An Outbreak of Snap Election Fever During a Pandemic

Posted on 2020/05/28 by J.W.J. Bowden

Whenever Canadian journalists get bored or run out of other things on which to write, they often engage in idle speculation about snap elections. This time John Ivison of The National Post became Patient Zero in this latest strain of Snap Election Fever on 6 May, followed the next day by Susan Delacourt of the Toronto Star. Philippe Fournier of Maclean’s (who, I’m told, is an astrophysicist and not a journalist per se) joined in with another forceful intervention on 24 May.  

All this culminated in a fit of circular logic on 27 May when reporters asked Prime Minister Trudeau about a snap election based on the speculation that their colleagues had created in the first place earlier this month. CTV News quote the Prime Minister:

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Posted in Dissolution, Fixed-Date Elections | 2 Comments

On the Doctrine of Necessity: The Division of Powers Does Not Apply During a Pandemic

Posted on 2020/05/18 by J.W.J. Bowden

Quebec imposed this unconstitutional bordercheckpoint on its side of the Portage Bridge, screening motorists entering from Ontario and turning some back. I took this photo myself on the late afternoon of 2 April 2020.

On 1 April, Quebec announced what I presumed at the time must have been an April Fool’s Joke: that it would use its provincial police, La Sûreté du Québec, and municipal police forces to set up border checkpoints with Ontario, New Brunswick, and Labrador. New Brunswick as of 25 March and Nova Scotia as of 23 March had imposed similar measures using provincial peace officers to man border checkpoints. (They wouldn’t dare try to use the RCMP contracted to conduct provincial policing in New Brunswick and Nova Scotia). However, section 92 of the Constitution Act, 1867 does not provide the provinces the authority to impose controls and checkpoints against other provinces, irrespective of whatever declarations of emergency they have made at the provincial level. Their legislatures lack the head of power to enact statutes which touch upon this competency, and their executives therefore lack the authority to enforce such a thing.

Since the provinces can only act within their strictly enumerated competencies and areas of jurisdiction under section 92, this particular authority goes to the federal order of government by default under section 91 – triply so, in this case. The authority to set up internal border checkpoints would fall to Ottawa under the Peace, Order, and Good Government (POGG) Clause, whereby non-enumerated authorities fall to the federal order of government, as well as, more precisely, under both sections 91(10), “Navigation and Shipping”, and 91(11), “Quarantine and the Establishment and Maintenance of Marine Hospitals” — with the emphasis on “Navigation” and “Quarantine” in this case. The fact that the Government of Canada has chosen not to exercise this authority does not somehow transfer it to the provinces, nor can the provinces invoke the Doctrine of Necessity to impose it. The division of powers cannot be loaned out or delegated without a constitutional amendment, such as the Constitution Act, 1940 that added “Unemployment Insurance” as item “2A” to Ottawa’s jurisdiction under section 91. Yet this pandemic has defenestrated the Constitution of Canada, and very few seem to notice or care.

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Posted in Constitution (Written), Division of Powers, Doctrine of Necessity | 8 Comments

The Fixed-Date Election Law Forced Saskatchewan’s Upcoming Pandemic Election

Posted on 2020/05/17 by J.W.J. Bowden

Introduction

Brian Pallister’s unnecessary early election last year – done ostensibly to prevent an election from occurring during the celebrations of Manitoba’s sesquicentennial in 2020 and to avoid accusations that his government would short-circuit rules against advertising to benefit the Progressive Conservative Party during the pre-writ and writ – now looks remarkably but unintentionally prescient. Even though Manitoba might have to cancel some of these celebrations this summer, Pallister’s decision has at least spared Manitobans the prospect of a mandatory dissolution or a dissolution by efflux of time (i.e., a dissolution which occurs automatically pursuant to statute or the constitution instead of by a premier’s advice to the governor) during a pandemic and the resulting Pandemic Election in the fall of 2020. But neighbouring Saskatchewan remained on course to suffer this fate. As of 13 May 2020, Scott Moe, Premier of Saskatchewan and Leader of the Saskatchewan Party, has confirmed that the province will go through with its general election scheduled for October 2020. And the fixed-date election law is to blame.

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Posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections | 3 Comments

Electoral Reform: Quebec Will Hold a Referendum With a Clear Question

Posted on 2020/05/01 by J.W.J. Bowden

I took this photo of the building which houses Quebec’s National Assembly in May 2008, which ended an unusually snowy 2007-2008 winter season.

Last spring, I wrote about the prospect that the Legault government in Quebec would implement mixed-member proportional representation in time for the next provincial general election scheduled for 2022 in a piece for Policy Options. Recent developments answer this question in the negative – but in an interesting way. The Legault government has still taken a unique approach which distinguishes it from what governments in other provinces have done.

To recap, during the lead up to the provincial general election in 2018, Legault pledged that his party would table a bill in the National Assembly to switch to MMPR and rejected what British Columbia and Ontario did with citizens’ assemblies and referendums. Legault even promised during the provincial election campaign in 2018 that he would not “do what Trudeau did” and abandon electoral reform if his party won a parliamentary majority.[1] The Coalition pour l’avenir du Québec won a parliamentary majority in 2018, and Premier Francois Legault pledged in his Opening Speech that his government will by October 2019 introduce a bill to switch Quebec’s electoral system to MMPR for the next scheduled provincial election in 2022.

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Posted in Electoral Reform, Reform | 7 Comments

The Constitution of the Confederate States of America Disproves the States’ Rights Narrative & Contains a Parliamentary Twist

Posted on 2020/04/29 by J.W.J. Bowden

During this lockdown and quarantine, I recently re-watched Ken Burns’s epic documentary series on the Civil War, serenaded with the dulcet, non-rhotic tones and mellifluous commentary of the late Shelby Foote. I also read several speeches and essays by one of our Fathers of Confederation, Thomas D’Arcy McGee. The Confederation Debates and much of the public discourse in British North America of the 1860s focuses on the Civil War and its potential consequences for Canada. Thomas D’Arcy McGee, to the extent that he endures in our national memory today at all, mostly features as the “Poet of Confederation” and for having earned the ignoble distinction of becoming the first of only three Canadian politicians ever to die by assassination. But we should also treat him as a serious political thinker and theoretician of federalism, constitutional monarchy, and parliamentary government.

The combination of Burns’s documentary and McGee’s writings prompted me to read for the first time the Constitution of the Confederate States of America, and it contained for me two surprises: first, that its text expressly rejects the “States’ Rights” narrative, which, in turn, has greatly contributed to the “Lost Cause” mythology; second, more innocuously – if it’s even possible to examine a secessionist polity steeped in slavery and expressly founded upon racial inequality in such a manner – its small concession (dare I say, surrender?) to parliamentary government.

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Posted in Comparative, Parliamentarism v Presidentialism | 4 Comments