Introduction 

Democracy Watch touts itself as “the most effective and successful national citizen advocacy group in Canada at winning systemic changes to key laws since […] 1993.”[1] But it has certainly not met with success in its quixotic crusade against the true nature of Canada’s fixed-date election laws. On the contrary, Democracy Watch, the dissolution-chasing advocacy group undaunted by a series of judicial defeats, has now suffered its sixth rout since 2009 and has come one step closer to proving the colloquial definition of insanity as trying the same thing over and over and expecting different results. Justice Russel W. Zinn’s ruling in Democracy Watch et al. v Prime Minister of Canada et al. follows closely on the heels of Democracy Watch v New Brunswick (the Attorney General), where Justice E. Thomas Christie delivered Democracy Watch another embarrassing defeat on 29 October 2021.[2] The Federal Court of Canada has upheld his own previous Conacher ruling from 2009, deferred necessarily to the decision of the Federal Court of Appeal in 2010 on the same Conacher case, and sustained the two Engels rulings by Alberta’s Court of Queen’s Bench in 2019 and Court of Appeal in 2020, as well as New Brunswick’s Court of Queen’s Bench in 2021.[3] Canadian courts have now, as of February 2022, upheld the correct interpretation of fixed-date election laws for the sixth time.

The Ruling Itself 

Democracy Watch has modified its strategy to some extent in light of its five previous failures. Back in 2009, Democracy Watch argued that Prime Minister Harper violated the fixed-date election law and applied for declaratory relief in the form of four declarations:

a. that the Prime Minister’s actions contravened section 56.1;

b. that the holding of the election on October 14, 2008 infringed the right of all citizens of Canada to participate in fair elections pursuant to section 3 of the Canadian Charter of Rights and Freedoms;

c. that a constitutional convention exists that prohibits a prime minister from advising the Governor General to dissolve Parliament except in accordance with section 56.1 of the Canada Elections Act; and

d. an order that costs be awarded to the applicants or, that no costs be awarded if the application is dismissed.[4]

In 2009, Duff Conacher argued, rather bizarrely, that Prime Minister Harper had unilaterally created a constitutional convention that the Prime Minister could only advise the Governor General to dissolve parliament early if the House of Commons had first withdrawn its confidence from the ministry, even though Harper himself opted for a snap election and proved by his actions that he did not recognise the existence of such a proposed constitutional convention.[5] Conacher relied mainly on Andrew Heard’s scholarship in his factum.

But in 2022, Democracy Watch limited itself to only one of those four categories of declaratory relief:

An order and declaration that the Prime Minister and Committee of the Privy Council violated subsection 56.1(2) of the Canada Elections Act (S.C. 2000, c. 9) by advising, in Order in Council 2021-0892 on August 15, 2021, the Governor General of Canada to issue writs of election.[6]

The Federal Court rejected Democracy Watch’s application. But even if the court had accepted this declaration, its ruling would have changed nothing with respect to the 44^th general election and would not have overturned the results of the election; at most, such a ruling could only hope to affect or somehow invalidate by implication future snap elections. Justice Zinn noted as much:

With respect to mootness, I agree with the Respondents that there is no live controversy between the parties vis-à-vis the 2021 election; however, in my view, the remedy the Applicants seek may have some impact on future elections. Indeed, from the very manner in which the application is drawn, it is clear that the Applicants are looking forward to the next election.[7]

Democracy Watch apparently still clings to the demonstrably false notion that section 56.1 “prohibits [the Prime Minister] from calling an election before the fixed election date set […] unless, under the unwritten constitutional ‘confidence convention’ that underlies section 56.1, a vote of non-confidence occurs in Parliament before that fixed date.”[8] However, Democracy Watch has dropped point c from its argument from 2009 – “that a constitutional convention exists that prohibits a prime minister from advising the Governor General to dissolve Parliament except in accordance with section 56.1 of the Canada Elections Act – from its request for declaratory relief because the Federal Court and Federal Court of Appeal have already rejected the premise. Democracy Watch ignores the 11 previous snap elections between 2008 and 2021, inclusive, and insists that because the three previous federal elections in 2011, 2015, and 2019 conformed to its demonstrably false interpretation of Canadian fixed-date election laws that therefore the convention which they first posited in 2009 must now surely exist in 2022. Democracy Watch concludes that the Federal Court should now therefore “come to a different conclusion that it did in its 2009 precedent.”[9] Justice Zinn disagreed: “it is far from established that there is any new fixed election convention as asserted.”[10] Whilst asserting a non-existent contrived convention that the fixed-date election law limits the constitutional advice that the Prime Minister can tender to the Governor General, Democracy Watch ignores an extant constitutional convention that the Governor General must carry out a Prime Minister’s constitutional advice apart from exceptional circumstances where rejecting it also forces the Prime Minister to resign. This scenario played out most recently in British Columbia in 2017, as I chronicled at the time.

Anticipating its own irritating irrelevance, Democracy Watch desperately insists that its “application has a chance of success” on the following grounds:

(i) it raises serious legal issues for review;

(ii) the legal issues are not moot, and;

(iii) the Applicants should be granted private and public interest standing.[11]

Democracy Watch also contended: “a different factual and legal matrix presents itself to this Court for the review of the 2021 snap-election call, which gives rise to live legal issues meriting a full hearing with the benefit of evidence.”[12] In reality, the courts in five rulings between 2009 and 2021 have unambiguously rejected identical arguments, which makes this latest case utterly moot and bordering on the vexatious. Furthermore, the circumstances surrounding Harper’s snap election in 2008 and Trudeau’s snap election in 2021 are virtually identical. Justice Zinn also concluded: “the Applicants’ claim in this case are not novel. They are effectively the same claims as those in Conacher [from 2009].”[13]

In one last pathetic gambit, Democracy Watch argued that the Federal Court of Canada should defer to and consider persuasive a foreign ruling, the United Kingdom Supreme Court’s decision in R (Miller) v The Prime Minister [2019] UKSC 41, which invalided Boris Johnson’s constitutional advice to prorogue the Brexit Parliament in 2019. Justice Zinn sarcastically remarked, “It is far from clear what relevance this judgement has to the facts at issue in this application.”[14] But Democracy Watch lacked the courage to follow through this trolling aside to its logical conclusion. The United Kingdom Supreme Court rule that Prime Minister Boris Johnson had tendered unconstitutional advice to Her Majesty the Queen but invalidated only Johnson’s advice itself and the executive instrument promulgating prorogation whilst taking care not to criticism Her Majesty the Queen. In effect, the court ruled that parliament had never been prorogued in the first place and that its session still continued. By analogy and following the same logic, Democracy Watch should have argued that Canadian courts must invalidate the trio of proclamations which Governor General Mary Simon promulgated on 15 August 2021 on the advice of Prime Minister Trudeau and cabinet, which, in turn, would make the entire 44^th general election and the 44^th Parliament itself invalid, because the 43^rd Parliament would not have validly been dissolved. Such an absurdity would probably at this stage necessitate holding another general election, which would also surely detract from what Democracy Watch considers the main purpose of the fixed-date elections law itself. Democracy Watch could therefore not follow its own argument through to its logical conclusion because doing so would merely have exposed the absurdity of this half-hearted and desperate trolling posture. The Federal Court did not go far enough in denouncing Democracy Watch here.

Indeed, it is difficult to believe that Democracy Watch sincerely believes that Canadian courts should regard the decisions of British courts as persuasive or binding when Democracy Watch has also campaigned for the last decade to abolish the Crown of Canada and turn Canada into a republic. Such calls still litter its website. Even as recently as 2021, Democracy Watch blustered: “More than 15 million adult Canadians (and likely their kids as well), a clear majority, want to retire the monarchy and change to a democratically chosen Canadian Governor General and Lieutenant Governors.”[15] Duff Conacher issued a strange press release on 22 January 2021 wherein he asserted the same deliberately obtuse doctrine that a prime minister can establish a constitutional convention by unilateral declaration, which would then bind his successors, as he did in his factum to the Federal Court in 2009: 

To Canadianize the selection of the Governor General, Democracy Watch proposes that the Prime Minister should not request that Queen Elizabeth approve of the person chosen through the process. The Queen does have to approve the person formally, but if the Prime Minister does not request the approval, and the Queen agrees to whomever is nominated, then a new constitutional convention will be established that Canada chooses its own Head of State. This will be a small but significant step toward full independence for Canada.[16]

Justice Zinn concluded that the Federal Court in 2022 must defer to the Federal Court of Appeal’s Conacher ruling from 2011[17] and that “as such, this application has no chance of success.”[18] Zinn added that “this application is an attempt to relitigate the issue lost previously.”[19]

What Fixed-Date Election Laws Do and Do Not 

The second federal snap election in 2021 notwithstanding the fixed-date elections law surprised no one. 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.”[20] 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.[21] On 22 June, Prime Minister Trudeau denounced the 43^rd Parliament for its “obstructionism and toxicity,” not the sort of thing that one would say in advance of a productive fall sitting.[22]

Liberals briefed the press on 12 August that the Prime Minister would kick off the election on Sunday[23], 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.[24] 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.[25] 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.

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.[26] 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.[27] 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.[28] 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.[29] 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.

Conclusion 

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. The two federal snap elections – Harper’s in 2008 and Trudeau’s in 2021 – yielded the two “draws”; while the incumbent governments remained in power in both cases, but both Harper and Trudeau failed in their goal to expand their pluralities to majorities. 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.

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

• Draw: 2
• 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, irrespective of what vexatious litigants insist.

These 12 precedents from 2008 to 2022 show without doubt that the constitutional convention which Democracy Watch has asserted since 2009 does not, in fact, exist. The opposite of what Democracy Watch believes is true, as courts have confirmed now six times. But this dissolution-chasing organisation will lurk in the shadows of the next snap election, whether federal or provincial, and launch the seventh litigation as soon as it concludes, and some court will have to go through this rigmarole once more.

Similar Posts: 

• The Courts Uphold the Correct Interpretation of Fixed-Date Election Laws for the Fifth Time Since 2009 (December 2021)
• Why Justin Trudeau’s Snap Election in 2021 Does Not Break the Fixed-Date Election Law(August 2021)
• Putting the Personal Above the Factual: Errol Mendes on Early Dissolution and Fixed-Date Election Laws in 2008 vs in 2021(August 2021)
• Peter H. Russell Now Agrees with Me: What Happens When a Governor General Rejects a Prime Minister’s Advice(August 2021)
• The Timing of Scheduled Federal Elections(July 2019)
• When Snap Elections Are Good and Just(August 2018)
• The Provinces Show How Fixed-Date Election Laws Affect Dissolution by Efflux of Time(May 2017)
• What Is It About Early Dissolution That Everyone Finds So Confusing? (March 2017)
• The Mandate Problem: Early Dissolution and Fixed-Date Election Laws in Prince Edward Island and Alberta (April 2015)
• Fixed-Date Election Foibles in the Provinces (March 2015)
• Your Canada, Your Constitution: Constitutional Sophistry and Political Activism Trump Scholarly Research and Education Canadians (June 2012)
• My Presentation at the Canadian Political Science Association’s Conference on Fixed-Date Election Laws (June 2013)
• Constitutional Scholarship or Political Activism? The Role of the Academy Following the Coalition-Prorogation Crisis of 2008(November 2011)
• Stephen Harper Did Not “Break His Own Law” in 2008(August 2011)

Notes

[1] Democracy Watch, “About,” accessed 21 April 2022.

[2] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233; Democracy Watch et al. v Prime Minister of Canada et al., 2022 FC 239.

[3]  Conacher v. Canada (Prime Minister), 2009 FC 920  Conacher v. Canada (Prime Minister), 2010 FCA 131; Engel v Alberta (Executive Council), 2019 ABQB 490; Engel v Prentice, 2020 ABCA 462; Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233.

[4] Conacher v Canada (Prime Minister), 2009 F.C. 920, at para. 2.

[5] Conacher v. Canada (Prime Minister), 2009 FC 920 (Memorandum of Fact and Law of the Applicant at para. 63).

[6] Democracy Watch et al. v Prime Minister of Canada et al., 2022 FC 239, at para. 3.

[7] Ibid., at para. 8.

[8] Ibid., at para. 2.

[9] Ibid., at para. 14.

[10] Ibid., at para. 17.

[11] Ibid., at para. 7.

[12] Ibid., at para. 13.

[13] Ibid., at para. 19.

[14] Ibid., at paras. 20-21.

[15] Democracy Watch, “Democratic Head Campaign,” February 2021, accessed 21 April 2021.

[16] Duff Conacher, “Next Governor General Should Be Chosen Through Democratic, Multi-Partisan, Canadianized Process,” Democracy Watch, 22 January 2021, accessed 21 April 2022.

[17] Conacher v Canada 2010 FCA 131.

[18] Democracy Watch et al. v Prime Minister of Canada et al., 2022 FC 239, at para. 21.

[19] Ibid., at para. 22.

[20] Jack Harris (New Democratic Member for St. John’s East), Simon Marcil (Blocist Member for Mirabel), and Kate Young (Liberal Member for London West), “Government Orders: Members Not Seeking Re-Election to the 44^th Parliament,” in House of Commons Debates,  43^rd Parliament, 2^nd Session, volume 150, no. 118, 15 June 2021, at pages 8499-8518.

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

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

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

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

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

[26] 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.

[27] 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.”

[28] 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 Colonies, 2nd 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.

[29] Canada Gazette, “Proclamation Dissolving Parliament,” “Proclamation Issuing Election Writs,” “Proclamation Summoning the House of Commons to Meet on October 18, 2021,” Part II, Extra, Volume 155, No. 6 (Ottawa: Her Majesty the Queen in Right of Canada, 16 August 2021), 1-6.