Conflating the Caretaker Convention with The Doctrine of Necessity

I remain transfixed by the spectacle unfolding in Newfoundland and Labrador and will have to report back once Elections Newfoundland and Labrador counts the ballots cast in this illegitimate election.

Last week, Ed Hollett, a political historian based in St. John’s, accused me and Lyle Skinner of construing the Elections Act of Newfoundland and Labrador too narrowly. “You need to look at the Act again as a whole document, not just a list of rules. I think there’s an element of that limited approach in Bowden’s commentary as well,” he insisted. By “limited,” he means “factually correct,” because the words in statutes must mean something. “Looking at an act as a whole” does not substitute for the absence of specific provisions that would need to exist in order for your argument to be true.

Whenever someone accuses you of interpreting a statute too narrowly, or something to that effect, it means that he is about to propose something that the statute clearly prohibits or does not support or simply does not contain at all. A statute is not greater than the sum of its parts, and you cannot magically derive statutory authority where no statutory provision exists. I awaited Hollett’s full counter-argument with eager anticipation and became greatly disappointed upon reading it.[1] The closest that he comes to shedding new insight into statutory interpretation in general and the Elections Act in particular occurs in this observation:

“By Wednesday, the trajectory of the outbreak was clear enough to halt the planned vote on Saturday.  Had the Premier delayed the vote, something that was well within his authority as Premier, he would have done so with the support of the other parties in the election and a majority of voters. 

No one could have credibly accused him of acting improperly.  After all, delaying the entire vote until it was safe for the majority to vote in person would affect all campaigns equally.  Liberals would get no advantage from it. Nor would a delay hurt the chances Furey would win as big as people expected.  No one’s health would be at risk, to boot.”

Michael Pal, Professor of Law at the University of Ottawa, has made similar noises of late.[2] But Hollett is not making a statutory argument at all, because nothing in the Elections Act or the principles of statutory interpretation support what Chief Electoral Officer Chaulk has done in unilaterally violating the writs of election issued on 15 January 2021 and extending them far beyond the 35 days that section 58(1) of the Elections Act allows, and well beyond the 28 days prescribed in the writs. Nor would any argument based on statutory interpretation support the view that Premier Furey should have advised the Lieutenant Governor to withdraw the existing writs of election. Hollett has unwittingly made an argument not on statutory interpretation but instead from the Doctrine of Necessity, and he ought to have expounded upon that further. Worse still, Hollett also conflated the Caretaker Convention with the Doctrine of Necessity.

“The truth is that Furey wears two hats during the election.  He is Premier and candidate. Furey ought not to make major decisions about government during the campaign. There’s a long-standing convention in Westminster-style parliaments about that. 

In an emergency, though, the incumbent Premier’s obligations change.  The caretaker convention, as it is called, allows for that. The Premier and his cabinet colleagues have a duty to ensure government officials respond correctly especially when issues of publicly safety are involved.  If the officials cannot sort things out, then the cabinet – above all, the Premier – have a duty to fix things.”

The Caretaker Convention does not mean that the Premier can advise the Lieutenant Governor to revoke all 40 writs of election simultaneously – thus, in effect, cancelling the general election altogether – in the absence of any statutory or prerogative authority to do so. The Caretaker Convention simply means that the incumbent ministry should not undertake controversial decisions during an election, or after an election in which its party loses its majority, which a subsequent ministry cannot easily reverse, unless absolutely necessary for the public good. The Executive Council Office of Newfoundland and Labrador already defined the Caretaker Convention clearly in 2019 in its document entitled “Guidelines for the Conduct of the Public Service During an Election.” Under this reasonable interpretation, the Caretaker Convention becomes operative the day that the House of Assembly is dissolved and the ends “after the election produces a clear result”, in other words, when either the results of the election show that the party from which the incumbent ministry is drawn wins a parliamentary majority, or when the incumbent ministry wins the vote of confidence on the Address-in-Reply in a minority legislature, or when the Lieutenant Governor swears in a new ministry.[3] During this period when the House of Assembly does not exist, the incumbent ministry by definition cannot command the confidence of the elected Assembly and therefore limits itself to undertaking “matters that are routine and non-controversial, or urgent action, such as emerging public health of safety concerns.”[4] That last clause about public health emergencies seems very prescient for something written in 2019, a year before the End Times imposed themselves upon us. But this would refer to legal directives issued, for example, as secondary legislation under section 28 of the Public Health Protection and Promotion Act, not to novel illegal or extra-statutory action to revoke all the writs of election in direct violation of the Elections Act.  These are two entirely different and separate matters. The Caretaker Convention does not magically imbue the executive with new authority outside of statute or prerogative recognised at Common Law. Simply because this particular scenario of revoking writs could only happen when the Caretaker Convention applies does not make it an expression of the Caretaker Convention.

There Is No Statutory or Prerogative Authority to Revoke Writs Already Issued

Hollett never presented an argument in favour of the Chief Electoral Officer did based on the Elections Act. Instead, he took for granted the assertion that the Premier could somehow have delayed the election, without offering any evidence supporting that claim. Hollett has instead – and quite unwittingly – resorted to a crude application of the Doctrine of Necessity in arguing that Premier Furey should have advised the Lieutenant Governor to cancel the writs of election of 15 January 2021 and rescheduled the general election entirely to some time later this year. But the Lieutenant Governor of Newfoundland and Labrador does not possess the authority to revoke all the writs of election on ministerial advice because the Elections Act does not authorise such action.

The process of calling an election in Canada entails three steps:

1. dissolving the existing legislature;
2. issuing the writs of election; and,
3. summoning the next legislature.

The Gazette usually includes these steps as two or three separate proclamations. However, Newfoundland and Labrador tends to group only the first two proclamations together and issue the proclamation summoning the 1^st session of the new House of Assembly later and separately. For example, the Gazette records proclamations dissolving the 48^th House of Assembly and issuing writs of election on 17 April 2019, for a polling day on 16 May 2019; subsequently, on 3 June 2019, the Lieutenant Governor issued another proclamation on Premier Ball’s advice summoning the 1^st session of the 49^th Assembly for despatch of business of 10 June 2019.[5] But in any case, the effect remains the same, and these three steps are still accounted for.

Dissolution represents the civil death of a parliament. Dissolution is final. A parliament dissolved no longer exists and therefore cannot be re-summoned. Only a parliament prorogued could be re-summoned for a new session. The Governor dissolves legislatures and summons assemblies on the advice of the Premier under prerogative authority (whether recognised at Common Law or entrenched in the Constitution Act, 1867). But the Governor-in-Council issues writs of election on the advice of cabinet pursuant to statutory authority (an Elections Act), not prerogative. (Newfoundland and Labrador’s Elections Act says “Lieutenant Governor,” but the province’s Interpretation Act makes clear that this means Lieutenant Governor-in-Council, as does the fact that the proclamation issuing writs of election comes with an Order-in-Council number). Legislatures have defined and constrained the authority over issuing writs, and the Governor-in-Council can only issue them pursuant to that statutory authority. A general election means that the Governor-in-Council issues x number of writs for x number of ridings, in effect as if all ridings went into by-elections simultaneously. A federal general election to the House of Commons means that the Governor General-in-Council issues 338 writs of election, and a provincial general election to the House of Assembly of Newfoundland and Labrador means that the Lieutenant Governor-in-Council has issued 40 writs of election for each of the 40 ridings.

Nothing in the Elections Act of Newfoundland and Labrador gives the Lieutenant Governor the authority to nullify or revoke the writs of election, on and in accordance with the Premier’s advice, in order to terminate an existing election campaign and postpone it until later. And in my decade of reading, researching, and writing about the history and practice of Responsible Government, I have never encountered anything which suggests that a prerogative authority exists at Common Law whereby the Governor-in-Council could by prerogative authority revoke writs of election issued originally under statutory authority. In general, the Common Law principle of functus officio, “having performed his office,” meaning that once an office-holder has discharged his duties under authority (in this case, the Lieutenant Governor under section 57 of the Elections Act), the authority is spent, and he can do nothing more.[6] He certainly cannot reverse a decision set in motion. Once the Lieutenant Governor issues writs on ministerial advice under section 57, that section becomes spent for that election campaign and cannot be reversed. The Supreme Court of Canada has affirmed this principle with respect to administrative tribunals in Chandler v Alberta Association of Architects in 1989, and there is no reason why it should not apply to statute as well.

“As a general rule, once an administrative tribunal has reached a final decision in respect of the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.  It can only do so if authorized by statute or if there has been a slip in drawing up the decision or there has been an error in expressing the manifest intention of the tribunal. To this extent, the principle of functus officio applies to an administrative tribunal.”[7]

Until this month, it would never even have occurred to me to pose the question whether the Governor can revoke all the writs of election in order to cancel one general election and restart it later. There is no prerogative authority to revoke writs issued under statute, and the general principle of functus officio prevents the Governor-in-Council from revoking all the writs of election without specific statutory authority to do so. Therefore, the only way that the Premier could advise the Lieutenant Governor to revoke the writs of election in order to re-schedule the entire election campaign until later in the year as Hollett proposed would flow from the Doctrine of Necessity – not an extraordinary exercise of an existing prerogative, and not from statutory authority.

The Doctrine of Necessity

The Doctrine of Necessity refers to the idea that the executive under exceptional circumstances must sometimes act outside of the confines of statute and the constitution in order to ensure the continuity of the State and preserve its overarching constitutional order.[8] But this question usually arises in response to true existential threats like war or insurrection, not because a hapless and irresponsible provincial premier triggered a snap election at an inexplicably stupid time. This concept probably doesn’t officially exist in Canadian law, and I learned about it from an Australian.

Anne Twomey, Professor of Law at the University of Sydney and the foremost expert in the entire Commonwealth on these matters, outlines the Doctrine of Necessity as follows:

The key conditions to an exercise of the principle of necessity are that there must be no other course of action reasonably available and any action must be: temporary only; undertaken bona fide; proportionate to the problem faced; and for the purpose of the preservation of the State and its people and the restoration of constitutionality, rather than the achievement of other aims, such as constitutional change. Such a power cannot be exercised to support the continuation in office of an illegal regime or to breach fundamental rights. It is only available to protect, not to destroy, the legal and constitutional order.[9]

As Twomey shows, the Doctrine of Necessity is, by definition, extra-legal and perhaps also paradoxical and tautological: it entails doing something illegal in order to save the concept of the rule of law from annihilation, and it exists because it must exist. It depends upon the judgement and goodness of those who presume to wield it and therefore also resides outside of the realm of the rule of law (sometimes called a “government of laws”) and relies instead upon on something akin to the Divine Right of Premiers, what Weber called charismatic authority, or what is sometimes called “a government of men.” While the Doctrine of Necessity probably hasn’t been recognised in Canada, other countries have attempted to entrench constitutional provisions approximating the Doctrine of Necessity, in an effort to tame the beast.

For example, the Weimar Republic set up a semi-presidential system somewhere in between the archetypal semi-presidentialism of the Fifth Republic of France (1958-present) and a standard parliamentary republic (such as Germany from 1949 to present). The President was elected directly by the German people, and the Bundestag was elected along the lines of party-list proportional representation. Normally, the President would appoint a Chancellor who could command the confidence of the Bundestag (very parliamentary) and would function mostly as a non-executive head of state, with the Chancellor and the Ministry taking responsibility for all decisions of the executive government. But Article 48 of the Weimar Constitution allowed the President to assume temporary dictatorial powers in case of an emergency, overriding both the Chancellor and Ministry on the one hand and the constitutional rights of German citizens on the other. The wording of the provision implies that the threat would come from an insurrection or coup d’etat – but perhaps I should say “putsch,” since this is Germany – against a state government, or in the case of real or apprehended war or an invasion of the German Reich as a whole.

If a Land fails to fulfill the duties incumbent upon it according to the Constitution or the laws of the Reich, the Reich President can force it to do so with the help of the armed forces.

The Reich President may, if the public safety and order in the German Reich are considerably disturbed or endangered, take such measures as arc necessary to restore public safety and order. If necessary he may intervene with the help of the armed forces. For this purpose he may temporarily suspend, either partially or wholly, the Fundamental Rights established in Articles 114, 115, 117, 118, 123, 124 and 153.

The Reich President shall inform the Reichstag without delay of all measures taken under Paragraph 1 or Paragraph 2 of this Article. On demand by the Reichstag the measures shall be repealed.

In case of imminent danger the government of any Land may take preliminary measures of the nature described in Paragraph 2 for its own territory. The measures are to be revoked upon the demand of the Reich President or the Reichstag.

Details will be regulated by a Reich law.

In most respects, the Republic of India is a bogstandard parliamentary republic, like Germany post-1949, Ireland, and Israel. But Part 18 of the Constitution of India introduces an element of semi-presidentialism by vesting its President, rather than the Prime Minister, with dictatorial powers in three classes of emergencies – national emergency, state emergency, and financial emergency – for a limited duration. (I haven’t copy-pasted the provisions here because they take up several pages and paragraphs). The Constitution of India clearly distinguishes between instances where the President acts at his own discretion and where the President acts on the Prime Minister’s advice. Section 75(1) says, “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.” Both the Weimar Republic and Republic of India included provisions subjecting their Presidents’ emergency dictatorial powers to their elected lower houses, bypassing their Prime Ministers and Cabinets entirely.

Finally, here in Canada, Prime Minister Pierre Trudeau attempted to constitutionally entrench an equivalent to the Doctrine of Necessity in his first attempt to patriate the British North America Act through the little-known Constitutional Amendment Bill of 1978. This aborted constitution included a version of the Charter outlining the fundamental and civil rights of Canadian citizens, but its schedule would also have included as item 15 the War Measures Act, which would have thereby made any violation of rights in an emergency constitutional by definition, since anything contained in the constitution cannot be unconstitutional.[10] Entrenching something like the War Measures Act into the Constitution of Canada would have provided for something akin to the Doctrine of Necessity, and, unlike the Indian and Weimar models, would have given the Prime Minister and Cabinet all the extraordinary authority.

This doctrine has gone by other names. Thomas D’Arcy McGee, the Father of Canadian Confederation, poet, orator, and essayist who demonstrated a strong grasp on the fundamentals of political history, noted that President Lincoln had to take on extraordinary powers during the American Civil War in order to save the Union, though McGee called it “The Law of Self-Preservation.”  In his Notes on Federations, Past and Present, McGee argues that federal republics tend to collapse over questions of authority and sovereignty and that federal monarchies do not. McGee calls the Doctrine of Necessity the “only unwritten law of the Union” and argued that during the Civil War, “the law inherent in all governments – the law of self-preservation – has overruled all other laws.” Consequently, McGee continued: “The executive authority to save itself, and to save the Union, has been compelled to usurp those powers which the Constitution withheld, and to plead an inviolability from censure, pending the civil war, as extensive as most monarchs by ‘right divine’ ever pretended to.”[11]

Conclusion

The Premier of Newfoundland and Labrador shares a surname with a hero of Marvel fame, but Furey would not have invoked the Doctrine of Necessity to ward off an invasion or put down an insurrection. He would have taken advantage of it along the lines that Hollett proposed to save Newfoundlanders and Labradoreans from his own stupidity and poor judgement, since it was he who decided to trigger an election in winter during a pandemic in the first place.

Section 59 of the Canada Elections Act seems to provide a proper legal means for the sort of recourse that Hollett wanted Furey to take. It provides a template that all the provinces and territories would do well to follow, if they have not already. And Newfoundland & Labrador has not.

“Withdrawal of writ

59 (1) The Governor in Council may order the withdrawal of a writ for any electoral district for which the Chief Electoral Officer certifies that by reason of a flood, fire or other disaster it is impracticable to carry out the provisions of this Act.

Duties of Chief Electoral Officer

(2) If the Governor in Council orders the withdrawal of a writ, the Chief Electoral Officer shall publish a notice of the withdrawal in the Canada Gazette and, on being ordered by the Governor in Council to do so, shall, within three months after the date of publication of the notice, issue a new writ ordering an election to be held.

Polling day

(3) The day named in the new writ for polling day is determined by the Governor in Council, but may be no later than the 50th day after the day on which the new writ was issued.”[12]

One could make a valid legal argument that section 59(1) authorises the General General-in-Council to revoke all 338 writs of election, separately but simultaneously, thus effectively postponing the entire general election, in response to a “disaster” like an outbreak of a pandemic. The Governor General-in-Council would then authorise the Chief Electoral Officer under s.59(2) to issue 338 new writs within three months, thus, in effect, re-starting the general election campaign, with a maximum writ of 50 days under s.59(3). (Parliament also set the maximum duration of a normal general election at 50 days).

But Newfoundland and Labrador’s Elections Act does not contain a similar provision which specifically authorises the Lieutenant Governor-in-Council to revoke the writs of election and subsequently re-issue them in this manner. Section 62(1-3) contains a far more limited authority that pertains to withdrawing writs only with respect to appointing new returning officers; it says nothing of postponing writs due to disasters and re-starting the clock of the 35-day maximum writ period.

“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.”[13]

Since all returning officers refused to perform their duties out of fear of catching and spreading the virus, this provision would not have done anything to solve the problem. And section 87(1) only allows a poll to be delayed for a few days at most due to inclement weather or “another appropriate reason” – but this does not involve withdrawing the writ.[14]

When the Rump 50^th Assembly of Newfoundland & Labrador meets after this illegitimate election, it should undertake but two orders of business before being dissolved:

1. electing a speaker; and,
2. amending the Elections Act by inserting an equivalent of section 59 of the Canada Elections Act and repealing section 3.1 of the House of Assembly Act so that nothing like this can ever happen again.

Similar Posts: 

• Newfoundland and Labrador’s Omnishambles Election of 2021 Continues (February 2021)
• Electoral Disaster Strikes the Rock: Newfoundland and Labrador’s Crazy COVID Election (February 2021)
• 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)
• “There’s Nothing Strategic About This:” How Dwight Ball’s “New Government” Distorts the Caretaker Convention (August 2019)
• On the Doctrine of Necessity: The Division of Powers Does Not Apply During a Pandemic (May 2020)

Notes

^[1] Ed Hollett, “Leadership and Legitimacy,” The Bond Papers, 15 February 2021.

^[2] The National Post, “Newfoundland and Labrador Postpones Voting for Election in Polls Hit by COVID-19,” 11 February 2021.

^[3] Newfoundland and Labrador, Executive Council Office, The Conduct of the Public Service During an Election (St. John’s: Spring 2019), 4.

^[4] Newfoundland and Labrador, Executive Council Office, The Conduct of the Public Service During an Election (St. John’s: Spring 2019), 4.

^[5] The Newfoundland and Labrador Gazette, Extraordinary, Part II, Newfoundland and Labrador Regulation 33/19, “Proclamation Dissolving the 48^th General Assembly,” Order-in-Council 2019-126 (St. John’s: Queen’s Printer, 17 April 2019), 3-4; The Newfoundland and Labrador Gazette, Extraordinary, Part II, Newfoundland and Labrador Regulation 34/19, “Proclamation Providing for the Holding of a General Election,” Order-in-Council 2019-127 (St. John’s: Queen’s Printer, 17 April 2019), 5-9; The Newfoundland and Labrador Gazette, Part I, “A Proclamation,” (St. John’s: Queen’s Printer, 3 June 2019), 1-3. I’m not sure why these sets of proclamations appear in different parts of Newfoundland and Labrador’s Gazette. The proclamation summoning the first session does not correspond to an Order-in-Council.

^[6] Bryan A. Garner, editor, entry for “Functus officio” in Black’s Law Dictionary, Ninth Edition (Thompson-Reuters, 2009), 743.

^[7] Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848, at page 849.

^[8] Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018), 13-15.

^[9] Ibid., 14-15.

^[10] Canada, The Constitutional Amendment Bill: Text and Explanatory Notes (Ottawa: Queen’s Printer, June 1978), 1-77.

^[11] Thomas D’Arcy McGee, Notes on Federal Governments, Past and Present (Montreal: Dawson Brothers, 1865), 52.

^[12] Canada Elections Act S.C. 2000, c. 9, s.59(1-3).

^[13] Elections Act (Newfoundland and Labrador), SNL 1992, Chapter E-3.1., s. 62(1-3).

[14] Elections Act (Newfoundland and Labrador), SNL 1992, Chapter E-3.1., s. 87(1).