Putting the Personal above the Factual: Errol Mendes on Early Dissolution and Fixed-Date Election Laws in 2008 vs in 2021


Introduction

I have chronicled several examples of scholarly inconsistency between how some academics cover and write about Harper versus Trudeau, The four most notable examples come down to the following: tactical prorogation, contempt of parliament, the caretaker convention and the appointment of Supreme Court Justices just before the writ, and, finally, on calling snap elections when the House of Commons has not first withdrawn its confidence from the government. I documented last year how the same scholars who launched incessant vituperations over Harper’s tactical prorogations in 2008 and 2009 remained silent or became far more measured and reasonable in response to Trudeau’s tactical prorogation in 2020. Some of the disparity in the coverage of Trudeau’s prorogation versus Harper’s and the House of Commons declaring the Trudeau government in contempt of parliament in 2021 versus the House of Commons declaring the Harper government in contempt of parliament in 2011 undoubtedly does stem from our collective fatigue over the pandemic. I myself have largely tuned out of much of the news, and I quit Twitter around 12 months ago. This calculus might even factor into some of the coverage of the upcoming early election in 2021 versus that of 2008. However, this factor most certainly does not apply to the control group in our sample: the hyperventilating over the Caretaker Convention and the appointment of justices to the Supreme Court in 2015 versus in 2019 occurred half a year before the pandemic disrupted all our lives.

With an early dissolution and general election bearing down on us in 2021, I find revisiting the similar early election of 2008 and comparing the press coverage then and now instructive and intriguing. Here I will use one particular and overt about-face as an example to illustrate the perils when partisan or ideological thinking replaces a neutral and reasonable examination of the facts, in the form of Errol Mendes, Professor of Law at the University of Ottawa.


Comparing the Snap Elections of 2008 and 2019

In August 2008, Mendes submitted a column to the Edmonton Journal entitled “Harper’s Snap Election Would Violate ‘Principle’ He Fought For; It Will Take Some Twisted Rhetoric to Justify Breaking With Fixed Election Date” in which he heaped scorn on Harper, concluding, “If not the rule of law, a most basic sense of political morality should make the prime minister think twice about breaking his own law.”[1] Mendes introduced the spurious and illogical argument that “Even if the fixed elections law does not constrain the Governor General’s discretion to grant dissolution of Parliament, one could argue that the law constrains the prime minister’s power to ask for one until October 2009,” which later became the crutch propping up all manner of ill-founded claims in the 2010s.

As I have argued since at least 2013, this clever argument repudiates the principles and practice of Responsible Government, wherein Ministers of the Crown take responsibility for all acts of the Crown, which means that the Governors can act only on ministerial advice and not on their own in the absence of any ministerial advice. Logically, since the Governor General can only dissolve parliament on the advice of the prime minister (rejecting advice to dissolve parliament does not mean that the Governor General dissolves parliament unilaterally), then limiting the prime minister’s capacity to advise the Governor General to dissolve parliament would fetter the Governor General’s authority to dissolve parliament and thus contradict the non-derogation clause in the fixed-date elections law, “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.” Mendes, Peter Russell, and Andrew Heard all argued in this era, in effect, that fixed-date election laws set a minimum life of a parliament at four years – which is the exact opposite of what Canada’s fixed-date election laws have done. (They got a lot of things precisely backwards in the 2000s and 2010s). In reality, fixed-date election laws reduced the maximum life of a parliament from 5 years to somewhere between 4 and 5 years. Only constructive non-confidence and confirmation voting, as under the German system, would encourage a minimum life of a parliament, while Norway goes so far as to ban early dissolution of the Storting under any circumstances, which requires intra-parliamentary transfers of power without an election.

Of all the predictions that Mendes made in 2008, only one turned out to be true, and not in the way that Mendes would have liked. He believed that “Some aggrieved citizen may even consider seeking court action to stop this legally dubious move.” In 2009, Duff Conacher of Democracy Watch did indeed launch a retroactive and futile and frivolous challenge in the Federal Court of Canada, claiming that Harper violated the fixed-date election provision in section 56.1 of the Canada Elections Act when he advised Governor General Jean to dissolve the 39th Parliament. The Federal Court rejected all Conacher’s arguments, and the Federal Court of Appeal sustained the lower court’s ruling in 2011.[2] Since then, the Court of Queen’s Bench in Alberta has affirmed the reasoning in the two Conachers with respect to Alberta’s early election in 2015.[3]

Someone might say, “But thirteen years have passed! Times change!”, as if that the passage of time alone accounts for the shift in Mendes’s tone. But this sort of blithe, disingenuous dismissal glosses over the series of remarkable similarities between August 2008 and August 2021 and ignores the information available in 2008 which allowed some journalists, like L. Ian MacDonald and Chantal Hebert, to draw the correct conclusion at the time.[4] And if anything, Harper faced more overt and clear opposition in 2008 than Trudeau faces in 2021, which ironically would, from the rationale that Mendes himself employed in 2008, make Trudeau’s upcoming early dissolution less justifiable than Harper’s. In 2008 and 2021, the previous election had occurred two to two and a half years ago, Harper and Trudeau both led single-party minority governments and obviously sought or seek to win a parliamentary majority, and the fixed-date election law exists.

In 2021, the pandemic paradoxically generates both rationales in favour of an early election – so much has changed since October 2019, and the electorate should have a say on how the Government of Canada proceeds with the aftermath of the pandemic – and against an early election: namely, that the latest variant of the virus could spread more rapidly during an election campaign, which necessarily involves numerous social and communal events. An election would therefore make the pandemic worse. And the Trudeau government, by its own admission, wants to increase the vaccination rate by mandating that all federal Crown servants and employees in the private sectors regulated by the federal order of government be vaccinated, which suggests that it still regards the pandemic as a threat.

By August 2008, Harper’s Conservatives had limped along as a single-party minority government for two and half years (since February 2006), with the previous election having taken place on 23 January 2006; the fixed-date election law at that time had scheduled the next election for October 2009, only one year later than when the snap election occurred. In August 2021, the previous election occurred two years ago, but the fixed-date election law has scheduled the next general election for two years from now, in October 2023.

If we factor the age of a parliament into the equation of snap elections, then the older the parliament, the more justified a snap election becomes – and that calculus favours 2008 (one year left) over 2021 (two years left).

In late July 2021, Jagmeet Singh, leader of the New Democrats, went as far as to send a fatuous and presumptuous letter to Her Excellency the Governor General, Mary Simon, imploring her to reject Prime Minister Trudeau’s constitutional advice to dissolve parliament on the grounds that the House of Commons had not withdrawn its confidence from the Trudeau government. Singh wrote:

In the present sitting of the House of Commons, the government has won every confidence vote they have put to the House — including on the speech from the throne and on the budget.

Additionally, just two months ago the House approved by a margin of 327-1 a motion stating that ‘holding an election during a pandemic would be irresponsible.’

Should he attempt to request dissolution of Parliament, we think it is important to reiterate that, as you are aware, one does not need to be granted in the absence of a loss of confidence in the House. Thank you for your consideration.[5]

But in 2008, the Harper government was surviving crucial votes in the House of Commons only because of the Liberals’ policy of abstention and agnosticism, which masked the deep divisions tearing that party apart at the time. In August 2008, Stephane Dion, then leader of the Liberals and the Official Opposition, overtly proclaimed that he would table a motion of non-confidence in the Harper government in the upcoming fall sitting, and Gilles Duceppe, leader of the Bloc, had likewise pledged to withdraw confidence from the Harper government as soon as the House of Commons reconvened on 15 September 2008.[6] Jack Layton, then leader of the New Democrats, accused Harper of using a series of bilateral meetings with the opposition leaders as a “charade” to conceal his desire to call a snap election – which, to be fair, was true – and added that he looked forward to the upcoming campaign.[7] The mathematics of the 39th Parliament meant that the Conservatives needed the support of at least two of the three opposition parties or most things, or at least the support of one and the abstention of another, to survive votes of confidence, so the views of Dion and Duceppe alone suggested imminent defeat. By the admission of the leaders of the opposition parties, Harper held a snap election on his own initiative about 4 to 6 weeks earlier than they would have forced an early election by voting down the government.  

If we take the attitude of the leaders of the opposition into account in considering the justifiability and rationale of snap elections, then 2008 also outweighs 2021 as more readily justifiable. 

By August 2021, Mendes lent some background and quotes to the Canadian Press rather than writing a column like in August 2008.

“Mendes says the prime minister has the right to ask the Governor General to call an early election under the Constitution and the fixed-election law brought in by the Harper government did not change that.”

Though scholars disagree as to whether Byng’s decision was the right one, Mendes says the crisis will likely be brought to the attention of Simon and she will basically “learn from that situation,” and accept the anticipated request from Trudeau to call an early election.[8]

Do you see what Mendes did there? Even in his statement to this reporter, thirteen years later, he still clings to this implicit criticism of Harper – because the “the fixed-date election law brought in by the Harper government did not change that.” So even when Trudeau calls a snap election in 2021, the blame lies with Harper, because section 56.1 of the Canada Elections Act,which contains the fixed-date election law and the bill for which the Harper government introduced 14 years ago, did not go far enough! It’s still Harper’s fault, you see. In reality, the Canadian model of fixed-date election laws, which includes by necessity a non-derogation clause preserving the authority of the Governor General or Lieutenant Governor to dissolve the legislature specifically so that they do not violate section 41(a) of the Constitution Act, 1982, originated in British Columbia in 2001, spread to all provinces except Nova Scotia and all the territories except Yukon by the end of the 2000s, and was supported by premiers of all three major parties within the provinces. But it’s all still Harper’s fault! This is simply not a credible argument, which even Mendes on some level must know. 

Conclusion

Both practical experience and the courts have rejected Mendes’s arguments. They have forced him to change tact, but what my analysis here shows is that even in 2008, a neutral observer could have landed on the correct answer with the information available at that time and by invoking a series of reasonable measures like the age of the parliament, the number of months remaining until the scheduled election under the fixed-date election law, the statements of the leaders of the opposition parties, the overall dynamics in the House of Commons, and the overall state of the country and whether significant political questions had arisen since the last election on which Canadian voters should have their say. Many did. Even I derived the correct answer a decade ago, in August 2011, as a mere undergraduate, which you can verify in the list of similar posts below.

The Prime Minister can always advise the Governor General to dissolve parliament without first having lost the confidence of the House of Commons. And if no viable alternative government exists within the current House of Commons, the Governor General must accede to the Prime Minister’s constitutional advice and precipitate a snap election. This applies equally to 2008 and to 2021, and neither Harper nor Trudeau have done anything wrong here.

But ironically, by looking at factual measures of the 39th Parliament in 2008 and the 43rdParliament in 2021, it would, on balance, be easier to justify a snap election in 2008 than in 2021 by the criteria and reasoning that Mendes implies – yet he came to the opposite, and incorrect, conclusions. Scholars can, of course, hold their own personal or ideological preferences for and against the incumbent prime minister and government, but they should guard against privileging ideological loathing or a personal animus against the incumbent prime minister over and above the facts of the matter at hand, or else their passions will lead them astray. Worse still, as I document in “Peter H. Russell Now Agrees with Me” and in “Justin Trudeau Has Made Prorogation Great Again,” this misdirected passions wasted an entire decade, the 2010s, and held back the scholarship of Responsible Government in Canada unnecessarily.

Similar Posts:

Endnotes


[1]Errol Mendes, “Harper’s Snap Election Call Would Violate ‘Principle’ He Fought For; It Will Take Some Twisted Rhetoric to Justify Breaking With Fixed Election Date,” Edmonton Journal, 29 August 2008, A16.  

[2]Conacher v. Canada (Prime Minister), 2009 FC 920; Conacher v Canada 2011 FCA 131.

[3]Engel v Alberta (Executive Council), 2019 ABQB 490

[4]L. Ian MacDonald, “Harper Has An Out; A Clause in the Fixed-Date Election Law Allows the Prime Minister to Call An Election Whenever He Chooses,” Montreal Gazette, 18 August 2008, A17; Denis Smith, “Is The Fix in on Fixed Election Law?” The Globe and Mail, 21 August 2008, A17; Juliet O’Neill, “PM Not Bound By Election Date Law; Harper May Push for New Mandate,” The Windsor Star, 21 August 2008, A10; Chantal Hebert, “PM Will Get His Wish,” Telegraph-Journal, 28 August 2008, A7.

[5]Stephanie Levitz, “Justin Trudeau Blasts Jagmeet Singh’s Request That the Governor General Not Agree to An Election,” The Toronto Star, 28 July 2021.

[6]Les Whittington, “Bring On Fall Elections, Liberals Say; Party Increasingly Confident It’s in Good Position As Tories Deal With Scandals, Stagnant Popularity,” The Toronto Star, 2 August 2008, A17; Allan Woods, “PM to Meet with Duceppe, Layton As Vote Call Looms; Launch of Election Campaign Expected As Early As Next Week, Pre-empting Three By-Elections,” The Toronto Star, 29 August 2008, A19.

[7]Allan Woods, “PM to Meet with Duceppe, Layton As Vote Call Looms; Launch of Election Campaign Expected As Early As Next Week, Pre-empting Three By-Elections,” The Toronto Star, 29 August 2008, A19.

[8]The Canadian Press, “Governor General Will Likely Agree to a Trudeau Request to Call Snap Election: Expert,” 28 July 2021.

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, Reform. Bookmark the permalink.

1 Response to Putting the Personal above the Factual: Errol Mendes on Early Dissolution and Fixed-Date Election Laws in 2008 vs in 2021

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