Introduction 

A year ago, Dwight Ball announced his intention to resign as Premier of Newfoundland and Labrador as soon as the Liberal Party had selected his successor as party leader.[1] The Liberal Party’s convention did not end up doing so until 3 August 2020 when they elected Andrew Furey, MHA for Humber-Gros Morne.[2] Lieutenant-Governor Judy Foote then appointed Furey as the 14^th Premier of Newfoundland and Labrador (since 1949) on 19 August 2020.[3]

A year ago, I pointed out that Newfoundland and Labrador must hold an early election in 2021 because of a unique peculiarity of its fixed-date election law contained in section 3.1 of the House of Assembly Act.

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.[4]

I delve into the complete legislative history of this provision in pages 56 to 62 of my thesis “Reining in the Crown’s Authority Over Dissolution: Canada’s Fixed-Date Election Laws versus the Fixed-Term Parliaments Act of the United Kingdom,” if you’re interested in the full story. But it suffices to say that this provision is almost certainly unconstitutional, ultra vires of section 41(a) of the Constitution Act, 1982, because it fetters the authority of the office of Lieutenant Governor over dissolving the legislature. However, no one has yet challenged the constitutionality of the provision in court.

Under section 3.1, the new Premier, Andrew Furey, must have advised the Lieutenant-Governor to issue the writs of a general election for no later than 19 August 2021. Since section 58(1) of the Elections Act mandates that the writ shall last between 28 and 35 days, Furey would have needed to advise Her Honour accordingly between 15 and 22 July 2021. Instead, Furey inexplicably decided to advise on 15 January that the general election be held on 13 February.[5] Furthermore, the Gazette shows that the Administrator, and not the Lieutenant-Governor, promulgated the proclamations and writs of election.[6] (The Lieutenant Governor, Judy Foote, was in hospital at the time).[7]

Parliamentum’s analytics first alerted me of the gathering storm about to strike The Rock on Monday, 8 February, when my post from February 2020 suddenly garnered a lot of attention. And on 11 February, we all learned why. Premier Furey has plunged the Rock beneath the second wave of COVID-19 for no reason whatsoever, and now all Newfoundlanders and Labradoreans will suffer the consequences.

What The Elections Act Says

The Elections Act does not provide the authority to do what the Government of Newfoundland and Labrador has done.

Section 87 at most only allows the polling to be deferred from Saturday, 13 February to Monday, 15 February. And the COVID Crisis will surely not have abated within those 48 hours; if anything, the rate of infection will only have risen.

Adjourned or deferred poll

87 (1) Notwithstanding paragraph 10(2)(b), where because of obstruction or delay due to weather, or where for another appropriate reason, a returning officer or a deputy returning officer is prevented or hindered from proceeding with or taking the poll in a polling division or in a part of a division, the returning officer may, with the prior approval of the Chief Electoral Officer, direct that the taking of the poll in that polling division or part be adjourned or deferred until the next day, not being Sunday or a holiday as defined in the Labour Standards Act , and the next succeeding day also, if necessary, in order to complete the taking of or to take the poll.

(2) Where the taking of the poll is adjourned or deferred under subsection (1), the returning officer shall, if the circumstances permit, post a notice of the adjournment or deferral as soon as possible afterward at a conspicuous place in the polling division concerned.

(3) Where the taking of a poll is adjourned or deferred under subsection (1), the taking of the poll shall be completed or the poll shall be taken on the day to which the taking has been adjourned or deferred.

(4) An adjourned or deferred poll shall be conducted in all respects in the same manner as is provided by this Part for the holding of the poll on the ordinary day of polling and is, in all respects and for all purposes, of the same effect as if it had been held on the ordinary day of polling.[8]

I suspect that the Chief Electoral Officer, when pressed, will point to section 62, on “The Withdrawal of Writ,” as justification.

Withdrawal of writ

62 (1) Where a returning officer to whom a writ of election has been directed refuses or is unable to act or is disqualified from acting or is removed and there is no one able under Division A to act in place of that returning officer, that writ may be withdrawn by the Chief Electoral Officer and another writ of election may be issued which shall be directed to the person in the electoral district concerned that the Chief Electoral Officer may designate.

(2) The person to whom another writ of election has been directed under subsection (1) is then the returning officer for the electoral district to which the writ relates.

(3) Where a writ of election has been withdrawn a notice of withdrawal in the prescribed form shall be published in a special or ordinary issue of the Gazette.

But this section says nothing about changing the date of the writ; it merely provides that a different person be appointed as a returning officer for a riding.

And even if the Chief Electoral Officer could somehow construe section 62 into saying what he wants it to mean, he must nevertheless abide by section 58(1), which sets the minimum and maximum duration of the writ at between 28 and 35 days.

58 (1) The day of polling to be fixed by the proclamation required under section 57 shall be a day not less than 28 clear days from the date of the proclamation nor more than 35 clear days.

Since the writ began on 15 January 2021, this puts the possible date of the general election between 12 to 19 February. And yet, on 11 February 2021, the Chief Electoral Officer issued an extraordinary order – with no basis in statute whatsoever – cancelling the polling day and in-person voting for fully 18 out of 40 ridings; voters in these ridings will no longer be allowed to vote in person on 13 February but can now instead mail in special ballots postmarked up to Thursday, 25 February 2021.[9] It says:

With the announcement of significant increases in COVID-19 cases this week, my office has experienced considerable operational impacts. Many election workers have resigned out of fear of interacting with the public on Election Day. We cannot hold traditional polls without the support of these people.

The large number of individuals currently in self-isolation is also a major concern. These recent cases of COVID-19 affect the most densely populated region of our province. This is worrisome, as we now have confirmed community spread. I am concerned for our election workers and for the electorate, in general.

Therefore, I am announcing that in-person voting in the following electoral districts will be postponed to a later date:

• Cape St. Francis
• Carbonear – Trinity – Bay de Verde
• Conception Bay East – Bell Island
• Conception Bay South
• Ferryland
• Harbour Grace – Port de Grave
• Harbour Main
• Mount Pearl North
• Mount Pearl – Southlands
• Mount Scio
• Placentia – St. Mary’s
• John’s Centre
• John’s East – Quidi Vidi
• John’s West
• Topsail – Paradise
• Virginia Waters – Pleasantville
• Waterford Valley
• Windsor Lake

As a result, the drive-thru voting option previously announced is also canceled.

Traditional voting will continue on Saturday, February 13, 2021 in all electoral districts not listed above. The results of these districts cannot be released until voting has concluded in all districts to protect the integrity of the vote.

I have also made the decision to extend special ballot voting to all regions of the province. The extended timeline is in accordance with the two-week circuit break implemented by the Department of Health.

Any eligible voter may apply to vote by mail using a special ballot. The deadline to apply is Saturday, February 13 at 8:00 p.m. to align with the time and date of the closing of the polls.

After the application is approved, a special ballot kit will be mailed to the elector and must be returned to Elections NL (via postage-paid Express Post envelope provided or by drop off) on or before Thursday, February 25, 2021.

Absolutely extraordinary! I must emphasise this point strongly: the Chief Electoral Officer has no statutory or regulatory authority whatsoever to issue this directive. Nothing in the Elections Act authorises him to do so, and he cannot act on some nebulous prerogative authority. This is totally unconstitutional. And in practical terms, this decision destroys the integrity of the election by definition, with Labradoreans and Newfoundlanders outside the Avalon Peninsula voting in person on 13 February and Avalonians voting by mail up to 25 February – after the maximum duration of the writ expires under the Elections Act. This is madness. Chief Electoral Officer Bruce Chaulk is unworthy of the title, and Premier Andrew Furey committed an unfathomably stupid error in judgement by calling an election precisely at the time of year when respiratory virus peak in their potency and deadliness. And this decision came from a physician no less! Andrew Furey is, if you can believe it, an MD, an orthopaedic surgeon.

Conclusion: What an Omnishambles!

Andrew Furey’s stupidity has compounded the stupidity of Newfoundland and Labrador’s uniquely pernicious, and probably unconstitutional, fixed-date election law. He has run his province aground, and he only just took the helm as premier six months ago.

In a Jean “A Proof Is a Proof” Chretien-like tautological turn of phrase, Furey lashed out at reporters who rightly questioned his poor judgement on the timing of the election and tried to shirk his responsibility: “There had to be an election in 2021. That’s the law. It’s not my law, it is the law. And I said I would follow the law, which we should follow.”[10] What Furey neglected to mention is that nothing prevented him from exercising the good sense to hold off on calling this mandatory election until summer, like early June. He could have waited until July, for a polling day of 19 August because section 3.1 of the House of Assembly Act gives new premiers appointed mid-parliament up to one year before they have to precipitate an election. But most ideally of all, Furey should have tabled a bill to repeal section 3.1 of the House of Assembly Act altogether at some point during the 13 sitting days in October 2020, 4 sitting days in November 2020, or 2 sitting days in December 2020. As I chronicled in my thesis, the Legislature of Newfoundland and Labrador had already amended the fixed-date election law in 2015. Why not amend it again?

Earlier this week, Furey blithely dismissed his own poor judgement and foolish decision to pull the precipitate an election at the height of COVID Season, saying, “No one has a crystal ball.”[11] Fortunately, no one needs a crystal ball or the clairvoyance of Emperor Palpatine to have predicted this outcome. Furey had only to read the House of Assembly Act and plan accordingly; a statutory provision which has existed since 2004 should not have taken him by surprise. It’s not as if he didn’t know that he needed to abide by this provision and advise the Lieutenant-Governor to dissolve the 49^th General Assembly by July 2021, for polling day by 19 August 2021. Now it is too late. Dissolution means the civil death of a parliament, and it cannot be undone. The 49^th General Assembly has expired. It has met its maker. It has ceased to be. A dissolved parliament cannot be re-summoned. You only dissolve once. My friend and sometimes collaborator Lyle Skinner made similar points to The Independent.

A parliament which no longer exists cannot act. So now Premier Furey might try to invoke a novel interpretation of the Doctrine of Necessity and, according to CTV News, advise the Lieutenant Governor to revoke the writs issued on 15 January and, in effect, cancel this election,[12] or somehow try to bypass the minimum and maximum duration of the writ set out in section 58.1 of the Elections Act – as if this election never happened. We’ve all experienced time dilation during this pandemic, but wiping out the writ as if it never happened and starting it over still sounds jarring. And that would surely violate the purpose and any reasonable interpretation of section 58(1) of the Elections Act.

This pathetic facsimile of a parliamentary system that passes for cabinet government in Newfoundland and Labrador leaves much to be desired. Maybe a Commission Government would suit this province better once more. 

Similar Posts: 

• Newfoundland and Labrador Must By Law Hold An Early Election By 2021 (February 2020)
• Newfoundland and Labrador Will Also Go for an Early Election in May 2019 (April 2019)
• On the Doctrine of Necessity: The Division of Powers Does Not Apply During a Pandemic (May 2020)

Notes

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

[2] Ryan Cooke, “Andrew Furey Wins Liberal Leadership Race, Will Become 14^th Premier of N.L.,” CBC News, 3 August 2020.

[3] Government of Newfoundland and Labrador, Executive Council Office, “Premier Furey Unveils New Cabinet,” 19 August 2020; Lindsay Bird, “New N.L. Premier, New Finance Minister: Andrew Furey Takes Office and Shuffles Cabinet,” CBC News, 19 August 2020.

[4]House of Assembly Act (Newfoundland and Labrador), RSNL 1990, Chapter H-10, s. 3.1.

[5] Government of Newfoundland and Labrador, Office of the Chief Electoral Officer, “Election Writs Issued for Newfoundland and Labrador’s 2021 Provincial General Election,” 15 January 2021.

[6]The Newfoundland and Labrador Gazette, Extraordinary, Part II, “Newfoundland and Labrador Regulation 6/21,” and “Newfoundland and Labrador Regulation 7/21” (St. John’s: Queen’s Printer, 15 January 2021), 3-11. Order-in-Council 2021-011 dissolved the 49^th General Assembly, and Order-in-Council 2021-012 issued the writ of election. Neither of them indicated when the 50^th General Assembly would be summoned for dispatch of business.

[7] Judy Foote, “Unexpected surgery last Sunday, after a visit to emergency, resulted in being re-admitted on Friday for a week following post surgery complications,” Facebook Post, 24 January 2021.

[8]Elections Act (Newfoundland and Labrador), SNL 1992, Chapter E-3.1.

[9]Government of Newfoundland and Labrador, Office of the Chief Electoral Officer, “Statement from the Chief Electoral Officer,” 11 February 2021.

[10] Peter Jackson, “Newfoundland and Labrador’s election rules can easily be changed: Mount Pearl incumbent,” The Chronicle-Herald, 9 February 2021.

[11] Peter Jackson, “Newfoundland and Labrador’s election rules can easily be changed: Mount Pearl incumbent,” The Chronicle-Herald, 9 February 2021.

[12] Michael MacDonald, “Uncertainty Surrounds Election Delay in Newfoundland and Labrador,” CTV News, 11 February 2021.