Since the fall of 2019, I have read a series of articles in mid-brow American news magazines lamenting that a crop of aging politicians born in the 1940s, these Soixante-Huitards and the tailend of the Silent Generation, maintain their deathgrip on American politics. These include Derek Thompon’s “Why Do Such Elderly People Run America?” in The Atlantic, Ian Prasad Philbrick’s “Why Does America Have Old Leaders?” in The New York Times, and, most recently, Eve Peyser’s “Gerontocracy Is Hurting Democracy” in New York Magazine.
I stumbled upon the first of these articles lamenting America’s gerontocracy in 2019 around the same time when I was researching for my post “This Election Has Not Been About Serious Issues: The Very Unserious Issue of Dual Citizenship”, in which I noted that only three prime ministers since Confederation (Kim Campbell, Stephen Harper, and Justin Trudeau) were, in fact, born as British subjects. At the time another thought occurred to me: aside from Kim Campbell’s irrelevantly short tenure as prime minister for a few months in 1993, Canada has never had a proper Soixante-Huitard Boomer, born between 1946 and 1953 or so, as prime minster; mercifully, we now never will. For whatever reason, federal Canadian politics largely skipped over this cohort who established themselves as activist generation in the United States in favour of a plethora of long-serving politicians of the Silent Generation (those born in the 1930s), with Joe Clark, John Turner, Brian Mulroney, Jean Chretien, and Paul Martin in 24 Sussex for all but five years between 1979 and 2006.
Even without catchy buzzphrases like “deliverology” and “Open Government,” the Government of Canada published more official documents in the mid-20th century than it does today simply out of a sense of common decency and an understanding that liberal-democratic countries must preserve a proper historical record of what their governments have done. I have checked the Canada Gazette regularly for the last few weeks in the hope that they would contain copies of the executive instruments which record the dismissal of Payette the Petulant from the Office of Governor General and the appointment of the Chief Justice as Administrator; so far, the Gazette contains nothing of the kind.
Conflating the Caretaker Convention with The Doctrine of Necessity
I remain transfixed by the spectacle unfolding in Newfoundland and Labrador and will have to report back once Elections Newfoundland and Labrador counts the ballots cast in this illegitimate election.
Last week, Ed Hollett, a political historian based in St. John’s, accused me and Lyle Skinner of construing the Elections Act of Newfoundland and Labrador too narrowly. “You need to look at the Act again as a whole document, not just a list of rules. I think there’s an element of that limited approach in Bowden’s commentary as well,” he insisted. By “limited,” he means “factually correct,” because the words in statutes must mean something. “Looking at an act as a whole” does not substitute for the absence of specific provisions that would need to exist in order for your argument to be true.
Whenever someone accuses you of interpreting a statute too narrowly, or something to that effect, it means that he is about to propose something that the statute clearly prohibits or does not support or simply does not contain at all. A statute is not greater than the sum of its parts, and you cannot magically derive statutory authority where no statutory provision exists. I awaited Hollett’s full counter-argument with eager anticipation and became greatly disappointed upon reading it. The closest that he comes to shedding new insight into statutory interpretation in general and the Elections Act in particular occurs in this observation:
How This Happened
Today, on 13 February 2021, Newfoundlanders and Labradoreans across the province should have made their way to their polls and cast their ballots in a general election for their province’s 50th General Assembly. But events intervened.
Newfoundland and Labrador now finds itself navigating through uncharted waters amidst thick fog. Premier Dr. Furey made the foolish decision to trigger an election at the peak of flu season, with a campaign between 15 January and 13 February. Cases of COVID-19 started mounting earlier this week, and Chief Electoral Officer Bruce Chaulk issued a desperate plea on 11 February that the Premier advise the Lieutenant Governor postpone the election after poll workers for Elections Newfoundland and Labrador quit in fear of their safety. Chaulk then took the unprecedented action of cancelling in-person voting in 18 out of 40 ridings that same day, through ambiguous legal authority. On 12 February, the Chief Medical Officer announced that the province would enter another stringent lockdown effective immediately, and the Chief Electoral Officer later that day cancelled all in-person voting in the remaining 22 ridings and unilaterally extended the writ for special ballots to 1 March 2021, in direct violation of section 58(1) of the Elections Act, which sets the maximum writ at 35 clear days, in this case, up to 20 February 2021 at most.The Premier made a terrible error in judgement, which, in turn, has forced the Chief Electoral Officer to issue an illegal directive which directly contradicts the Elections Act that he is tasked to uphold. This confluence of stupidity and illegality calls into question the integrity and constitutionality of this entire election, the ill-begotten results of which we will not know until mid-March at the earliest.
Newfoundland and Labrador should have amended and updated its Elections Act when the House of Assembly sat between September and December 2020 to give the Chief Electoral Officer flexibility within the clear bounds of statutory authority, similar to how the Lieutenant Governor-in-Council of Saskatchewan passed new Elections Act Regulations, as secondary legislation, in advance of its election in 2020 – which its fixed-date election law also scheduled during the pandemic. At this stage, I can only hope that other provinces and territories, and Ottawa, will take note and that their legislatures will amend through primary legislation, or their Governors-in-Council will modify through second legislation, as the case may be, their respective Election Acts, so that no other jurisdiction in Canada subjects itself to this pathetic and unedifying spectacle.