Judging by recent media reports, the answer depends upon the length of the writ and not necessarily on the date of the election itself, as the case of Quebec in 2018 and Canada in 2015 demonstrate.
We first encountered this problem with the federal general election of 2015, which was the first to occur as scheduled by the fixed-date election legislation (section 56.1 of the Canada Elections Act) in October 2015 but which also saw the longest writ, at 79 days, since the 1870s, and therefore a dissolution around the Civic Long Weekend in August instead of in September. Since 2015, Canadian journalists have decided that “calling an early election” means (or at least includes) instances where the Prime Minister or Premier opts for a writ longer than the minimum number of days required by law. Of course, this scenario which affected the federal general election of 2015 and might describe Quebec’s general election of 2018 differs from instances where the First Minister has decided to pursue early dissolution such that the date of the election itself (i.e., the main voting day) occurs months or years before the date scheduled in a fixed-date election statute.
Since June 2018, French-language media in Quebec have been reporting on the de facto pre-writ election campaign under way in that province. One column mentioned the possibility of an “early election,” which I at first took to mean that the election would happen before the scheduled date. In fact, Marc-Andre Gagnon of Le Journal de Quebec meant that Premier Couillard would opt for a longer election campaign that would still see Quebeckers go to the polls on the scheduled date.
Three possible factors here come into play (though only the first two apply to Quebec):
- A fixed-date election statute which schedules the day of the election (i.e., the main voting day itself) in x month every four years;
- A statutory requirement that election campaigns last a minimum number of days (usually between 30 and 40); and,
- The absence of a corresponding statutory provision limiting the maximum number of days that an election campaign can last.
Quebec’s Fixed-Date Election Laws
Quebec adopted its fixed-date elections in 2013 but spread the relevant provisions of this concept across two statutes, La loi électorale du Québec and La loi sur l’assemblée national du Québec, which have to be read together. It is the only province to place its fixed-date election provisions in more than one statutes – so you might say that Quebec is distinct.
Section 129 of the Elections Act contains the main provision and schedules elections for the first Monday in October every four years, which puts the date of upcoming elections in 2018 on 1 October.
En application du deuxième alinéa de l’article 6 de la Loi sur l’Assemblée nationale (chapitre A-23.1), les élections générales qui suivent l’expiration d’une législature ont lieu le premier lundi du mois d’octobre de la quatrième année civile suivant celle qui comprend le jour de la fin de la législature précédente.
This section also contains the non-derogation clause preserving the Lieutenant-Governor’s authority to dissolve the legislature at any time on and in accordance with the Premier’s advice:
Le présent article n’a pas pour effet de porter atteinte au pouvoir du lieutenant-gouverneur de dissoudre l’Assemblée nationale avant l’expiration d’une législature.
This non-derogation clause emphasizes that under the normal course of events, the legislature dissolves automatically by efflux of time if it reaches its maximum lifespan with the line “the general elections which follow the expiration of the legislature.” Crucially, however, this wording takes into account the possibility that some legislatures might not “expire” but would instead be dissolved early, as occurred in Quebec in 2013 when Premier Marois obtained an early dissolution. The law also does not attach any conditions to the authority of the Lieutenant Governor, nor does it attempt to place any restrictions on how the Premier can advise the Lieutenant Governor.
Section 6 of La loi sur l’assemblée national du Québec goes farther than the equivalent provisions of other provincial statutes in explicitly limiting the maximum lifespan of a legislature to between four years and five years, instead of simply five years. It says that “each legislature expires on 29 August” every four years and repeats the non-derogation clause preserving the Crown’s authority over dissolution.
Une législature commence dès la réception par le secrétaire général, après des élections générales, de la liste des candidats proclamés élus transmise par le directeur général des élections en vertu de l’article 380 de la Loi électorale (chapitre E-3.3).
Chaque législature expire le 29 août de la quatrième année civile suivant celle qui comprend le jour du scrutin des dernières élections générales. […]
Seul le lieutenant-gouverneur peut dissoudre l’Assemblée nationale avant l’expiration d’une législature.
Taking together section 6 of the National Assembly Act and section 129 of the Elections Act means that Quebec’s 42nd general election must last a minimum of 34 days, between 29 August and 1 October, inclusive.
The English-language CBC reported on 7 August 2018 that “Couillard May Call Quebec’s Election Earlier Than Planned” and that Quebec’s general elections must last between 33 and 39 days. I think that the CBC derived that figure of a maximum writ of 39 days from section 131 of the Elections Act, which says:
Sauf dans le cas des élections générales tenues à la date prévue au deuxième alinéa de l’article 129 ou au premier alinéa de l’article 129.2, le scrutin a lieu le cinquième lundi qui suit la prise du décret si le décret est pris un lundi, un mardi ou un mercredi, et le sixième lundi si le décret est pris un autre jour.
Except in the case of general elections held on the scheduled date in the second clause of section 129 or in the first clause of section 129.2, the vote takes place on the fifth Monday following the issuing of the proclamation [of dissolution and return of writs and the summon of the new legislature pro forma] if the proclamation is issued on a Monday, a Tuesday, or a Wednesday, and on the sixth Monday if the proclamation is issued another day [i.e., Thursday, Friday, Saturday, or Sunday].
So if Couillard opts for dissolution and drawing up the writ on Thursday, 23 August, as the CBC article suggests, instead of on Wednesday, 29 August, then 1 October 2018 would still be the sixth Monday and the election would therefore fall on the same day. The election period could last for 40 days, 23 August to 1 October, inclusive. Quebec’s fixed-date election provisions constrain election campaigns in a narrow band between 34 and 40 days, inclusive , which provides consistency; any difference within that range hardly impose a grave burden on political parties or the electorate.
In any case, a longer election campaign would mean that the Lieutenant-Governor dissolves the 41st Legislature before 29 August – the day that the legislature would otherwise expire naturally by efflux of time. And since the National Assembly Act and the Elections Act both reaffirm that the Lieutenant-Governor can dissolve the legislature early at any time on the Premier’s advice, Premier Couillard could advise an “early dissolution” between 23 August and 28 August, inclusive, and the election itself would still happen as scheduled on 1 October. But this would mean not an “early election” per se, but instead a longer election campaign.
The Never-Ending Amendments to Fixed-Date Election Laws
In reality, Prime Minister Harper did not call an “early election” in 2015, and Premier Couillard of Quebec would likewise not call an “early election” in 2018, simply by extending the writ; these elections occurred and will occur on the precise day which Canada’s and Quebec’s fixed-date election laws scheduled them. Instead, Harper opted and Couillard might opt for longer election campaigns. Fixed-date election laws have already created de facto pre-writ campaigns in at least the six months prior to the elections that they schedule. What Harper did and what Couillard might do is simply make part of that de facto pre-writ campaign period part of the de jure writ, which in fact increases accountability by subjecting political parties to limits and rules on advertising and spending that apply only during the writ but not before the writ.
One possible solution lies in the bill that the Trudeau government recently tabled, which would prescribe a maximum duration of the writ of 50 days in addition to the minimum of 36 days already established. The bill would also amend the Canada Elections Act to recognize what has already happened by imposing limits on political advertising in the six months leading up to scheduled elections (thus from April to dissolution in September). Quebec has already prevented this problem, but any other provinces which have not might consider adopting Quebec’s model or similar wording to the Trudeau government’s bill C-76.
Ultimately, fixed-date election laws have created more problems than they’ve solved – and they never even solved the alleged problem that they were supposedly originally designed to solve: snap elections (as I’ve outlined here, here, and here). Manitoba, Saskatchewan, Prince Edward Island, Ontario, and Newfoundland and Labrador, have already amended their fixed-date election laws in order to avoid potential overlap with scheduled federal elections. British Columbia also altered its schedule from spring to fall. Once again, Quebec shows its distinctiveness, being the only province the original legislation of which provided that provincial elections can be delayed if they would overlap with either federal or municipal elections.
The Small Things Add Up
We should value precision and accuracy greater still in this age of post-modern post-truth or untruth and properly distinguish between these two things.
Others disagree. For instance, a few journalists took offence at my blog posts in the fall of 2016 regarding the schedule of Ontario’s general elections; one of them from the National Post even blocked me on Twitter, much to my amusement. They were reporting that the legislature of Ontario had amended the schedule of fixed-date elections from every fourth October to every fourth June even before the Wynne government had tabled the bill and later before the bill had become law. In other words, they were reporting that something had happened even though it had, in fact, not yet happened.
I found (and still find) that very odd if only because it was a pointlessly inaccurate omission that the journalists could have rectified in a few words, caveating their assertion into something like, “The Wynne government plans to introduce legislation” (or “has introduced legislation” as the legislative process progressed) that will shift scheduled elections from October to June, which means that the next provincial election will probably take place in June 2018. This incident illustrated strongly the Boys on the Bus mentality that too often affects journalists when they receive common briefings and then generate unconscious narratives after talking amongst themselves; this sloppiness opens up space for legitimate criticism of journalistic accuracy and erodes trust in the fourth estate as a whole, which, in turn, facilitates the rise of fake news in this social media age. The inaccuracy is both baffling and completely unnecessary. Dismiss me as a pedant if you wish, but know also the consequences of consistently imprecise and inaccurate journalism.
We should distinguish between snap elections, where the general election takes place several months or years before the date scheduled in fixed-date elections provisions, on the one hand, and longer election campaigns, where the general election still takes place on the scheduled date as outlined in a fixed-date election law but where the dissolution itself happens a few days or weeks earlier than the minimum duration of the writ period would require.
- Fixed-date Elections
- The Provinces Show How Fixed-Date Election Laws Affect Dissolution by Efflux of Time
- Ontario’s Next General Election Has Only Just Been Scheduled for June 2018
- Finally, A Media Outlet Writes an Accurate Story on Ontario’s Next Provincial Election!
- Do Journalists Who Cover Ontario Politics Know When the Next Provincial Election Is Scheduled?
- Ontario’s Next General Election Is Scheduled for October 2018, not June 2018
- The Mandate Problem and Fixed-Date Election Laws
- Fixed-Date Election Foibles in the Provinces
- What Is It About Dissolution That Everyone Finds So Confusing?