The Timing of Scheduled Federal Elections


Introduction

Parliament first considered the fixed-date election provision in the Canada Elections Act in 2006 and enacted it in May 2007. Even today, the statute still refers to what should have become the first scheduled federal election in October 2009 as the baseline for all subsequent scheduled elections, even though no federal election ever took place in 2009. Prime Minister Harper infamously opted secure a dissolution of the 39th Parliament one year early in September 2008 for an election in October 2009 on the reasonable grounds that his government had already lost the confidence of the Commons in practical terms because it could no longer shepherd its legislation through apart from Liberal abstentions.[1] In addition, Harper had met with Jack Layton, Leader of the New Democratic Party, and Gilles Duceppe, leader of the Bloc quebecois, in the days before the early dissolution, and neither could pledge support; at the same time, Liberal leader Stephane Dion had stated openly and publicly that he would introduce a motion of non-confidence the week of 15 September 2008 when the Commons returned from its summer recess, in which case, there would have been an early election anyway.[2] Contrary to all evidence, this episode continues to stoke the ire of the liberal intelligentsia in some quarters over a decade later. And in March 2011, the House of Commons expressly withdrew its confidence from the Harper government, and an election occurred in May 2011. The first federal general election which took place as scheduled occurred on 19 October 2015. The election currently scheduled for 21 October 2019 would become only the second to occur on schedule, if everything holds.

In this election year, we should take stock in how Canada’s fixed-date elections legislation has evolved since 2007, how federal elections occur, and how they could be delayed under some circumstances.

Fixed-Date Provision         

Section 56.1 of the Canada Elections Act contains the provision for scheduling fixed-date elections:

Powers of Governor General preserved 

56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.

Marginal note: Election dates

(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.

57 (4) In the case of a general election that is not held on a day set in accordance with subsection 56.1(2) or section 56.2, if, in the week in which the election is to be held, the Monday is a holiday, polling day shall be held on the Tuesday of that week.

Under the non-derogation clause in section 56.1(1), this legislation does not set a minimum lifespan on a parliament because the Governor General can still dissolve a parliament on the Prime Minister’s advice at any time within its lifecycle. However, section 56.1(2) does set a maximum lifespan on a parliament at somewhere between four and five years, and a parliament would now dissolve by efflux of time (i.e., automatically pursuant to this section) 36 days before “the third Monday of October in the fourth calendar year following the polling day for the last general election” and no longer pursuant to section 50 of the Constitution Act, 1867 and the five-year limit.

In 2015, Prime Minister Harper in 2015 opted for a long campaign in order to make official part of the pre-writ electioneering that inevitably happens with scheduled polling days. The polling day happened on schedule on 19 October 2015, but Harper secured a dissolution of parliament and issuing of the writs of election on 8 August 2015, shortly after the long weekend for the Civic Holiday. The writ therefore lasted 78 days.[3] The fixed-date election law played a part in this long writ in the general election of 2015, the first to occur as scheduled under 56.1 of the Canada Elections Act. These laws across Canada have, in effect, made the preceding six months before the scheduled election a de facto pre-writ campaign period, so it was not unreasonable to make the de facto pre-writ a de jure writ through a longer formal election.

Minimum and Maximum Writs

As ParlInfo shows, the 42nd general election lasted the longest of all elections on which the writs for all ridings were made returnable on the same day; the only general election that went on longer occurred in 1872 (up to 89 days), when the Governor General’s proclamation specified that the return of writs for the remote northern ridings of Algoma and Saguenay would occur later than those in the rest of the country.[4]

The current 42nd Parliament (2015-2019) reacted against the extremely long writ and campaign of 2015. In 2016, New Democrat MP Alistair MacGregor introduced a private member’s bill that would have prescribed a maximum duration of the writ as 46 days. [5]  While this bill languished, the Trudeau government incorporated this idea into its Elections Modernization Bill, introduced in June 2018 and passed into law in December 2018. Section 57(1.2)(c) of the Canada Elections Act had already specified a minimum writ of 36 days but until recently specified no corresponding maximum duration of the writ; this section now stipulates that the writ – the election campaign – can last a maximum of 50 days.

Writs of Election

General election — proclamation

57(1)The Governor in Council shall issue a proclamation in order for a general election to be held.

By-election — order

(1.1) The Governor in Council shall make an order in order for a by-election to be held.

Contents

(1.2) The proclamation or order shall

(a) direct the Chief Electoral Officer to issue a writ to the returning officer for each electoral district to which the proclamation or order applies;

(b) fix the date of issue of the writ; and

(c) fix the date for voting at the election, which date must be at least 36 days after the issue of the writ.

The New Official Pre-Writ

The Elections Modernization Bill now also attempted to deal with the issue of pre-writ campaigning, which fixed-date elections had exacerbated and which Harper had attempted to co-op and make official in 2015 with an ultra-long formal writ. The Canada Elections Act now contains rules limiting spending and advertising during the “pre-election period” from 30 June in the years of scheduled general elections until the day before dissolution.[6] Section 2 of the Canada Elections Act now defines the “pre-election period” and “partisan advertising” as such:

pre-election period means the period beginning on the June 30 before the day set in accordance with subsection 56.1(2) for the holding of a general election and ending on the day before the earlier of

(a) the first day of an election period for a general election, and

(b) the 37th day before the Monday referred to in subsection 56.1(2) or, if the Governor in Council makes an order under subsection 56.2(3), the 37th day before the alternate day referred to in that order.[7]  

partisan advertising means the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes a registered party or eligible party or the election of a potential candidate, nomination contestant or leader of a registered party or eligible party, otherwise than by taking a position on an issue with which any such party or person is associated. For greater certainty, it does not include

(a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news;

(b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election;

(c) the transmission of a document by a Senator or a member the expense of which is paid by the Senate or House of Commons;

(d) the transmission of a document directly by a person or a group to their members, employees or shareholders, as the case may be;

(e) the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views; or

(f) the making of telephone calls to electors only to encourage them to vote. (publicité partisane)

The new “pre-election period” would, of course, only apply when the government and parliament adhere to the fixed-date elections scheduled under section 56.1 of the Canada Elections Act, because the pre-writ, by definition, can only become a well-defined and meaningful period when the approximate date of dissolution and the date of the general election are known well in advance. It would have applied in 2015, but it would not have applied in 2011 and 2008.

Both of these new initiatives (putting a maximum on the writ and defining a pre-writ period) seem like reasonable means of regulating the pre-writ in an era where fixed-date elections have given this period new relevance. However, the new limitations on pre-writ partisan advertising do not apply to announcements that the Government of Canada – and therefore by extension, the party in power – can make during the pre-election period. The Trudeau government has, for instance, made a flurry of spending announcements this July,[8] including $1.5 billions for ship-building contracts in three provinces.[9]

These new spending commitments made during the pre-writ should also dispel the false notion that the Caretaker Convention has now somehow evolved to apply during the several months before dissolution. It does not. The practice still demonstrates that the Caretaker Convention applies only during the writ and after the writ until a parliamentary majority is confirmed.[10]

Delaying the Schedule of the Election for Days of Cultural or Religious Significance

The Canada Elections Act’s fixed-date provisions also include the possibility of delaying the polling day by either one day or seven days if the third Monday in October “conflicts with a day of cultural or religious significance or a provincial or municipal election.” The Chief Electoral Officer would recommend that Cabinet present an Order-in-Council for the Governor General’s signature prior to 1 August in the year of an election that the polling day be delayed by either one day or seven days. This process thus creates two veto-points: whether the Chief Electoral Officer decides to recommend that Cabinet delay the polling day, and, if so, whether Cabinet agrees with that recommendation and decides to advise the Governor General to promulgate an Order-in-Council to that effect. The wording of section 56.2 also means that Cabinet could only delay the date of polling day if the Chief Electoral Officer first makes such a recommendation; in other words, Cabinet could not decide on its own to delay polling by one or seven days.  Logically, these provisions would also only apply if the fixed-date election occurs on schedule, so they could have applied to the federal election of 2015 but not to the elections in May 2011 and October 2008.

Alternate day

56.2 (1) If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day in accordance with subsection (4) and shall recommend to the Governor in Council that polling day be that other day.

Publication of recommendation

(2) If the Chief Electoral Officer recommends an alternate day for a general election in accordance with subsection (1), he or she shall without delay publish in the Canada Gazette notice of the day recommended.

Making and publication of order

(3) If the Governor in Council accepts the recommendation, the Governor in Council shall make an order to that effect. The order must be published without delay in the Canada Gazette.

Limitation

(4) The alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.

Timing of proclamation

(5) An order under subsection (3) shall not be made after August 1 in the year in which the general election is to be held.

This provisions in section 56.2 of the Canada Elections Act have made the news in 2019. The date scheduled for polling day, 21 October 2019, corresponds with a Jewish holiday called Shemini Atzeret, which, according to The Canadian Jewish News, prevents observant Jews from undertaking activities like voting and campaigning.[11] Michael Levitt, Liberal MP for York Centre, had raised this same concern with the Chief Electoral Officer, Stephane Perreault, in a letter from 16 April 2019; however, Perrault officially declined to recommend that Cabinet delay the scheduled election under section 56.2 of the Canada Elections Act.[12] The Conservative candidate for the nearby riding of Eglinton-Lawrence, Chani Aryeh-Bain, took the issue one step further by filing an application for judicial review of Perreault’s decision with the Federal Court of Canada, which held a hearing on the matter on 16 July.[13] Levitt and Aryeh-Bain have also pointed out that three of the four for advance polling allowed under 171(2) of the Canada Elections Act would fall on 11, 12, 13, and 14 October also fall on other Jewish holidays.[14] The Act would seem to preclude the possibility of offering additional advance polls: 

(2) An advance polling station shall be open from 9:00 a.m. to 9:00 p.m. on Friday, Saturday, Sunday and Monday, the 10th, 9th, 8th and 7th days, respectively, before polling day, and shall not be open at any other time.

It remains to be seen whether the courts will issue a mandamus that Perreault must recommend that Cabinet delay polling day under section 56.2(2); even if this occurred, the courts would presumably also have to mandate that Cabinet accept this recommendation under section 56.2(3) and cause the Order-in-Council delaying the polling day to 28 October to be issued. Ontario’s fixed-date election law contains a similar series of provisions for delaying polling day in order to accommodate days of cultural or religious significance, and the province did delay its election in 2007 from 4 to 10 October so that the polling day would not overlap with a Jewish holiday and prevent observant Jews from voting.[15] However, delaying the federal election from 21 to 28 October would then cause the federal polling day to overlap with Municipal Council Elections in Nunavut. [16] Section 56.2(1) of the Canada Elections Act indicates that federal elections could be delayed in order to avoid overlap with “a provincial or municipal election,” which presumably means that they should not be delayed in such a way that would cause an overlap where none would have existed on the regularly scheduled polling day.

The Federal Court of Canada issued a ruling on this matter on 23 July 2019. The court concerned itself with only “whether the CEO properly balanced the statutory objectives with Charter rights and values.”[17] The court found that Chief Electoral Officer’s communications with the applicants and others focussed on logistical concerns like costs as well as the municipal elections in Nunavut scheduled for 28 October, but that Perreault seems not to have “ ‘balanced’ these considerations against the Charter values of Orthodox Jewish voters and candidates to ensure their rights to ‘meaningful participation’ are respected.”[18] The court further found that Perreault “focused on advanced polling and special ballot options” but that “No consideration appears to have been given to recommending a date change.”[19] But in the absence of any formal records and documentation on how the Chief Electoral Officer arrived at his decision not to recommend that the Governor-in-Council postpone polling day by one week, the court could not determine whether the Chief Electoral Officer had properly weighed all the appropriate considerations. Ultimately, the Federal Court declined to issue “a mandamus that this Court direct that the CEO [Chief Electoral Officer] recommend to the GIC [Governor-in-Council] that the polling date for the federal general election be changed to Monday, October 28, 2019,”[20] but it did nevertheless order the Chief Electoral Officer to undertake a “redetermination that reflects a proportionate balancing of the Charter rights with the statutory mandate” and that “the CEO [Chief Electoral Officer] shall make his redetermination by August 1, 2019.”[21] Chief Electoral Officer Stephane Perreault then issued the following statement:

On July 23, 2019, the Federal Court of Canada ruled on the matter of Chani Aryeh-Bain et al. vs. The Chief Electoral Officer of Canada. This ruling directs the CEO to reconsider his decision not to recommend moving the election date.

“Elections Canada will act in a timely manner in accordance with the directions provided by the Court. I will make public my final decision as soon as possible.

Elections Canada remains committed to fostering meaningful opportunities for all Canadians to participate in the federal election.”

Stéphane Perrault, Chief Electoral Officer of Canada.[22]

At this stage, I imagine that the Chief Electoral Officer will, in line with the Federal Court’s ruling, issue a formal statement clarifying his original decision not to recommend that polling day be postponed. But we shall find out soon enough.

The Process of Calling An Election 

Dissolving parliament, issuing the writs of election, and summoning the next parliament are promulgated through three separate proclamations.[23] First, the Governor General dissolves the legislature on and, apart from exceptional circumstances, in accordance with, the advice of the Prime Minister. Second, the Governor General issues the writs of election on the advice of Cabinet and in accordance with section 57(1) of the Canada Elections Act. Third, the Governor General summons the first session of the next parliament pro forma on the advice of the Prime Minister. The documents in the Canada Gazette show that the Government of Canada still follows essentially the same procedure that the Manual of Official Procedure of the Government of Canada described in 1968 by issuing three separate proclamations:

  1. the dissolution of the old parliament,
  2. the issuing of writs of election,
  3. and thepro forma summoning of a new parliament.[24]

For example, in 2011, the Governor General issued the Proclamation Dissolving Parliament “by and with the advice of Our Prime Minister of Canada”, based on the Prime Minister’s Instrument of Advice, an executive instrument which he provides the Governor General individually without reference to Cabinet.[25] The Governor-in-Council then issued the Proclamation Issuing Writs of Election “by and with the advice of Our Privy Council for Canada,” which means that Cabinet (with a minimum quorum of four) advised the Governor General through an Order-in-Council.[26]  Finally, the Governor General issued the Proclamation Summoning Parliament to Meet on 30 May 2011 “by and with the advice of Our Prime Minister of Canada”, again through a unilateral Prime Ministerial Instrument of Advice.[27] While the provinces might not use the same set of three separate executive instruments, they still take the same three steps. For instance, in most provinces, the Premier still advises the Lieutenant Governor to dissolve the legislature through an Order-in-Council, which means that he must still involve Cabinet in the decision, because the quorum for Cabinet as a committee of the Executive Council is four. Delaying an election in light of a day of cultural or religious significance would involve the same procedure as step 2 of this process, with the involvement of Cabinet and not the Prime Minister alone.

Conclusion: When the Federal Election Will Start

Under the Canada Elections Act, the polling day is scheduled for 21 October 2019. Since the writ must last a minimum of 36 days and now a maximum of 50 days, the 42nd Parliament will be dissolved between 1 and 15 September 2019. If, however, the date of the federal election does end up be delayed by seven days to 28 October, then the 42nd Parliament would be dissolved between 8 and 22 September.

Similar Posts:

[1] Chantal Hebert, “PM Will Get His Wish,” Telegraph-Journal, 28 August 2008, A7.

[2] Les Whittington, “Bring On Fall Elections, Liberals Say; Party Increasingly Confident It’s in Good Position As Tories Deal With Scandals, Stagnant Popularity,” The Toronto Star, 2 August 2008, A17; Juliet O’Neill, “Harper, Dion Skirmish over Fall Election; PM Plans to Meet With All Three Opposition Party Leaders to Find Out Whether a ‘Productive’ Session Is Possible,” The Vancouver Sun, 20 August 2008, A4; Allan Woods, “PM to Meet with Duceppe, Layton As Vote Call Looms; Launch of Election Campaign Expected As Early As Next Week, Pre-empting Three By-Elections,” The Toronto Star, 29 August 2008, A19.

[3] Parliament of Canada, ParlInfo, “Length of Federal Election Campaigns,” 26 August 2016.

[4] Parliament of Canada, ParlInfo, “Length of Federal Election Campaigns,” 26 August 2016.

[5] Alaister MacGregor, [“Bill C-279, An Act to Amend the Canada Elections Act (length of election period)”], Canada, Parliament of Canada, 42nd Parliament, 1st Session, 31 May 2016.

[6] Canada, House of Commons. Bill C-76, An Act to Amend the Canada Elections Act and Other Acts and to Make Certain Consequential Amendments, 42nd Parliament, 1st Session, 64-65-66-67 Elizabeth II, 2015-2016-2017-2018, 30 April 2018, page 26.

[7] Canada, House of Commons. Bill C-76, An Act to Amend the Canada Elections Act and Other Acts and to Make Certain Consequential Amendments, 42nd Parliament, 1st Session, 64-65-66-67 Elizabeth II, 2015-2016-2017-2018, 30 April 2018, page 5.

[8] David Akin, “ANALYSIS: In this pre-writ period, Liberal ministers find a fondness for visits to battleground ridings,” Global News, 9 July 2019.

[9] CBC News, “$1.5B in frigate repair contracts split among yards in three provinces,” 16 July 2019.

[10] Canada. Privy Council Office, Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During An Election. (Ottawa: Her Majesty the Queen in Right of Canada, 2008): 1; Canada. Privy Council Office, Guidelines on the Conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants During An Election (Ottawa: Her Majesty the Queen in Right of Canada, 2015): no page number online.

[11] Ron Csillag, “Federal Court Hears Challenge to Federal Election Date,” The Canadian Jewish News, 17 July 2019.

[12] Ron Csillag, “MP Finds Advance Polling Opinion Wanting for October Vote,” The Canadian Jewish News, 1 May 2019.

[13] Ron Csillag, “Federal Court Hears Challenge to Federal Election Date,” The Canadian Jewish News, 17 July 2019.

[14] Ron Csillag, “Federal Court Hears Challenge to Federal Election Date,” The Canadian Jewish News, 17 July 2019.

[15] Karen Howlett, “Ontario Government Changes Election Date,Globe and Mail, 7 February 2007.

[16] Nunavut, Elections Nunavut, “About Municipal Council Elections,” accessed 21 July 2019.

[17] Chani Aryeh-Bain et al. vs the Chief Electoral Officer of Canada 2019 FC 964, at para. 64.

[18] Chani Aryeh-Bain et al. vs the Chief Electoral Officer of Canada 2019 FC 964, at para. 55-56.

[19] Chani Aryeh-Bain et al. vs the Chief Electoral Officer of Canada 2019 FC 964, at para. 57.

[20] Chani Aryeh-Bain et al. vs the Chief Electoral Officer of Canada 2019 FC 964, at para. 66.

[21] Chani Aryeh-Bain et al. vs the Chief Electoral Officer of Canada 2019 FC 964, at page 24.

[22] Elections Canada, Chief Electoral Officer, Statements and Speeches, “Statement: Federal Court decision, Chani Aryeh-Bain et al. vs the Chief Electoral Officer of Canada,” 23 July 2019.

[23] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar. (Ottawa: Government of Canada, 1968): 407.

[24] Canada Gazette, “Proclamation Dissolving Parliament,” 28 March 2011; Canada Gazette, Proclamation Issuing Writs of Election,” 28 March 2011; Canada Gazette, Proclamation Summoning Parliament to Meet on 31 May 2011,” 28 March 2011.

[25] Canada Gazette, “Proclamation Dissolving Parliament,” 28 March 2011.

[26] Canada Gazette, Proclamation Issuing Writs of Election,” 28 March 2011.

[27] Canada Gazette, Proclamation Summoning Parliament to Meet on 31 May 2011,” 28 March 2011.

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This entry was posted in Caretaker Convention, Crown (Powers and Office), Dissolution, Fixed-Date Elections. Bookmark the permalink.

1 Response to The Timing of Scheduled Federal Elections

  1. Rand says:

    Good ole James clarifies things for us again!!!

    Like

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