Remember, Remember the Fifth of November: Nova Scotia Enacts Canada’s Last Fixed-Date Election Law

Posted on 2022/01/11 by J.W.J. Bowden

Nova Scotia’s Failed Fixed-Date Election Bills, 2007-2014

No province has agonized over fixed-date elections like Nova Scotia. Its House of Assembly has debated several private members’ bills to establish fixed-date elections and almost joined in the first wave of legislation back in 2007 and then almost joined the second wave of fixed-date legislation in 2013. But three successive ministries of the three main Canadian parties between 2007 and 2015 – those of Conservative Rodney MacDonald (February 2006 to June 2009), New Democrat Darrell Dexter (June 2009 to October 2013), and Liberal Stephen McNeil (October 2013 to February 2021) – all declined to table such legislation. More extraordinarily still, a Liberal backbencher named Stephen McNeil introduced the first bill in 2007 yet ultimately decided as Premier in 2013 and 2014 not to support two Conservative private members’ bills ostensibly because he had not decided upon establishing the schedule in spring versus fall.[1] But on 8 April 2015, Premier McNeil announced that his government would not table legislation to enact fixed-date elections in Nova Scotia because they were not fit for purpose.[2] He said:

“What we are seeing is the fixed dates haven’t been working, so when we amended the legislation we didn’t put one in. Legislation across the country hasn’t resulted in fixed election dates, that’s the issue. We’re not in the business of creating legislation that people don’t adhere to or wouldn’t be adhered to in this province.”

McNeil abruptly shifted course on 8 April because of what two of his opposite numbers had just done. Alberta enacted its fixed-date election law in 2012, and Prince Edward Island’s dates back to 2008, yet these laws did not prevent Wade MacLaughlan, Liberal Premier of Prince Edward Island, from obtaining a snap election on 6 April and Jim Prentice, Conservative Premier of Alberta, from doing the same on 7 April.[3] This double act also marked the first two occasions where Premiers obtained snap elections in majority legislatures – the very scenario which the modern incarnation of fixed-date election laws would supposedly always prevent after Chretien’s successive snap elections in 1997 and 2000. The previous early dissolutions and snap elections under fixed-date election laws in Canada in 2008 and Ontario and Quebec in 2014 occurred in minority parliaments.

But Nova Scotia, which had long stood as the last redoubt of the old ways, became the last jurisdiction in Canada to enact a fixed-date election law on the Fifth of November 2021. After twenty years, fixed-date election laws have now completed their long march through the legislatures. It began with British Columbia in 2001 and ended with Nova Scotia in 2021.

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Posted in Dissolution, Fixed-Date Elections | 1 Comment

Yukon’s Fixed-Date Elections Law

Posted on 2022/01/06 by J.W.J. Bowden

Introduction

Between 2001 and 2021, all the federal parliament and the legislatures in all provinces and territories enacted fixed-date election laws. British Columbia started the trend in 2001. Yukon held out to December 2020, and Nova Scotia fell on 5 November 2021. These laws have now completed their long march through the institutions of power. The Fog of the Pandemic that many of us have experienced over the last 21 months shrouded these last two sets of debates and concealed them from my limited attention, which I now turn to them in retrospect and examine them in chronological order.  Continue reading →

Posted in Fixed-Date Elections | Leave a comment

The Courts Uphold the Correct Interpretation of Fixed-Date Election Laws for the Fifth Time Since 2009

Posted on 2021/12/29 by J.W.J. Bowden

Image unrelated to Duff Conacher and to the text below

Introduction

Blaine Higgs became Premier of New Brunswick on 9 November 2018 because Brian Gallant’s Liberal ministry lost the vote on the Address-in-Reply to the Speech from the Throne in the minority legislature that voters had returned on 24 September 2018.[1] Most premiers seem not to appreciate gaining the governor’s commission through events so inauspicious and messy as mid-parliamentary transfers of power after votes of non-confidence and resignations; Higgs proved no different and sought his own “mandate” by advising Lieutenant Governor Brenda Murphy to dissolve the 59th Legislature on 17 August 2020, for an election on 14 September – two years before it reached its maximum life.[2] (Naturally, Higgs had only a few weeks earlier claimed that he had no interest in calling a snap election.)[3] Higgs thus obtained the 9th early dissolution notwithstanding a fixed-date election law in Canada.

As of December 2021, 12 such snap elections have taken place since 2008. Even though Canada’s fixed-date election laws only lower the maximum life of a legislature or parliament from five years to something between four and just under five years and do not guarantee a minimum lifespan, Duff Conacher – for the third time since 2009 – launched frivolous litigation contesting the legal-constitutional validity of a dissolution of parliament and, by necessary implication, the legitimacy of the general election which followed. The Court of Queen’s Bench of New Brunswick issued a ruling on 29 October 2021 that this province’s fixed-date elections law does not prevent the Premier from advising the Lieutenant Governor from dissolving the legislature earlier that the scheduled date, though Democracy Watch v New Brunswick (the Attorney General) did not become publicly available until 9 December 2021.[4] In this ruling, the Court of Queen’s Bench of New Brunswick affirmed four previous rulings on this very same question – the two Conacher rulings by the Federal Court in 2009 and Federal Court of Appeal in 2010, as well as the two Engels rulings of Alberta’s Court of Queen’s Bench in 2019 and Court of Appeal in 2020[5] – and acknowledged that dissolving legislatures is fundamentally a “political decision and therefore, as noted in Conacher, not justiciable.”[6] The Supreme Court of Canada also considered this jurisprudence definitive and refused to waste its time re-adjudicating the Engle rulings in May 2021.[7]

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Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections, Watching Democracy Watch | 1 Comment

Barry K. Wilson’s Biography on Sir Mackenzie Bowell

Posted on 2021/12/24 by J.W.J. Bowden

If Canada maintained a list of mediocre prime ministers like the mediocre presidents parodied by The Simpsons, Sir Mackenzie Bowell would surely round out the top five along with Sir John Abbot, Sir John Thompson, Kim Campbell, and Joe Clark. Our second and last Senator prime minister languished in obscurity for most of the 20th century, but he seems to have regained some renewed interest in the 21st with two recent biographies. Yet it is telling that Canadian historian Betsy Dewar Boyce failed to obtain a publisher for her book in her lifetime; her biography on Bowell did not appear until 2017, ten years after her death, and this book about Bowell has itself disappeared into the ether of the internet.

In 2021, Canadian journalist Barry K. Wilson secured the publication of Sir Mackenzie Bowell: A Canadian Prime Minister Forgotten by History, and I reviewed it for the latest issue of The Dorchester Review, which just came out online today. You can subscribe to it here.

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Posted in Dorchester Review, History of British North America, Reviews | Leave a comment

Review of Gee & Webber’s “What Is a Political Constitution?” and Some More Thoughts on the Nature of Constitutional Conventions

Posted on 2021/11/22 by J.W.J. Bowden

Constitutional Norms in the United States vs Constitutional Conventions in Canada

I’ve been mulling overGould’s article “Codifying Constitutional Norms” (in the United States) and about constitutional norms in the American versus Canadian systems of government a bit more over the last few days, as well as on the differences between Responsible Government and Consensus Government, as well as a strange precedent that just unfolded in the State of South Australia this week (more on that in a subsequent post). It seems to me that constitutional norms in the United States still remain, for the most part, different in kind rather than merely in degree to most of the constitutional conventions which apply in the Commonwealth Realms, what the British call “the political constitution.”

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Posted in Articles and Books, Codifying Norms in the US, Comparative, Constitution (Written), Constitutional Conventions, Division of Powers, Parliamentarism v Presidentialism, Reviews | 2 Comments