws – not Harper’s apparent hypocrisy – should have defined the debate.
Scholars and journalists who claim to oppose the powers of the Crown on prorogation and dissolution do so consistently, irrespective of whether a Conservative or Liberal first minister advises and takes responsibility for those acts of the Crown. Premier Wynne has the authority to advise an early dissolution in 2013, even if her government does not first lose the confidence of the assembly, precisely because Ontario’s fixed-election law preserves the Crown’s power of dissolution, which the Lieutenant Governor exercises on the advice of the Premier. If Wynne decides to rely on that option in 2013 as Harper did in 2008, her early dissolution would only underscore that the current Canadian model of fixed-election laws does nothing substantive and attempted to solve a problem that never existed. Only a constitutional amendment could implement true fixed-term parliaments. Perhaps that’s a discussion worth having.
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