Newfoundland & Labrador Must By Law Hold An Early Election By 2021


Dwight Ball Announces His Intention to Resign as Premier

On 17 February 2020, Dwight Ball announced that he would step down as Premier of Newfoundland and Labrador as soon as the Liberal Party of the province chooses its new leader.  Around 1 minute 30 seconds into the recorded message, broadcast at 6:00 pm Newfoundland Time, Ball says:

“Now given the minority nature of our government and therefore the uncertainty of when the next [general election] campaign will come, now is the time for me to make way for new leadership. […] But before I do, I will continue to work everyday as your Premier until a new leader [of the Liberal Party] is chosen.”[1]

But this is not exactly true. Newfoundland and Labrador, unique amongst the nine provinces and two territories which have adopted fixed-date election laws, requires that new premier appointed to office before the close of the third year in the life of a House of Assembly advise the Lieutenant Governor to call an early general election within 12 months. So contrary to Ball’s statement, there is, in fact, an absolute certainty and statutory necessity that Newfoundlanders and Labradoreans will go to the polls again by 2021, after having last done so only on 17 May 2019.

This all derives from section 3.1 of the House of Assembly Act, part of the broader fixed-date election provisions which the Legislature of Newfoundland and Labrador adopted in 2004.

Election Upon Change of Premier

3.1 Where the leader of the political party that forms the government resigns his or her position as leader and as Premier of the province before the end of the third year following the most recent general election, the person who is elected by the party to replace him or her as the leader of the party and who is sworn in as the Premier of the province by the Lieutenant-Governor shall, not later than 12 months afterward, provide advice to the Lieutenant-Governor that the House of Assembly be dissolved and a general election be held.[2]

Incidentally, the Legislature last amended the main fixed-date election provision by adding in section 3(3) in 2015. This proviso specifically in order to exempt the previous Conservative Premier, Paul Davis, from complying with section 3.1!

Duration of House of Assembly

  1. (1) Notwithstanding another provision of this section, the Lieutenant-Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit.

(2) A polling day at a general election shall be held on the second Tuesday in October, 2007 and afterward on the second Tuesday in October in the fourth calendar year following the polling day at the most recently held general election.

(3) Notwithstanding subsection (2) and section 3.1, the polling day for a general election in 2015 shall be held on November 30, 2015.

(4) Notwithstanding subsection (2), if, on April 1 in the year that a general election is to be held under that subsection, the Premier is of the opinion that the day that would be an ordinary polling day under that subsection is not suitable for that purpose because it overlaps with a federal election, the Premier shall choose an alternative day in accordance with subsection (5) and shall provide advice to the Lieutenant-Governor that a general election be held on that alternative day.

(5) The last Monday in November in the fourth calendar year following the ordinary polling day for the most recently held general election is the alternative day referred to in subsection (4).

The Liberal Party of Newfoundland and Labrador will now have to decide how and when to elect its new leader, which will presumably happen by mid-2020. Based on the dynamics of this minority legislature, Lieutenant Governor Judy Foote would then commission the new leader of the Liberal Party as the Premier-designate and, subsequently, appoint him or her the next Premier of Newfoundland and Labrador. Finally, within one year, that new Liberal Premier, whoever he or she may be, would have to bring about an early general election by 2021.

At least holding another early general election in 2020 or 2021 would finally take Newfoundland and Labrador’s four-year electoral cycle out of sync with that of the Parliament of Canada (2015-2019, 2019-2023) and decrease the likelihood that scheduled federal and provincial general elections would overlap and occur almost simultaneously in October.

Section 3.1 Is Unconstitutional  

In principle, however, the requirement for an early election under section 3.1 is unconstitutional. The law could turn a political issue into a constitutional issue – and potentially even into a constitutional crisis. This law springs from the view that a Premier appointed mid-parliament should have to “seek his own mandate” from the electorate in an early general election because this is more “democratic.” Here we find what I’ve called in previous blog entries “The Mandate Problem” codified in statute.

In Canadian law, shall is imperative and therefore means must.[3] The law forces the Premier advise the Lieutenant Governor to offer constitutional advice and thus infringes upon the constitutional relationship between the two. A statute law can no more forbid the Premier from advising the Governor to dissolve the assembly than it can force the Premier to advise the Governor to dissolve the assembly.

Most interestingly of all, this section 3.1 is not subject to the non-derogation clause of section 3(1), which only applies to section 3(2). Under section 3(1), the Premier may advise an early dissolution, but under section 3.1, he or she must advise an early dissolution. Newfoundland and Labrador’s law therefore preserves the Premier’s discretion to advise an early dissolution, as do all the other fixed-date election laws, but it would prevent a Premier appointed mid-parliament from serving for the remainder of that parliament. Section 3.1 means that, as those New Democratic MLAs in British Columbia argued, a Premier appointed mid-parliament should advise an early dissolution in order seek his or her own “mandate” from the electorate. This troublesome provision also raises the spectre of judicial review or vice-regal activism: what would happen if the new Premier appointed mid-parliament refused to advise the Lieutenant Governor to dissolve the House of Assembly early? The law compels the Premier to offer the Lieutenant Governor certain advice but does not specify what would happen if he did not. The courts would perhaps have to order the Premier to advise an early dissolution because the provision does not otherwise provide for an automatic dissolution by efflux of time as section 50 of the Constitution Act, 1867 does. Alternatively, the Lieutenant Governor would have to dismiss this Premier and appoint another who would advise the early dissolution pursuant to the law.

The provision is not only unconstitutional but ambiguous as well. The statute does not make provision for a Premier and party leader ousted by cabinet or caucus, for a Premier who dies in office, for a Premier who is dismissed by the Lieutenant Governor, or for a Premier who becomes incapacitated. The law could have avoided this ambiguity and the problematic omission of dismissal and death in office by remaining silent on the outgoing Premier and the manner of his or her resignation or dismissal, and instead focus exclusively on the incoming Premier. For instance, the law could have specified that “upon a change in Premier,” the new Premier give certain advice, instead of opting for the ultra-specific clause, “where the leader of the political party that forms the government resigns his or her position as leader and as Premier […].” While this would still be unconstitutional, it would at least maintain the virtue of covering a greater array of possible situations. But the best solution would be to repeal to provision entirely.

And the next Premier of Newfoundland and Labrador should introduce legislation to repeal section 3.1 altogether.

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Notes

[1] Malone Mullin, “Dwight Ball Stepping Down as Newfoundland and Labrador Premier,” CBC News, 17 February 2020.

[2] Newfoundland and Labrador, House of Assembly, An Act to Amend the House of Assembly Act, Bill 13, 47th Legislature, 4th Session, Volume XLVII, No. 28, 2015.

[3] Interpretation Act, R.S.C. 1985, c. I-21; Ruth Sullivan, Statutory Interpretation (Toronto: Irwin Law, 2007), 73.

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively in my field. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Crown (Powers and Office), Dissolution, Formation of Governments. Bookmark the permalink.

1 Response to Newfoundland & Labrador Must By Law Hold An Early Election By 2021

  1. Mark Roth says:

    What would happen if a premier advised the Lieutenant Governor as ordered, and then advised that that advice be ignored or rejected?

    Like

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