How This Happened

Today, on 13 February 2021, Newfoundlanders and Labradoreans across the province should have made their way to their polls and cast their ballots in a general election for their province’s 50^th General Assembly. But events intervened.

Newfoundland and Labrador now finds itself navigating through uncharted waters amidst thick fog. Premier Dr. Furey made the foolish decision to trigger an election at the peak of flu season, with a campaign between 15 January and 13 February. Cases of COVID-19 started mounting earlier this week, and Chief Electoral Officer Bruce Chaulk issued a desperate plea on 11 February that the Premier advise the Lieutenant Governor postpone the election after poll workers for Elections Newfoundland and Labrador quit in fear of their safety. Chaulk then took the unprecedented action of cancelling in-person voting in 18 out of 40 ridings that same day, through ambiguous legal authority. On 12 February, the Chief Medical Officer announced that the province would enter another stringent lockdown effective immediately, and the Chief Electoral Officer later that day cancelled all in-person voting in the remaining 22 ridings and unilaterally extended the writ for special ballots to 1 March 2021, in direct violation of section 58(1) of the Elections Act, which sets the maximum writ at 35 clear days, in this case, up to 20 February 2021 at most.[1]The Premier made a terrible error in judgement, which, in turn, has forced the Chief Electoral Officer to issue an illegal directive which directly contradicts the Elections Act that he is tasked to uphold. This confluence of stupidity and illegality calls into question the integrity and constitutionality of this entire election, the ill-begotten results of which we will not know until  mid-March at the earliest.

Newfoundland and Labrador should have amended and updated its Elections Act when the House of Assembly sat between September and December 2020 to give the Chief Electoral Officer flexibility within the clear bounds of statutory authority, similar to how the Lieutenant Governor-in-Council of Saskatchewan passed new Elections Act Regulations, as secondary legislation, in advance of its election in 2020 – which its fixed-date election law also scheduled during the pandemic. At this stage, I can only hope that other provinces and territories, and Ottawa, will take note and that their legislatures will amend through primary legislation, or their Governors-in-Council will modify through second legislation, as the case may be, their respective Election Acts, so that no other jurisdiction in Canada subjects itself to this pathetic and unedifying spectacle.

Furey the Politician Overrules Furey the Physician

On 15 January 2021, Premier Andrew Furey announced that he had secured a dissolution of the 49^th General Assembly from the Administrator (since the Lieutenant Governor was sick in hospital) and a general election for 13 February 2021. He declared, at 2:22 in the video below:

“I just visited with the Chief Justice, and she accepted my request to dissolve the House of Assembly for an election across Newfoundland and Labrador on Saturday, 13 February 2021. I know that there’s been more buzz about an election as of late, and though one has to be called, I truly struggled with this decision. I know that safe elections have taken place during the pandemic, but I also know that this is an uncertain and anxious time. With our COVID numbers so low, and after consulting with Dr. Haggie [the Minister of Health] and public health officials, I concluded that the best and safest time is now. The people of our province deserve a stable government with a mandate toward securing our collective future. […]”

That sounded like a standard electoral announcement. But then Furey tempted fate with what followed at 4:07:

“Our response to the pandemic has become a nation-wide example for others to follow. We have all made sacrifices and followed the direction of Dr. Haggie and Dr. Fitzgerald, never letting our guard down, even as we start to roll out the vaccine throughout the province. We got our children safety back to school, and have endured the Second Wave so far without any major incidents.”

Furey closed off that thought by boasting in smug self-satisfaction: “Of course, maybe having three doctors in charge was helpful here.” He must surely already have come to regret that presumptuous gloating.

The Politician overruled the Physician; any MD worth his salt would refuse to hold an election during the time of year where respiratory viruses spread the most easily and infect and kill the most victims. Furey kept alluding to section 3.1 of the House of Assembly Act, which requires that a premier appointed mid-parliament, such as he, must advise the Lieutenant Governor to dissolve the assembly within 12 months of his appointment, unless the legislature is already over 3 years old. But Furey did not mention that this law left him far more leeway than five months. In fact, Furey could have precipitated this election as late as 21 July 2021, for a polling day on 18 August 2021, twelve months less a day for his appointment as premier on 19 August 2020.

Better yet, Furey could have used the 24 sitting days of the House of Assembly from September to December 2020to table legislation amending the Elections Act, to give the Chief Electoral Officer clear authority to preserve the integrity of a general election during a pandemic, especially given that the Chief Electoral Officer of Saskatchewan had raised similar concerns in his province earlier in 2020.[2] Furey should also have tabled a bill to repeal section 3.1 outright, thus removing the foolish requirement that there be an election in 2021 altogether. The 49^th General Assembly would have lasted until 2023 otherwise.

The press questioned Furey’s decision to trigger an election in January-February 2021 immediately after he delivered that speech.[3] (You might have to turn the sound all the way up and listen with headphones to hear the questions in CPAC’s footage). One journalist asked why Furey did not wait for the upcoming report of Premier’s Economic Recovery Team, led by Dame Moya Greene, which he appointed in October 2020,[4] or why he did wait until later in 2021 to table a budget first, before getting the election under way. Furey replied:

“I promised that I wouldn’t call an electio before a budget; I didn’t. The recommendations that Moya Green and her taskforce are going to put forward are just those: recommendations. They will receive a thorough public consultation where everyone will have a chance to have a say, and then we will table that final report in the House of Assembly.”

Here, Furey was referring to the budget tabled in 2020 (not what the reporter had in mind) tabled in September 2020.[5]

Furey continued, “There will always be a reason not to have an election, but right now following the law, which I always said I would and have an election in 2021, and I think that now’s the best time.” Furey seemed confident that nothing could go wrong during this election campaign and that COVID would not flare up. He pointed out in response to another question:

“[The campaign] will be different, there’s no question, but we’ve seen that this has been done in three other provinces – three other provinces have had a general election [during the pandemic], mind you with numbers [of persons infected with COVID-19] far greater than we have – but we’ll still continue to run it with the COVID restrictions that public health has laid out, and we’ll follow those. And it will be different, there’s no question about it, but we can do it safely. And the democratic process will continue, just as normal life has continued in this pandemic.”  

In his last response, he repeated, with some exasperation, the same refrain:

“There will always be a reason not to have an election. If we said, ‘Well, ok, we’ll wait until then’, then it would be about the next budget, and if we say, ‘We’ll wait until the next budget,’ then it [the election] would be about the fall fiscal update. The truth of it is, I’m following the law, which I said I would always do, and have an election in 2021. There will always be a reason [not to hold the election].”

Chief Electoral Officer Bruce Chaulk Turns the Law Upside Down

On 11 February, Chief Electoral Officer Bruce Chaulk wrote a letter to the three party leaders outlining the desperate situation that Elections Newfoundland and Labrador faced now that several part-time, elderly electoral workers had quit because they feared for their safety amidst the spread of the British strain of COVID-19 rampaging across the province. Chaulk noted that “more individuals will choose their personal health over working in the election, and polls will not be able to open.”[6] Conscious of both his duty and his limited authority, Chaulk added:

“The current significant outbreak has had a profound impact on our ability to conduct a fair election and immediate action is required to be taken. The Elections Act provides limited options to the Chief Electoral Officer for delaying an election. It was never contemplated that the Chief Electoral Officer would have the ability to change the date of the writ assigned by the Lieutenant Governor. There are constitutional limitations and other legal implications that limit my ability to unilaterally prolong an election period for an indefinite time.”

Here in this letter, Chaulk mostly understood his proper statutory responsibilities. The Elections Act does not give the Chief Electoral Officer the authority to extend the duration of an election unilaterally in contravention of the Lieutenant Governor’s proclamation. Section 57 of the Elections Act clearly states that the Lieutenant Governor issues the writ (on the advice of the Premier), and section 58(1) sets the minimum and maximum duration of the writ period between 28 and 35 days.

But then Chaulk went on to argue that the Chief Medical Officer should issue a directive under section 28 of the Public Health Protection and Promotion Act  to “delay the election.” Chaulk appears to have had section 28(k) in mind, which says:

28 (1)  While a declaration of a public health emergency is in effect, the Chief Medical Officer of Health may do one or more of the following for the purpose of protecting the health of the population and preventing, remedying or mitigating the effects of the public health emergency:

(k)  take any other measure the Chief Medical Officer of Health reasonably believes is necessary for the protection of the health of the population during the public health emergency.[7]

It is ludicrous to suggest that the Lieutenant Governor-in-Council and cabinet ministers could invoke section 28(k) of the Public Health Protection and Promotion Act as a catch-all Henry VIII Clause to nullify the Elections Act, vest the Chief Electoral Officer with new authority outside what the Elections Act permits him, and cancel the writs of election issued on 15 January. Chaulk concluded with a suggestion almost as objectionable: “Alternatively, the party leaders need to discuss the current issue with a view to contacting the Lieutenant Governor to explore a constitutionally sound mechanism to postpone polling day.” Nothing in the Elections Act gives the Lieutenant Governor the authority to withdraw or nullify writs, or to ignore the minimum and maximum duration of the writ.

At any rate, the Minister of Health declared a public health emergency on 11 February pursuant to this statute, and on 12 February, the Chief Medical Officer issued a Special Measures Order under section 28 forcing all but essential businesses to close.[8] That same day, only two days before the scheduled polling day, Chaulk contradicted his own letter and took matters into his own hands. He declared that he would suspend all in-person voting for the 18 constituencies on the Avalon Peninsula because the new fast-spreading British variant of the Coronavirus had established a beachhead in St. John’s and its environs and that Avalonians would instead have to vote by special ballot by 25 February 2021 – five days longer than the maximum duration of the writ under section 58(1) of the Elections Act. Labradoreans, and Newfoundlanders outside of the Avalon, in the other 22 ridings would continue to vote in person.[9]

Chaulk not only rejected his own view which he expressed in his letter on 11 February but fully embraced cavalier arbitrariness. He declared that he could unilaterally close polls, cancel voting in person, and extend the writ beyond the statutory limit because “there is no provision in the Elections Act that prevents it.”[10]By that logic, Chaulk could decree that only Newfoundlanders and Labradoreans with blue eyes are allowed to vote – because nothing in the Elections Acts says that he cannot.

First of all, as a matter of fact, section 58(1) of the Elections Act does prevent what Chaulk did. Secondly, and more fundamentally, Chaulk has embraced a dangerous and authoritarian attitude which completely inverts our entire system of laws and government. Legislatures delegate authority to Governor-in-Council appointees and civil servants, who can then do only what their enabling legislation expressly permits them to do. They must uphold and are bound by their enabling statutes. Civil servants do not possess an unlimited authority to do whatever they wish unless legislation prohibits it. In lashing out at his critics – and I hope that he had me in mind as one of them – Chaulk not only stepped outside the bounds of his statutory authority delegated from the legislature, but he also attempted to invert and upend the rule of law and parliamentary sovereignty themselves as the foundation upon which our system of government functions. He could have at least had the decency to say that he was relying on, say, section 62 of the Elections Act.

The Rock Locked Down: Voting in Person Cancelled

On 12 February, the province’s Chief Medical Officer, Dr. Fitzgerald, held a press conference alongside Premier Furey, and she announced that the entire Province of Newfoundland and Labrador would enter a new lockdown in an effort to contain the spread of the British strain.[11] This means forcing all non-essential businesses to close – and cancelling all voting in person today, though Fitzgerald and Furey refused to say so outright throughout this press conference. After Chief Medical Officer Fitzgerald announced the lockdown, at 13:30, Premier Furey intoned in his best serious head-of-government voice: “As your Premier, I can’t stress to you enough the urgent nature of this situation. My one and only concern right now is the safety of the people of our province. […].”

He added:

“As doctors, we know too well what this variant of COVID-19 can do. I want to reassure you that Dr. Fitzgerald, Dr. Haggie, and I, as well as every member of your government, will do everything we can to contain this spread.”[12]

Listening to that paternal exhortation, you would almost forget that it was Dr. Furey himself who in the first place decided to call this general election during a pandemic, in January, at the height of the traditional flu season and at the time of year when all respiratory viruses spread the most easily. He conveniently omitted his direct personal responsibility for having forced this election upon Newfoundlanders and Labradoreans and then turned the press conference over to the dulcet Mancunian tones of the third MD in this medical trifecta, Dr. Haggie, the Minister of Health and Community Services.

Moreover, at 16:50, a journalist asks Premier Furey what will become of the election that he unnecessarily triggered on 15 January, and Furey, quite extraordinarily, claimed that he hadn’t given the election that he triggered any thought that day:

“My primary focus right now is on the health and safety of every Newfoundlander and Labradorean; I haven’t given much thought to the election. Presumably, [Chief Electoral Officer] Mr. Chaulk will update the public as appropriate.”[13]

And so Chief Electoral Officer Bruce Chaulk did. Chaulk issued another order that evening, on 12 February, cancelling voting in person in the remaining 22 constituencies outside of the Avalon, advising eligible Newfoundlanders and Labradoreans to apply for and cast special ballots by mail, and extending the writ yet further, this time to 1 March, fully 9 days beyond the statutory deadline. What is more, Chaulk later pledged that he would extend the deadline even further into March, if necessary to accommodate isolated communities in Labrador without roads and without internet access.[14] Chaulk’s press release says:

“As a result of this evening’s change to Newfoundland and Labrador’s Public Health Alert Level, I am suspending in-person voting for all 40 provincial electoral districts. In-person voting will not be rescheduled.

The election will now shift exclusively to voting by mail, using Special Ballots. Information on the Special Ballot voting process can be found in the backgrounder below.

I urge anyone interested in voting in this election to apply for a Special Ballot to ensure your democratic participation.

We have extended the application deadline to Monday, February 15 at 8:00 p.m. Anyone requiring assistance with the application process is encouraged to call our toll free number 1-877-729-7987 or 729-0789 (local).

Completed voting kits must be returned to Elections NL on or before Monday, March 1.”[15]

Conclusion

This omnishambles continues as Captain Furey runs aground the ship of state. Chief Electoral Officer Chaulk has violated the Elections Act by arbitrarily extending the writ in contravention of section 58(1) and of the proclamation issued by the Administrator on the Premier’s advice. That alone should call the legality of this entire election into question. Furthermore, Chaulk’s decrees of 11 and 12 February have already raised concerns that would his plan would violate the Democratic Right to vote enshrined in section 3 of the Charter; they make clear, for instance, that voters must affirmatively apply for special ballots themselves by email, wait for them to arrive by mail, and then send them back by mail. Some communities in Labrador lack internet access entirely, and citizens should not be forced to use a computer and have access to the internet as a prerequisite to vote in any case. Mailing the special ballots themselves to and from remote communities on this short notice also poses a logistical nightmare in and of itself. This entire general election could be challenged in the courts on both these  grounds. The results of this ill-begotten, and potentially redundant, venture might not be tallied until well into March or April; this uncertainty will persist and drag out Furey’s caretaker cabinet for weeks or months. And it is entirely possible that a second election will have to held in 2021.

Ultimately, the fault lies with Premier Furey for having called the election in winter in the first place, and Newfoundlanders and Labradoreans would do well to keep that in mind as they try to cast their special ballots.

Similar Posts:

• Electoral Disaster Strikes The Rock: Newfoundland and Labrador’s Crazy COVID Election
• 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)
• The Fixed-Date Election Law Forced Saskatchewan’s Pandemic Election (May 2020)

Notes

[1]    Elections Act(Newfoundland and Labrador), SNL 1992, Chapter E-3.1. s.58(1); Interpretation Act(Newfoundland and Labrador), RSNL 1990, Chapter I-19, s.22(k).

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

[3]    Premier Andrew Furey, press conference, CPAC, “Newfoundland and Labrador Premier Andrew Furey calls provincial election – January 15, 2021,” 15 January 2021.

[4]    Government of Newfoundland and Labrador, Executive Council, “Premier Furey Announces Members of Economic Recovery Team,” 22 October 2020.

[5]    Rob Antle, “N.L. Delivers Pandemic-Delayed Budget with $1.84 B Decifit, Punts Tough Decisions to 2021,” CBC News, 30 September 2020.

[6]    Bruce Chaulk, “Letter to Party Leaders,” Office of the Chief Electoral Officer, 11 February 2021.

[7]    Public Health Protection and Promotion Act (Newfoundland and Labrador) SNL 2018, Chapter P-37.3, s.28(k).

[8]    Newfoundland and Labrador, Public Health Orders, “Extension of Public Health Emergency,” 11 February 2021; Newfoundland and Labrador, Special Measures Order (General – Alert Level 5), 12 February 2021.

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

[10]  CBC News, “Campaigning Can Continue Past Feb. 13, Says Chief Electoral Officer, As Town Closes Polling Station,” 12 February 2021.

[11]  Malone Mullin, “Coronavirus Variant Puts N.L. Back in Lockdown; In-Person Voting in Provincial Election Suspended,” CBC News, 12 February 2021.

[12]  Government of Newfoundland and Labrador, “February 12, 2021 COVID-19 Update #2,” YouTube, 12 February 2021.

[13]  Ibid.

[14]  Garrett Barry, “Party Leaders Call For Meeting With N.L. Election Chief After Unprecedented Day,” CBC News, 13 February 2021.

[15]  Newfoundland and Labrador, Office of the Chief Electoral Officer, “Statement from the Chief Electoral Officer,” 12 February 2021.