The Fixed-Date Election Law Forced Saskatchewan’s Upcoming Pandemic Election


Introduction

Brian Pallister’s unnecessary early election last year – done ostensibly to prevent an election from occurring during the celebrations of Manitoba’s sesquicentennial in 2020 and to avoid accusations that his government would short-circuit rules against advertising to benefit the Progressive Conservative Party during the pre-writ and writ – now looks remarkably but unintentionally prescient. Even though Manitoba might have to cancel some of these celebrations this summer, Pallister’s decision has at least spared Manitobans the prospect of a mandatory dissolution or a dissolution by efflux of time (i.e., a dissolution which occurs automatically pursuant to statute or the constitution instead of by a premier’s advice to the governor) during a pandemic and the resulting Pandemic Election in the fall of 2020. But neighbouring Saskatchewan remained on course to suffer this fate. As of 13 May 2020, Scott Moe, Premier of Saskatchewan and Leader of the Saskatchewan Party, has confirmed that the province will go through with its general election scheduled for October 2020. And the fixed-date election law is to blame.

Saskatchewan’s Fixed-Date Election Law, 2008 to 2019

To understand how Saskatchewan must now hold a provincial general election in November 2020, unless in the unlikely event that the legislature amends the fixed-date election law contained within the Legislative Assembly Act beforehand, we must track the history of these  statutory provisions from their inception. Section 8.1 of the Legislative Assembly Act of Saskatchewan contains the province’s fixed-date election law, first enacted in 2008. It said at the time:

8.1(1) Unless a general election has been held earlier because of the dissolution of the Legislative Assembly, the first general election after the coming into force of this section must be held on Monday, November 7, 2011.

(2) Following the first general election held after the coming into force of this section, a general election must be held on the first Monday of November in the fourth calendar year after the last general election.  

Saskatchewan held its first election under the law as prescribed in November 2011. This seemed simple enough. But overlapping federal and provincial electoral schedules would present complications.

After the early federal election of May 2011 (it had originally been scheduled for October 2012), the Wall government introduced an equivalent measure to what Manitoba had pioneered: if Saskatchewan’s provincial general election would overlap with the federal election, then “the general election must be held on the first Monday of April in the calendar year following the calendar year mentioned in subsection (2).”[1] At the time, Attorney General Morgan argued that the legislative assembly should pass the law because overlapping federal and provincial elections would “create unacceptable confusion” and would even “undermine the democratic process for each of the federal and provincial campaigns.”[2] In 2012, the legislature added these new provisos.

When general elections must be held

8.1(1) Unless a general election has been held earlier because of the dissolution of the Legislative Assembly, the first general election after the coming into force of this section must be held on Monday, November 7, 2011.

(2) Subject to subsection (3), general elections following the general election held in accordance with subsection (1) must be held on the first Monday of November in the fourth calendar year after the last general election.

(3) If the writ period for a general election to be held in accordance with subsection (2) overlaps with the writ period for a general election to be held pursuant to subsection 56.1(2) or section 56.2 of the Canada Elections Act, the general election must be held on the first Monday of April in the calendar year following the calendar year mentioned in subsection (2).

(4) In this section, “writ period” means the period commencing on the day that a writ is issued for an election and ending on polling day for that election.[3]

Furthermore, Saskatchewan’s Election Act specifies that the writ must last for a minimum of 27 days.

31(1) The Lieutenant Governor in Council may commence an election by passing an order that directs the Chief Electoral Officer to issue a writ of election in the prescribed form addressed to the returning officer for the constituency in which the election is to take place.

(2) In the order mentioned in subsection (1), the minimum period that may be fixed between the issue of the writ and polling day is 27 days, and, for the purpose of calculating that minimum period, the date fixed for issuing the writ is to be excluded and the date fixed for polling day is to be included.[4]

In accordance with section 8.1(3) of the Legislative Assembly Act and section 31(1) of the Election Act, the 27th Legislature was dissolved on 6 March 2016 and a general election held on 4 April 2016 instead of on 2 November 2015, because the federal general election took place as scheduled in October 2015. Through this amendment to the fixed-date elections law, the 27th Legislature therefore succeeded in prolonging its own life from four years to four and a half years, from October 2011 to April 2016. The 28th Legislature elected in April 2016 would also last four and a half years instead of four years under the fixed-date election law at the time. Originally in 2016, the fixed-date election law had scheduled Saskatchewan’s next general election for Monday, 2 November 2020. With the minimum writ period of 27 days, this means that the 28th Legislature would have been dissolved and the 29th general election would have begun on no later than 6 October 2020. However, even before the pandemic, this presented additional complications – this time with respect to scheduled municipal elections – and necessitated a second ­ad hoc but time-consuming amendment to the fixed-date election law.

If the Chief Electoral Officer of Saskatchewan, Michael Boda, has gotten his way, this 28th Legislature could also have lived for is absolute maximum of the full five years. As it turns out, Boda was right back in 2017, though no one could have known then that we would find ourselves in a lockdown to prevent the spread of a novel respiratory virus. Boda issued a report in April 2017 recommending that the province delay its scheduled provincial election from November 2020 to April 2021 so that it does not overlap with municipal elections also scheduled for the fall of 2020. In 2017, he argued, “Quite simply – it is not administratively tenable that the election periods for any of the three jurisdictional levels overlap.”[5] However, since the wording of section 8.1(3) of the Legislative Assembly Act only allows that the provincial election be postponed if it would otherwise overlap with a federal general election, the legislature would need to further amend the act in order to delay the provincial election currently scheduled for November 2020 to April 2021. The Chief Electoral Officer acknowledges this fact in his report and states unequivocally:

It is clear, therefore, that the legally set schedule for either the provincial election or municipal election must change — it is administratively untenable for Saskatchewan’s 2020 municipal and provincial election periods to be held concurrently.[6]

He recommended that the legislature alter the schedule for the provincial general election because municipalities have no discretion to alter their elections.[7]

The Moe government did not follow Boda’s recommendation precisely, but it did end up proposing and securing some amendments to section 8 of the Legislative Assembly Act. On 31 October 2018 – a scary surprise? – the Moe government announced that it would table legislation to adjust the schedule to the provincial general election on the one hand and that of the municipal and schoolboard elections on the other. Provincial general elections would now be held on the fourth Monday of October, starting on 26 October 2020, “with municipal and school board elections held two weeks later on November 9, 2020.” The announcement adds:

The updates to the legislation will outline that following 2020 on a four-year schedule, future provincial elections will be held on the last Monday in October and future municipal elections will occur on the second Wednesday in November, unless it falls on Remembrance Day.[8]

The Legislative Assembly debated Bill 133 from 31 October 2018 to 2 May 2019. The bill to make Saskatchewan’s second ad hoc amendment to its fixed-date elections law entered into force upon Royal Assent on 15 May 2019. The Legislative Assembly Act has re-set the entire fixed-date elections calendar, deleting the original reference to November 2011. But it retains the first ad-hoc amendment from 2012 on delaying the provincial general election to the following April if the provincial writ would otherwise overlap with the writs for a federal general election.

8.1(1) Unless a general election has been held earlier because of the dissolution of the Legislative Assembly, the first general election after the coming into force of this subsection must be held on Monday, October 26, 2020.

(2) Subject to subsection (3), general elections following the general election held in accordance with subsection (1) must be held on the last Monday of October in the fourth calendar year after the last general election.

(3) If the write period for a general election to be held in accordance with subsection (2) overlaps with the writ period for a general election to be held pursuant to subsection 56.1(2) or section 56.2 of the Canada Elections Act, the general election must be held on the first Monday of April in the calendar year following the calendar year mentioned in subsection (2).

(4) In this section, “writ period” means the period commencing on the day that a writ is issued for an election and ending on polling day for that election.[9]   

However, the Chief Electoral Officer’s rationale could have just as credibly lent itself to an argument why the Premier of Saskatchewan should simply have advised the Lieutenant Governor to dissolve the 28th Legislature early and hold the provincial earlier than the scheduled date, originally 2 November 2020 and now set for 26 October 2020. But Scott Moe, who succeeded Brad Wall as Leader of the Saskatchewan Party on 27 January 2018 and as Premier on 2 February 2018,[10] initially ruled out that possibility. He would have needed to go to an early dissolution and election in the summer or fall or 2018 or the spring of 2019 in order to avoid the federal election in October 2019 and in order to avoid creating another series of overlapping provincial and municipal elections in 2024. But those deadlines came and went. Moe’s mid-parliamentary appointment as Premier in February 2018 also raised the ire of Ryan Meili, the Leader of the New Democratic Party and Her Majesty’s Loyal Opposition in the province, who believed that Moe lacked “a mandate” as well as “the trust of the people” of Saskatchewan and should therefore have gone for an early dissolution very soon after his appointment.[11] Back in 2018, Moe rejected the New Democratic Party’s clamour for an early election, stating that it would waste $20 millions of dollars and arguing that the government should adhere to the scheduled fixed-date election. But Moe would later deviate from that view!

In my thesis from September 2018, I raised the possibility that Premier Moe would go for an early election in April 2020 instead of, at the time, the scheduled election for November 2020. My prediction turned out correct, at least in principle, because before the Great Pandemic reached our shores and prompted our lockdowns and self-isolation and quarantines, Moe openly mused in February 2020 about holding an election for April 2020, with a dissolution in March 2020. If the Pandemic had not happened, then Moe almost certainly would have opted to short-circuit the statute law on which his government had devoted more than six months to passing and gone for an election in April. If nothing else, this shows why fixed-date election laws should be repealed altogether and why parliament and the legislatures should simply rely on section 4(1) of the Constitution Act, 1982. On 26 February, the Saskatoon Star-Phoenix reported that “Moe refuses to rule out an early provincial election.”[12] Moe said to reporters that day: “Our election is October 26th. That is the election date we have set. That is the election date that we continue to plan for. In saying that, the premier of the province has the prerogative to call an election at any point in time prior to that.” On 4 March, Moe even made the bizarre claim that the Coronavirus would have no effect whatever on his decision on the timing of the election. He also reiterated that since the previous election had occurred four years before, in March and April 2016, he considered April 2020 a reasonable point at which to hold the next election:

I don’t think it [the Coronavirus] really impacts the (election) decision to any degree. And I mentioned it in error because it is so top of mind for so many now. Some of those impact whether we might consider an election at the four-year point. And this is the four-year point. That is a factor. We continue to plan for October 26. But in saying that, we could call it early.[13]

Moe could teach one of those Masterclasses that we’ve seen advertised at a heavy discount on Facebook during this pandemic on “How Not to Answer Questions from the Press.” He reminds me of Ben Swain’s performance on Newsnight from The Thick of It.

Moe’s string of suggestions that he might decide to hold an election in the spring of 2020 prompted the Chief Electoral Officer to issue a subtly critical and passive-aggressive press release on 4 March. Boda affirmed in direct quotes, “While we have been preparing for October 2020, the Premier has the authority to call an early election,” but also added: “I have concluded that we cannot be prepared to run an election earlier than October 26, 2020 and move forward with modernization. I have decided instead to suspend our modernization efforts for this election cycle and focus on implementing a traditional election in order to ensure the integrity of our process.”[14] Boda also issued this statement under the coy title, “Elections Saskatchewan Preparing to Administer a General Election When Instructed” – as if anyone thought that Elections Saskatchewan would administer an election which had not been called.

Even as late as 11 March, Moe hinted that he would like to go to the polls in April: “The fact of the matter is our four years is up now. I would like a mandate from the people of the province. I would like that mandate sooner rather than later.”[15] Moe finally relented the next day. On 12 March, he issued a statement on social media, saying: “We will remain focused on providing a strong, stable government and addressing the health and economic challenges caused by the COVID-19 pandemic. I will not be calling a provincial election this spring.”[16]

On 13 May 2020, Moe affirmed that the provincial election would take place on 26 October and that the Lieutenant Governor-in-Council would issue new regulations under the Elections Act to give the Chief Electoral Officer broader authority to take measures to protect voters and election workers in light of the pandemic. The Government of Saskatchewan has done so by “clearly defin[ing] a public health emergency as an emergency under The Elections Act and giv[ing] the Chief Electoral Officer the power to adapt any provision of the Act as necessary to reduce a health risk to the public.”[17] Boda ruled out the possibility of using mail-in ballots as the default, telling CBC News that Elections Saskatchewan would need at least one year to plan such a drastic change.[18] Boda has yet to clarify whether he has reversed his petulant decision from March to cancel the “modernisation efforts for this election cycle” now that the election will take place as scheduled in October.

How Elections Happen in Saskatchewan 

At the federal level, a trio of proclamations issued on the same day dissolves one parliament, issues writs of general, and summons the first session of the new parliament pro forma. The Governor General issues the first and third of these proclamations on the Prime Minister’s advice alone but issues the second on the advice of cabinet. For example, in the most recent federal general election last year, these three proclamations dissolved the 42nd Parliament and issued writs of election on 11 September 2019, named 21 October as polling day, made the writs returnable for 11 November 2019, and scheduled the pro forma despatch of business for the 1st session of the 43rd Parliament for 18 November.[19]

The Province of Saskatchewan also distinguishes between these three executive instruments and steps in the process but follows a slightly different procedure. Saskatchewan’s Orders-in-Council database records each of these three steps in three separate Orders-in-Councils, but the Saskatchewan Gazette only records two proclamations, one for the dissolution of one legislature and another for the summoning of the next legislature. For example, for its most recent provincial general election in 2016, the Lieutenant Governor first promulgated an Order-in-Council, primarily on the advice of the Premier, to dissolve the 27th Legislature on 8 March 2016 pursuant to royal prerogative and section 6 of the Legislative Assembly and Executive Council Act.[20] The Saskatchewan Gazette then records the operative proclamation of dissolution on 11 March 2016.[21] Curiously, both the Order-in-Council and the proclamation cite section 6 of the Legislative Assembly Act, which re-states and re-affirms section 4(1) of the Constitution Act, 1982 that “No Legislative Assembly is to continue for longer than five years from the date fixed for the return of the writs at a general election of members.” Neither instrument cites section 8.1(3) of the Legislative Assembly Act, which delays a provincial general election from October to the following April if it would have otherwise overlapped with a federal general election. And after the legislature went through all that trouble to amend the fixed-date election law twice! A second Order-in-Council issued on the same day then instructs the Chief Electoral Officer to issue writs of election in all ridings, but The Saskatchewan Gazette contains no corresponding proclamation.[22] Third and finally, the Lieutenant Governor promulgated on the Premier’s advice one last Order-in-Council one month after the general election to summon the first session of the 28th Legislature on 17 May 2016.[23] The Saskatchewan Gazette records a corresponding proclamation on 6 May 2016,[24]  and the first session did indeed open on 17 May 2020.[25] Saskatchewan’s method of holding off on issuing the third proclamation until after the general election therefore obviates the need to issue a pro forma proclamation and subsequent proclamations delaying the summoning of the first session of the new parliament. This seems more efficient than what Ottawa does.

Conclusion: The Nature of Fixed-Date Election Laws and Dissolution by Efflux of Time

Fixed-date election laws in Canada failed to guarantee a minimum lifespan of parliaments and legislatures in Canada because they all deliberately preserved the authority of the Governor General and Lieutenant Governors to dissolve them through non-derogation clauses. And under Responsible Government, where Governors act on and in accordance with the constitutional advice of Ministers of the Crown, these non-derogation clauses therefore also necessarily preserve the fact that governors dissolve legislatures on and in accordance with the advice of first ministers, not independently without ministerial advice and not contrary to ministerial advice. The proponents of fixed-date election laws in the late 1990s and 2000s often claimed that they would somehow prevent early dissolution. Then they had to acknowledge that they would impose a minimum lifespan on a parliament and prevent an early dissolution unless the elected assembly first withdrew its confidence form the government, which would essentially leave the decision on an early election to the Leader of the Opposition instead of the Prime Minister or Premier.

Under the heading “prerogative of the crown not affected,” the non-derogation clause of Saskatchewan’s fixed-date election law says:

Nothing in section 8 or 8.1 alters or abridges the power of the Crown to prorogue or dissolve the Legislative Assembly.[26]

In addition, the main clause in section 8.1(1) – in all three of its iterations – starts off with the subordinate clause and proviso “Unless a general election has been held earlier because of the dissolution of the Legislative Assembly,” which acknowledges that early dissolutions can happen. And they only occur when the Lieutenant-Governor issues an Order-in-Council on ministerial advice. The Intergovernmental Affairs and Justice Committee examined the original bill back in 2008 and invited Don Morgan, Attorney General, and Darcy McGovern, Director of Legislative Services in the Ministry of Justice, to appear. McGovern confirmed that Saskatchewan’s fixed-date elections law preserves the Crown’s authority over dissolution because only a constitutional amendment could eliminate it. McGovern concluded: “it remains the ability of the Crown to dissolve the House at the direction of the Premier.”[27]

The Attorney General then acknowledged that the Premier could advise an early dissolution, but that he would probably “pay a horrific price and would have no real reason to go back to the voters” and that an early dissolution would be “problematic from a political perspective.”[28] Nevertheless, it would still be legal and constitutional. It is also curious that public officials and scholars in the 2000s over-estimated the political consequences of early dissolution and presume that it is never in the public interest. In reality, the record is mixed, with some early dissolutions benefitting and other resulting in the obliteration of the incumbent government.

The same year, in 2008, Prime Minister Harper first put that theory to the test and exposed the futility and illogic of the law which he himself had advocated and advised an early dissolution after the leaders of the other parties had already threatened publicly to bring down the government in the fall sitting. Other premiers later followed suit: Pauline Marois of Quebec in 2013, Kathleen Wynne of Ontario in 2014, Jim Prentice of Alberta in 2015, Wade MacLaughlin of Prince Edward in 2015 and again in 2019 (he lost the latter election and showed that you only “break” a fixed-date election law twice), Dwight Ball of Newfoundland and Labrador in 2019, and Brian Pallister of Manitoba in 2019. Eight precedents now support the claim that I first advanced here on Parliamentum in August 2011 in “Fixed Elections in the Provinces, Parts I, II, and III (in between the first and second precedents), and upon which I expounded in The Journal of Parliamentary and Political Law in “When the Bell Tolls for Parliament: Dissolution by Efflux of Time” and in even greater detail in my thesis  Reining in the Crown’s Authority over Dissolution: The Fixed-Term Parliaments Act of the United Kingdom versus Fixed-Date Election Laws in Canada. My argument in 2011 initially met with scorn in some quarters, but by around 2015, it had become universally accepted by journalists who cover politics, and even by the political scientists who initially presented Canadian-style fixed-date election laws as a real constraint on executive authority. The same thing has happened to the argument that Nick MacDonald and I put forward in 2011 on prorogation: an initial scornful derision evolves into a quiet acceptance.

In reality, fixed-date election laws could only claim to impose a minimum lifespan on parliaments by constraining the royal authority of dissolution under sections 9 and 50 of the Constitution Act, 1867– and that, in turn, would require a constitutional amendment under section 41(a) of the Constitution Act, 1982. As such, fixed-dated election laws in Canada have succeeded in only one thing: reducing the maximum life of parliaments and legislatures from five years to somewhere between four and five years. Section 4(1) of the Constitution Act, 1982 sets the absolute maximum life of federal parliaments and provincial legislatures at five years, and precedent makes clear the day of the return of writs set out in a proclamation starts the clock on the five-year countdown. (But, in practice, even if a parliament could last for five years under the definitions in Section 4(1) of the Constitution Act, 1982 and section 50 of the Constitution Act, 1867, its operative life from the moment when it is first summoned it to when it must be dissolved to take into account the fact that the Canada Elections Act requires that the writ last at least 36 days and up to 50 days, the functional life of the parliament already decreases to something like 4 years and 9 months). Only a constitutional amendment to section 4(1) of the CA, 1982 under the General Amending Formula could increase the maximum life of a parliament or legislature beyond five years. But nothing prevents the Parliament of Canada or the provincial legislatures from passing regular statute laws that lower their maximum lifespans because such statutes do not contradict section 4(2) of the CA, 1982. In this manner, a statute law can therefore supersede the Constitution Act as the standard of comparison for determining the maximum lifespan of a legislature.

Thankfully, no other province or territory has to hold an election in 2020. Yukon wisely never adopted a pointless fixed-date election law, so its next territorial general election can be put off until November 2021. But what if a provincial legislature – say, Nova Scotia’s, since that province never created a fixed-date elections law – had met its absolute five-year maximum in March or April 2020? It would have had no choice but to undertake the provincial election anyway. Section 4(2) of the Constitution Act, 1982 only allows an existing parliament or legislature to extend its life beyond five years under one specific set of circumstances:

In time or real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

That provision cannot be reasonably construed to include a pandemic, even if perhaps it should. A provincial legislature would dissolve automatically, by efflux of time, in accordance with section 4(1) of the CA, 1982, even over the protests of the legislative assembly and/or cabinet. In my piece on Dissolution by Efflux of Time from 2017, I pointed out that this provision, when applicable, requires an act of parliament – not merely a motion of the House of Commons, or a joint resolution between the House of Commons and Senate, or a motion of a Legislative Assembly,  – supported by at least two-thirds of elected members instead of the normal simple majority so that “a House of Commons may be continued by Parliament” or so that “a legislative assembly can be continued by the legislature.” This is because a “Parliament” by the definition under section 17 of the Constitution Act, 1867 means the Crown-in-Parliament of the Queen, Senate, and House of Commons, and because a “legislature” under the Constitution of Canada for all provinces means the Lieutenant Governor and the Legislative Assembly. (The Senate would only have to support such a bill at the federal level to extend the life of a parliament beyond five years with a simple majority). No legislature or parliament has ever had the chance to invoke this provision.

While Moe could have called an election earlier, he cannot opt to delay the election until later, say April 2021 when the 28th Legislature reaches its absolute maximum lifespan under section 4(1) of the Constitution Act, 1982. This is because section 8.1 of the Legislative Assembly Act currently sets the threshold for the maximum life of this legislature lower, at around four and a half years, and the election could only be delayed until April 2021 if the legislature amended the fixed-date election provision for a third time. And the Premier would have to first recall the legislature. Under the current law, the general election must and will happen this fall. The 28th Legislature must be dissolved no later than Tuesday, 29 September 2020 for an election on 26 October 2020. I hope that Saskatchewanians can conduct their election safely during these trying times, without precedent for a century.

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Notes

[1] Saskatchewan, Legislative Assembly. An Act to Amend the Legislative Assembly and Executive Council Act, 2007. Bill 35, 27th Legislature, 1st Session, 2012.

[2] Don Morgan, [“Bill No. 35 – An Act to Amend the Legislative Assembly and Executive Council Act, 2007”] In Saskatchewan, Legislative Assembly. Hansard Verbatim Report, Standing Committee on Intergovernmental Affairs and Justice, 27th Legislature, 1st Session, No. 10, 8 May 2012 (Regina: Legislative Assembly of Saskatchewan, 2008), 208.

[3] Saskatchewan, The Legislative Assembly Act, 2007, Chapter L-11.3 (Regina: The Queen’s Printer, 2017), 7-8.

<http://www.publications.gov.sk.ca/freelaw/documents/English/Statutes/Statutes/L11-3.pdf&gt;

[4] Saskatchewan, The Election Act, 1996, Chapter E-6.01 (Regina: Queen’s Printer, 1996 ), 39.

[5] Michael Boda, Chief Electoral Officer’s Discussion Paper: Resolving the Municipal-Provincial Election Timing Problem in Saskatchewan (Regina: Elections Saskatchewan, April 2017), 1.

[6] Ibid., 4.

[7] Ibid., 6.

[8] Government of Saskatchewan, “Provincial and Municipal Dates To Be Adjusted,” 31 October 2018.

[9] Saskatchewan, The Legislative Assembly Act, 2007, Chapter L-11.3 (Regina: The Queen’s Printer, 2019), 7-8.

[10] CBC News, “‘A Very Difficult Decision’: Premier Scott Moe Unveils New Cabinet,” 2 February 2018 [accessed 24 May 2018]. <http://www.cbc.ca/news/canada/saskatoon/premier-scott-moe-sworn-in-sask-1.4516424&gt;

[11] CBC News, “Premier Shouldn’t Wait Until 2020 to Call Election: Saskatchewan NDP Leader,” 9 March 2018 [accessed 24 May 2018]. <http://www.cbc.ca/news/canada/saskatchewan/saskatchewan-general-election-ryan-meili-scott-moe-1.4570783&gt;

[12] Phil Tank, “Moe Refuses to Rule Out Early Provincial Election in Saskatchewan,” Saskatoon Star-Phoenix, 26 February 2020.

[13] The Canadian Press, “Saskatchewan Premier Says Coronavirus Not a Factor in Election Call,” CTV News, 4 March 2020.

[14] Elections Saskatchewan, “Elections Saskatchewan Preparing to Administer a General Election When Instructed,” 4 March 2020.

[15] Stephanie Taylor, “Saskatchewan Premier Scott Moe Not Ruling Out Early Election Despite COVID-19 Pandemic,” The Globe and Mail, 11 March 2020.

[16] Katherine Hill, “No Spring Election Amid COVID-19 Concerns,” CTV News Regina, 12 March 2020.

[17] Saskatchewan, “Government Gives Chief Electoral Officer Clear Authority to Ensure a Safe Election,” 13 May 2020.

[18] Adam Hunter, “Saskatchewan Government Gives Top Electoral Official Emergency Power for Fall Election,” CBC News, 13 May 2020.

[19] Canada Gazette, Part II, Extra, Vol 153, No. 1 (Ottawa: Her Majesty the Queen in Right of Canada, 12 September 2019), 1-6.

[20] Saskatchewan, Order-in-Council 148/2016, “Dissolve the Twenty-Seventh Legislative Assembly of Saskatchewan – Tuesday, 8 March 2016 (President of the Executive Council).”

[21] The Saskatchewan Gazette, Part I volume 112, no. 10 (Regina: Queen’s Printer, 11 March 2016), 446.

[22] Saskatchewan, Order-in-Council 149/2016, “Issue Writ of General Election for Monday, April 4, 2016 (President of the Executive Council).”

[23]Saskatchewan, Order-in-Council 178/2016, “Convene the First Session of the Twenty-Eighth Legislative Assembly on Tuesday, May 17, 2016 at 10:00 a.m. (President of the Executive Council).”

[24] The Saskatchewan Gazette, Part I volume 112, no. 18 (Regina: Queen’s Printer, 6 May 2016), 922.

[25] Saskatchewan, Journals of the Legislative Assembly, 28th Legislature, 1st Session, 65 & 66 Elizabeth II, 2016-2017, volume CXXII, 17 May 2016  (Regina: Legislative Assembly, 2018), 1-11.

[26] Saskatchewan, Legislative Assembly. An Act to Amend the Legislative Assembly and Executive Council Act. Bill 4, 26th Legislature, 1st Session, 2008.

[27] Darcy McGovern, [“Fixed Election Dates”] In Saskatchewan, Legislative Assembly. Hansard Verbatim Report, Standing Committee on Intergovernmental Affairs and Justice, 26th Legislature, 1st Session, No. 6, 21 April 2008 (Regina: Legislative Assembly of Saskatchewan, 2008), 106-107.

[28] Don Morgan [“Fixed Election Dates”] In Saskatchewan, Legislative Assembly. Hansard Verbatim Report, Standing Committee on Intergovernmental Affairs and Justice, 26th Legislature, 1st Session, No. 6, 21 April 2008 (Regina: Legislative Assembly of Saskatchewan, 2008), 107.

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, Fixed-Date Elections. Bookmark the permalink.

3 Responses to The Fixed-Date Election Law Forced Saskatchewan’s Upcoming Pandemic Election

  1. For many reasons, this almost certainly doesn’t apply to the Saskatchewan elections or to CoViD-19 (not least because there is ample time to prepare, if needed, for conducting the election entirely or mostly by post), but if there were an exigent public health emergency that both prevented the holding of an election and required continuing Assembly/Parliamentary scrutiny or new primary legislation, could the doctrine of necessity perhaps allow for the continuation of the Parliament (followed perhaps by subsequent retrospective constitutional amendment legitimating the continuation)?
    I am specifically thinking of this possibility in light of this recent interesting article on the doctrine of necessity and CoVid-19 https://ukconstitutionallaw.org/2020/05/07/constantinos-kombos-covid-19-and-the-cypriot-example-a-constitutional-paradox/), as well as the discussion in this article on the holding of necessary but potentially unconstitutional remote sittings of the Oireachtas in Ireland: http://constitutionproject.ie/?p=770

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    • Saskatchewan’s Chief Electoral Officer specifically ruled out conducting this election by mail-in ballot. Relying on mail-in ballots by default is apparently much more logistically difficult than commonly thought.
      https://www.linkedin.com/pulse/your-ballot-mail-shawn-pollock

      Elections Saskatchewan is going to hold the election probably with a greater number of polling places to facilitate physical distancing, etc.

      I’m not convinced that the Doctrine of Necessity would apply here, though, coincidentally, I actually wrote about it on another post that went up today.

      With respect to legislatures in Canada, I think that what we would have to do is let section 4(1) of the Constitution Act, 1982 run its course. A legislature would dissolve automatically, by efflux of time, but we would delay instead issuing the writs of election for a while, hold the election later, and aim to meet the other constitutional requirement that the legislative assembly meet at least once per calendar year.

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  2. Very thorough

    This fixed Election Day nonsense reminds me of epicycles invented to allow for “errors” in the earth-centred explanation of planets

    It is dumber than not adjusting for inflation the Senate’s $4000 qualifications/ disqualifications (as set in 1867)

    And that IS very dumb

    Robert Ede
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    RE/MAX Hallmark Realty Ltd
    685 Sheppard Ave East, #401
    Toronto
    Direct – 416.819.7333
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