An Unlawfully Long Writ Rewards the Incumbent and Will Be Allowed to Stand


Elections Newfoundland & Labrador announced the results of the ill-begotten election on Saturday at 1030 Eastern Daylight Time. The Liberals have won a bare majority of 22 out of 40 seats in the House of Assembly, where the Furey government will face a decapitated and floundering opposition. Both the leaders of the Progressive Conservative and New Democratic Parties, Ches Crosbie and Alison Coffin, lost their seats.[1] The rumps of these parliamentary parties will have to select new leaders from their remaining MHAs.

Although the province’s Elections Act clearly states that the writ can last for a minimum of 28 and maximum of 35 clear days (in this case, 15 January to 19 February 2021), and even though the writs issued on 15 January named 13 February 2021 as polling day, and even though the Elections Act provides no authority whatsoever for the Chief Electoral Officer to increase the duration of the writ unilaterally, the Liberals’ parliamentary majority has, for political and practical purposes, definitively closed the saga of Newfoundland and Labrador’s unlawful and illegitimate election that dragged on for over one month too long. No legal remedy will overturn the results of the general election as a whole, and this new House of Assembly will be allowed to carry on for its maximum life until October or November 2025, unless the Premier advises the Lieutenant Governor to dissolve it earlier.

In any case, the only true remedy would be to dissolve this new House of Assembly early and hold another general election. But this will not happen, and no one aside from a few of us who write and read Parliamentum will care. It will not matter that less than half of Newfoundlanders and Labradoreans voted in the election. Preliminary estimates peg voter turnout at 48% and at a mere 22% in the Torngat Mountains in Labrador.[2] The “unprecedented number of spoiled votes” will likewise not matter.[3] None of it matters. A majority of Newfoundlanders and Labradoreans – even those who did not vote for the victorious Liberals – will acquiesce to this outcome, and the circumstances surrounding this election will fade into the obscurity of a second Bowden-Skinner collaboration in the Journal of Parliamentary and Political Law, eventually becoming a fascinating historical footnote but nothing more.

Under section 3 of the House of Assembly Act, Newfoundland and Labrador will have to hold its next general election no later than either the second Tuesday in October 2025 or last Monday in November 2025. This disjunctive proposition depends upon whether the next scheduled provincial general election would overlap with the next scheduled federal general election. If a federal general election were scheduled for October 2025, then the Premier of Newfoundland and Labrador would have to announce by 1 April 2025 that the provincial general election would be delayed until November.

Duration of House of Assembly

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

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

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

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

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

Incidentally, all this means that Newfoundland and Labrador’s newest House of Assembly can live up to a four and a half years rather than four.

But Newfoundland and Labrador, like Ontario and Prince Edward Island, seems to be settling on holding elections in the first half of the year instead. The Furey government might table legislation to make that trend of the last two elections in 2019 and 2021 official. I also hope that the Furey government tables legislation to repeal section 3.1 of the House of Assembly Act outright and another bill to amend the Elections Act in line with section 59 of the Canada Elections Act, which provides the Governor-in-Council  the authority to delay the writs of election in ridings affected by a “disaster” (including a pandemic) for up to three months; in effect, this provision would allow the entire general election to be delayed by cancelling all writs and issuing new ones within three months.[5] The Furey government might even try to table legislation declaring the previous election valid, notwithstanding that section 58(1) of the Elections Act imposes a maximum writ of 35 clear days and that nothing in the statute authorises the Chief Electoral Officer to do what he did.

Finally, on a broader note, we should bear in mind that of the four provincial general elections held thus far since March 2020, all four have now yielded parliamentary majorities for the incumbent government’s party. In fact, in three of these cases – in British Columbia, New Brunswick, and now, in Newfoundland and Labrador, a single-party minority government managed to increase from a parliamentary plurality in the last legislature to a parliamentary majority in the next. The Saskatchewan Party went from one majority to another. (Yukon finds itself in the midst of a general territorial election with polling day scheduled for 12 April, so it remains to be seen whether Yukon will conform with the pattern, or whether it will buck the trend.) We can conclude that the pandemic has favoured, and even strengthened, incumbent governments. Prime Minister Trudeau might take that those four precedents into account in 2021 as well, which could affect the timing of Newfoundland and Labrador’s next scheduled election.

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Notes


[1]     Malone Mullin, “Liberals Claim Slim Majority in Newfoundland and Labrador, as Voters Tap Furey to Lead,CBC News, 27 March 2021.

[2]     Sarah Smellie, “Newfoundland and Labrador Liberals Win Narrow Majority in Pandemic-Delayed Election,” The Canadian Press, 27 March 2021.

[3]     Sarah Smellie, “NDP Says ‘Unprecedented’ Number of Spoiled Votes in N.L. Election, Voters Speak Out,The Canadian Press, 26 March 2021.

[4]     House of Assembly Act (Newfoundland and Labrador), RSNL 1990, Chapter H-10, s. 3.

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

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. 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, Reform. Bookmark the permalink.

2 Responses to An Unlawfully Long Writ Rewards the Incumbent and Will Be Allowed to Stand

  1. Mike Donison says:

    The notwithstanding clause cannot be used against the section 3 Democratic Rights- only the Charter Rights in section 2 and sections 7-15.

    Like

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