Why Justin Trudeau’s Snap Election in 2021 Does Not Break the Fixed-Date Elections Law


The Signs Pointing to a Snap Election, June to August 2021

Since at least mid-June, the media had treated an early election as a fait accompli, and politicians and political parties began acting as if the writ had already begun by early July. On 15 June, several MPs in the House of Commons delivered their “Farewell Speeches”, including Jack Harris (New Democratic Member for St. John’s East), Simon Marcil (Blocist Member for Mirabel), and Kate Young (Liberal Member for London West).[1]The very same day, Elections Canada announced that it could administer a general election during the pandemic without the statutory amendments contemplated by Parliament which ultimately died on the Order Paper on 15 August.[2]On 22 June, Prime Minister Trudeau denounced the 43rd Parliament for its “obstructionism and toxicity,” not the sort of thing that one would say in advance of a productive fall sitting.[3]

Justin Trudeau then shaved off his beard and cropped off his pandemic locks around Canada Day.[4] The rest of July then saw a plethora of campaign-style announcements and joint press conferences with willing mayors and premiers; Trudeau appeared alongside Naheed Nenshi, Mayor of Calgary, on 7 July to pledge “Build Back Better” funding to expand the city’s commuter rail,[5] and he held a joint press conference with John Horgan, the New Democratic Premier of British Columbia, the next day to announce funding for childcare.[6] In a marked contrast to the last snap federal election in 2008, the CBC supported the prospect of an early election so strongly that when Jagmeet Singh appeared on Power & Politics on 11 August to implore the Prime Minister to let the current 43rd Parliament meet for its fall sitting in September, the reporter tried to goad Singh three times to embracing the inevitable early election as an opportunity to convince voters that the New Democrats can best govern Canada at the end of this pandemic.[7]

Ever mindful of new political developments, Dr. Theresa Tam, Canada’s top public health official, declared a potential snap election during the onset of the fourth wave of the pandemic safe on 5 August.[8] (The previous week, she argued that Canada finds itself “in a slightly precarious moment” until 80% of Canadians are vaccinated).[9] The Liberals briefed the press on 12 August that the Prime Minister would kick off the election on Sunday[10], and Justin Trudeau, with wife and children in tow, dutifully paid an anti-climactic visit to Rideau Hall and Her Excellency Mary Simon to tender his constitutional advice to dissolve the 43rd Parliament for a general election on 15 August.[11] The Chief Electoral Officer, Stéphane Perrault, told the Procedure and House Affairs Committee in June that Elections Canada would prefer a longer writ closer to the 50-day maximum rather than the 36-day minimum, because of the logistical challenges of administering an election during a pandemic.[12] But Trudeau opted for the minimum of 36 days and thus a polling day of 20 September, perhaps because, as Paul Martin and Stephen Harper could both corroborate, the longer elections over the last 15 years have not benefited the incumbent.  

What Canada’s Fixed-Date Elections Do and Do Not

The Governor General’s authority to dissolve the Parliament of Canada flows from section 50 of the Constitution Act, 1867: “Every House of Commons shall continue for Five Years from the Day of Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.” Section 4(1) of the Constitution Act, 1982 replicates the aforementioned section 50, setting the maximum life of the federal parliament, and applies the same standard to the provincial legislatures as well: “No House of Commons and no legislative assembly shall continue for longer than five years from the dated fixed for the return of the writs of a general election of its members.”If a parliament had ever lasted its full five years, prior to the enactment of the fixed-date election law, it would have dissolved automatically pursuant to these provisions of the Constitution Acts, known as dissolution by efflux of time, and neither the Governor General nor the Prime Minister would have played any part in it.

Responsible Government means that the governor acts on the advice of the first minister and cabinet who can command the confidence of the elected assembly and thus carry out the Queen’s business and obtain supply and key pieces of legislation. 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.

The federal and provincial fixed-date election laws all layer onto these underlying premises. Section 56.1 of the Canada Elections Act contains the federal fixed-date elections law:

56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.

(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.

The non-derogation clause preserves the constitutional status quo combining the text of the Constitution Acts with the conventions of Responsible Government – that the Governor General dissolves parliament on the prime minister’s advice authority – so that the fixed-date elections law remains compliant with section 41(a) of the Constitution Act, 1982. The “office of the Governor General” includes all the constitutionally entrenched authorities of the Governor General, and thus the authority to dissolve parliament.[13]Therefore, only a constitutional amendment passed under section 41, the Unanimity Procedure, could lawfully abolish the Crown’s authority over the dissolution of parliament, and any statute which purported to do so would be unconstitutional and invalid. That is why the federal and all provincial fixed-date election laws contain provisions preserving the governors’, and thus the first ministers’, authority.

In the 2000s and 2010s, scholars like Andrew Heard and Peter H. Russell claimed that fixed-date election laws would also impose a minimum life of a parliament at four years and that a prime minister or premier could only advise an early election if the government had lost the confidence of the House of Commons or assembly.[14] They further interpreted that latter proviso to mean that the House of Commons or legislative assembly first had to withdraw its confidence from the government and based this argument on two false premises: one, that only the House of Commons or legislative assemblies can determine what constitutes a vote of confidence, and two, that these statutes created a “constitutional convention” that the prime minister or premier can only advise an early dissolution if the government has first lost a vote of confidence.

First, governments in Canada retain the discretion to decide whether they have lost the confidence of the elected assembly, a fact which allows governments to declare votes on key pieces of legislation or motions as matters of confidence. Only in jurisdictions which rely on constructive non-confidence, like Germany, does the elected assembly alone hold the authority to determine what constitutes a question of confidence, with the ministry having no discretion to say otherwise.

Second, the argument that these fixed-date election laws somehow created a constitutional convention binding prime ministers and premiers is false on its face given that prime ministers and premiers have advised early dissolution without first having lost a vote of confidence fully twelve times between 2008 and 2021, as shown in the chart above. This argument also contradicts the well-established constitutional conventions of, and the roles of the governor and first minister under, Responsible Government.  Since the Governor General only acts on the Prime Minister’s advice, logically limiting the advice that the Prime Minister can offer also necessarily fetters the authority of the Governor General. In reality, the true constitutional conventions at play are that the Governor General can only reject a Prime Ministers advice to dissolve parliament, and thus force the Prime Minister’s resignation, if and only if a viable alternative government exists within the same House of Commons, which would allow the Governor General to appoint a new Prime Minister who would take responsibility for the resignation or dismissal of his predecessor and command the confidence of the House of Commons.[15] This happens rarely but occurred most recently in British Columbia in 2017.

In short, the fixed-date election has succeeded only in reducing the maximum life of a parliament from five years to somewhere between four and five years. I cannot say definitively that section 56.1 of the Canada Elections Act has reduced the maximum life to four years because it schedules elections to the third Monday of every fourth October, not precisely four years after the previous election. For example, we held general elections in May 2011 and then next in October 2015.  Other than that, the fixed-date election law does absolutely nothing. They only encourage regular scheduled elections between one majority parliament and another, such as in October 2015 and again in October 2019. Fixed-date election laws cannot guarantee regular four-year intervals between elections in minority parliaments. They do not set a minimum life of a parliament, and they do not prevent the prime minister from obtaining a snap election for purely political reasons.

At the federal level, a trio of proclamations issued on the same day dissolves one parliament, issues writs of general, and summons the first session of the new parliament pro forma. The Governor General issues the first and third of these proclamations on the Prime Minister’s advice alone but issues the second on the advice of cabinet. These proclamations dissolved the 43rd Parliament and issued the writs of election on 15 August 2021, named 20 September 2021 as polling day, and scheduled the pro forma despatch of business for the 1st session of the 44th Parliament for 18 October 2021.[16] All these executive instruments are signed by the Governor General and counter-signed by Ministers, a tangible demonstration of the fact that the Governor General can only act on ministerial advice.

Holding Snap Elections and Scheduled Elections during a Pandemic

Since March 2020, five out of the ten provinces and one of the three territories have held general elections. The experience in four of the provinces and Yukon suggests that we can hold these elections safely but that we will rely more than usual on mail-in ballots. Canadians have by and large enthusiastically embraced vaccination, with around 73% of the total population having gotten at least one dose and some 65% fully vaccinated.

Saskatchewan’s fixed-date election law scheduled an election for October 2020, and Scott Moe’s Saskatchewan Party went from one majority to another majority. In contrast, the Premiers of New Brunswick, British Columbia, and Newfoundland & Labrador all led single-party minority governments and went for snap elections — and the gambit paid off for all three because they all won majorities. Yukon and Nova Scotia remain the two redoubts against fixed-date election laws in Canada, and the legislatures of both jurisdictions reached their constitutional maximum of 5 years in 2021. Yukon held an election in April; Nova Scotia, in August. In Yukon, the governing Liberals lost their majority but tied with the resurgent Yukon Party at 8 MLAs each, but the incumbent Liberals managed to remain in office by striking an 8-page confidence-and-supply agreement with the New Democrats and their 3 MLAs.[17] But on 17 August, Nova Scotia bucked the trend. The incumbent Liberals held a parliamentary majority beforehand but lost badly to the resurgent Progressive Conservatives, which have now won a majority of their own. This new stage of the pandemic, where mass-vaccination has put the end in our sights, might have made the electorate more willing to change governments because they feel safer and more open to risk. In other words, the incumbent governments in four provinces and Yukon secured their victories before mass-vaccination had kicked into high gear and limited this pandemic to the unvaccinated, which made voters much more risk-averse.

Of these jurisdictions, only Newfoundland and Labrador ran into serious problems administering its election. The Chief Electoral Officer blatantly exceeded his authority by unilaterally and extra-statutorily extending the writ period by several weeks beyond the maximum duration that the Election Act allows, cancelling all voting in person only two days before polling day, and switching entirely to mail-in ballots. Thankfully, this sort of unlawful and illegitimate election would not happen federally because Parliament has given the Chief Electoral Office of Canada the legitimate statutory authority to react to emergencies like pandemics. Section 59 of the Canada Elections Act now says:

“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]

Theoretically, 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 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 this remains an unlikely possibility.

But Chief Electoral Officer Stéphane Perrault cautioned on 4 August that Elections Canada expects that a large number of voters – potentially up to 5 millions – will opt for mail-in ballots due to the pandemic. Elections Canada will not begin to count any of these mail-in ballots until 21 September, the day after polling day, and might not finish counting them all for up to two to five days.[18] We therefore might not know the final outcome of the general election until around Sunday, 26 September. The uncertainties that could follow will only make the Caretaker Convention all the more important.

Conclusion: Snap Elections Done Despite Fixed-Date Election Laws and Their Results

Since 2008, we have seen twelve instances where prime ministers and premiers have secured early dissolution and snap elections without first having lost the confidence of the elected assembly in a formal vote in the chamber – and fully seven such instances in the last two years alone. I have assigned three possible outcomes: win, lose, or draw. A win means either going from a minority to a majority or from one majority to another, and a loss means losing power altogether, whether the incumbent started with a minority or a majority.

Assigning a draw requires more judgement, but I would argue that indicates a kind of stalemate of one minority to another minority: the incumbent government does not lose power, but neither does it gain the majority that all incumbent prime ministers and premiers seek. So far, Harper’s gambit in 2008 has produced the only draw in the fixed-date elections era, but Pearson’s snap election in 1965 two years after the previous election would likewise have fallen under this category, since his Liberals went from one plurality to one slightly larger plurality but short of a majority. I suppose that I would count, under this typology, going from a majority to a plurality as a draw as well, but closer to the loss end of the spectrum. So far, no such examples have occurred after a snap election, but the scheduled federal general election of 2019 produced such an outcome. 

First Ministers Who Secured Snap Elections Without First Having Lost a VoteResult for the Incumbent Government
2008: Harper (Canada) Minority parliament and single-party minority governmentDraw: the Conservatives expanded their plurality but failed to secure a majority
2014: Marois (Quebec) Minority legislature and single-party minority governmentLoss: The incumbent PQ lost and the rival Liberals won a majority
2014: Wynne (Ontario) Minority legislature and single-party minority governmentWin: The incumbent Liberals went from a plurality to a majority
2015: Prentice (Alberta) Majority ParliamentLoss: The rival New Democrats won a majority
2015: MacLauchlan (PEI) Majority ParliamentWin: The Liberals expanded their majority
2019: MacLauchlan (PEI) Majority ParliamentLoss: The Liberals came in third in a minority parliament, and the Progressive Conservatives took office
2019: Ball (Newfoundland & Labrador) Majority ParliamentLoss: The Liberals went from secure majority to tenuous plurality and probably guaranteed another early election
2019: Pallister (Manitoba) Majority ParliamentWin: The Conservatives win a 2nd parliamentary majority.
2020: Higgs (New Brunswick) Minority legislature and single-party minority governmentWin: The Conservatives secured a parliamentary majority
2020: Horgan (British Columbia) Minority legislature and single-party minority governmentWin: The New Democrats secured a parliamentary majority
2021: Furey (Newfoundland & Labrador) Minority legislature and single-party minority governmentWin: The Liberals won a bare majority.
2021: Trudeau (Canada) Minority parliament and single-party minority governmentWe shall see in late September.

These eleven completed snap elections indicate that the odds still slightly favour the victory of the incumbent government – but not without great risk.

  • Draw: 1
  • Loss: 4
  • Win: 6.

Furthermore, 3 of the 4 losses came when the incumbent premier already possessed a parliamentary majority, and only 2 out of the 6 wins occurred when the incumbent went into the election with a majority. These trends suggest that voters show more willingness to punish incumbent premiers who display more obvious and less plausibly deniable naked ambition; after all, when they call a snap election while already commanding a majority, they cannot fall back on blaming the opposition for obstructing their legislative programs. Voters seem more willing to accept snap elections when the incumbent government can only muster a plurality of seats and could fall on a vote at any time, given that 4 out of 6 of these victories involve going from a minority to a majority government. The idea of allowing the voters to evaluate the performance of a single-minority government seems to resonate.

Alpheus Todd, our most notable Librarian of the Parliament of Canada, outlined four situations where the Prime Minister could, and even should, advise a dissolution of parliament and “an appeal to the constituent body” – the Canadian people.[19]Validating the Governor’s dismissal of one Prime Minister and appointment of another, or breaking deadlock between the two houses of parliament do not apply here. But the third and fourth reasons certainly could. A Prime Minister could seek an early dissolution to give voters an opportunity to consider “some question of public policy upon which ministers of the Crown and the House of Commons are at issue”[20], or if “the House of Commons does not correctly represent the opinions and wishes of the nation.”[21]Prime Minister Trudeau appealed to these reasons in the speech that he delivered outside Rideau Hall on 15 August, declaring, “You deserve a say.”[22] He continued:

“In this important moment – maybe the most important since 1945 and certainly in our lifetimes – who thinks Canadians shouldn’t have a say? After making it through 17 months of nothing like we’ve ever experienced, Canadians deserve to choose what the next 17 months, the next 17 years, and beyond, look like. And I think we have the right plan, the right team, and the proven leadership to meet that moment. So to the other parties, please explain why you don’t think Canadians should get a choice, why you don’t think that this is a pivotal moment.”

In response to the first question from journalists (at around the 15-minute mark), Trudeau noted that the pandemic has since March 2020 consumed all aspects of our lives and forced governments to respond in ways that no one could have predicted when Canadians last went to the polls 18 months ago.

“In the last election, nobody was talking about what we might do in a pandemic. So the government and indeed parliament needs an opportunity to get a mandate from Canadians, to hear from Canadians how to end this pandemic, how to build back better in really meaningful ways. As Canadians know, this is a moment where we’re gonna be taking decisions that will last not just for the coming months but for the coming decades, and Canadians deserve their say. And that’s exactly what we’re going to give them.”[23]

We shall see next month what Canadians have to say.

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Notes


[1]House of Commons Debates, volume 150, no. 118, 43rd Parliament, 2nd Session, 15 June 2021.

[2]Rachel Aiello, “Elections Canada Says It’s Ready for a COVID-19 Campaign, Law Changes Not Necessary,” CTV News, 15 June 2021.

[3]Stephanie Taylor, “Parliament Is a Place of ‘Obstructionism and Toxicity,’ Trudeau Says, Adding to Speculation of Fall Election,” 22 June 2021.

[4]Gerry Nicholls, “The Politics of Trudeau’s Shave,” The Hill Times, 7 July 2021. This is rather like how Pierre Trudeau shaved off his beard in September 1979, perhaps as a prelude to when he agreed to lead the Liberals into the election which became necessary after the House of Commons voted down the Clark government’s budget in December 1979. The famous Marshall McLuhan wrote Pierre Trudeau in August 1979 and argued that his beard “cooled his image by several degrees” and reflected a subconscious desire to keep a low profile in opposition; P. Trudeau later reflected that shaving off his beard the following month fuelled speculation that he was hankering for a political comeback. The CBC has always devoted a great deal of attention and reporting to the coiffeur of the Trudeaus, it seems. CTV News, Yukon Liberals Set to Be Sworn In As Party Aims to Form Minority Government,” 23 April 2021; CBC Archives, It’s Cool Not to Shave, Says Marshall McLuhan,” 17 November 1980; CBC Archives, Hair Apparent: How Justin Trudeau’s Beard Makes Him Look Like Dad,” 7 January 2020.

[5]Michael Franklin, “Trudeau Says Calgary’s Green Line LRT Construction to Begin in the Fall, Nenshi Not So Sure,”CTV News, 7 July 2021.

[6]CBC News, Federal, B.C. Governments Reach Deal on Child-Care Funding,” 8 July 2021.

[7]Jagmeet Singh, interview on Power and Politics, 11 August 2021.

[8]Richard Raycraft, “Federal Election Voting Safe Despite Threat of Fourth Wave, Tam Says,” CBC News, 5 August 2021.

[9]Darren Major, “Canada Could Be Seeing the Start of a Variant-Driven 4th Wave, Chief Health Officer Warns,” CBC News, 30 July 2021.

[10]Catharine Tunney, “Canadians Can Expect a Federal Election on Sept 20: Sources,” CBC News, 12 August 2021.

[11]Catharine Tunney & Christian Paas-Lang, “Canada Is Headed for a Federal Election on Sept. 20,” CBC News, 15 August 2021.

[12]Abbas Rana, “Longer Writ Period ‘Preferred’ By Elections Canada Chief Could Hurt Liberal Prospects, Pollsters Say,The Hill Times, 19 July 2021.

[13]Warren J. Newman, “Of Dissolution, Prorogation, and Constitutional Law, Principle and Convention: Maintaining Fundamental Distinctions During a Parliamentary Crisis,” National Journal of Constitutional Law 27 (2009): 219, 222, 229.

[14]Andrew Heard, “Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates,” Constitution forum constitutionnel 19, no. 1 (2010): 21-32; Andrew Heard, “Constitutional Conventions: The Heart of the Living Constitution,” Journal of Parliamentary and Political Law 6, no. 2 (August 2012): 319-338; Peter H. Russell, Two Cheers for Minority Government: The Evolution of Canadian Parliamentary Democracy (Toronto: Emond Montgomery Publications Limited, 2008), 139. Russell wrote this book before Harper’s early dissolution and argued, “Prime Minister Harper seems inclined to abide by what should now be regarded as a convention of the constitution and not request dissolution merely for partisan advantage.”

[15]Sir John George Bourinot, Parliamentary Procedure and Practice. 1st ed. (Montreal: Dawson Brothers Publishing, 1884): 58; Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102; Alpheus Todd, Parliamentary Government in the British Colonies2nd Edition (London: Longmans, Green, and Co., 1894), 760-761; Robert Macgregor Dawson, “The Constitutional Question,” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.

[16]Canada Gazette,Part II, Extra, Volume 155, No. 6 (Ottawa: Her Majesty the Queen in Right of Canada, 16 August 2021), 1-6.

[17]CBC News, Yukon Liberals, Reduced to Minority, Embrace the NDP,” 28 April 2021.

[18]Joan Bryden, “Final Outcome of a Pandemic Election Could Take a Few Days: Chief Electoral Officer,CBC News, 4 August 2021.

[19]Alpheus Todd, On Parliamentary Government in England: Its Origin, Development, and Practical Operation, 2nd ed., vol 2, edited by Arthur Hamlyn Todd(London: Longman’s, Green, and Co., 1889), 503.

[20]Todd 1889,505.

[21]Ibid., 505-506.

[22]Justin Trudeau, “You Deserve a Say,” speech delivered to the press at Rideau Hall, Liberal Party of Canada, 15 August 2021.

[23]Justin Trudeau, remarks to journalists,CPAC, 15 August 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. Bookmark the permalink.

3 Responses to Why Justin Trudeau’s Snap Election in 2021 Does Not Break the Fixed-Date Elections Law

  1. Donald F Bur says:

    Excellent article.

    Andrew Coyne gets a headline “There’s a law against snap elections – and the governor-general is supposed to enforce it”, and some of the article is based on a false understanding of how our constitution works.

    Articles like this need to be more public, so that we all have the same common understanding of what our constitution is and how it operates. If the basic rules about how our constitution works becomes too divorced from the people’s understanding of it, it will cease to be the rule.

    Like

  2. PierreB says:

    Very much enjoyed this post, as I do all of them, explaining complex (yet vital) material in a clear and objective way. Thank you.

    Like

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