The Caretaker Convention and the Appointment of Supreme Court Justices During Elections: 2015 vs 2019

Posted on 2019/09/27 by J.W.J. Bowden

The Caretaker Array in Star Trek: Voyager

Prime Minister Appoints New Justice to the Supreme Court During the Election

On 24 April 2015, Marshall Rothstein announced that he would retire as a justice of the Supreme Court of Canada on 31 August 2015.[1] On 27 July 2015, an Order-in-Council advised that Russell S. Brown be appointed as a Puisne Judge of the Supreme Court of Canada, effective 31 August 2015.[2] Since Prime Minister Harper opted for a long writ in 2015 of 78 days from 2 August to 19 October 2019, Russell Brown’s appointment ended up happening during the writ for the 42nd general election.[3] If Prime Minister Harper had opted for the minimum writ of 36 days, then Brown would have taken up his appointment before the writ. In any case, however, Prime Minister Harper must have known by 27 July that he would have advised the Governor General to dissolve parliament only a few days later. Nevertheless, the announcement did not become a big news story until a few days later, though Maclean’s mused that he might be conservative.[4]

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Posted in Caretaker Convention & Government Formation, Constitutional Conventions | 6 Comments

The Caretaker Convention in 2019

Posted on 2019/09/15 by J.W.J. Bowden

Introduction

Prime Minister Trudeau has advised Her Excellency Julie Payette to dissolve the 42nd Parliament and issue the writs for the 43rd general election, which will occur on 21 October 2019. So endeth the longest session in Canadian history. The 1st session of the 42nd Parliament lasted from 3 December 2015 to 11 September 2019 – a record 1,378 days – because the Prime Minister opted not to prorogue parliament at all.[1] In so doing, Justin Trudeau has proven the opposite of Stephen Harper. And in so doing, Justin Trudeau has also surpassed his late father and former Prime Minister Pierre Elliot Trudeau on at least one important metric: he had held the previous record for the longest parliamentary session and thus longest time without a prorogation with the 1st session of the 32nd Parliament, which lasted 1,325 days from 14 April 1980 to 30 November 1983.[2]

Under the Canada Elections Act, the polling day is scheduled for 21 October 2019. Since the writ must last a minimum of 36 days and now a maximum of 50 days, the 42nd Parliament had to be dissolved between 1 and 15 September 2019. The Prime Minister opted for a later date and thus shorter campaign, which started on 11 September. And so, too, did the Caretaker Convention.

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Posted in Caretaker Convention & Government Formation, Constitutional Conventions | 3 Comments

The Prime Minister of Ontario Was Also a Member of Provincial Parliament

Posted on 2019/09/11 by J.W.J. Bowden

Introduction

Ontario has paradoxically always held itself as superior to the other provinces yet also as the quintessential representation of Canada itself: Ontarians are the most likely of all Canadians to refer to and think of themselves as Canadian only, as opposed to Canadian first and provincial demonym second, or in terms of their provincial identity alone. But for what Ontarians lack in provincial nationalism and identity, they make up for in pretentious, federal-sounding titles ironically shorn of secessionist sentiment. The pomp alone remains, signifying the arrogance that lies beneath.

Ontario has established the approach of layering fancy, national- or federal-sounding titles onto its provincial political institutions informally on top of the pedestrian formal names for these same institutions as set out in provincial legislation. And this informal layering of fancy titles designed to impart unearned prestige flow from informal means, like resolutions of the Legislative Assembly or simple executive decree. These informal practices have proven most enduring, and this is why Members elected to the Legislative Assembly of Ontario are called “Members of Provincial Parliament” (MPPs) instead of as Members of the Legislative Assembly (MLAs) like in eight of the ten other provinces. Some Premiers of Ontario also insisted that they be addressed and referred to as the “Prime Minister of Ontario,” too, well after the two styles had stopped being regarded as interchangeable elsewhere in Canada.

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Posted in Crown (Powers and Office), Prime Minister's Powers | 1 Comment

Prince Edward Island’s First Successful Minority Government

Posted on 2019/08/20 by J.W.J. Bowden

MacLauchlan’s Early Dissolution Gambit Fails

Premier Wade MacLauchlan on 26 March 2019 advised Lieutenant-Governor Antoinette Perry to dissolve the 65th General Assembly of Prince Edward Island and issue writs of election for polling day on 23 April 2019.[1] Prince Edward Island’s fixed-date election legislation had originally scheduled the next provincial election for October 2019, but since that would have coincided with the scheduled federal election, the law would have postponed the provincial election to April 2020 and thus pushed the 65th Assembly perilously close to its absolute maximum lifespan of five years (4 May 2015 to 4 May 2020), as prescribed in section 4(1) of the Constitution Act, 1982. With a writ of 28 days, MacLauchlan would have had to advise the Lieutenant Governor to dissolve the 65th General Assembly on Monday, 23 March 2020 so that the general election could have been held on Monday, 20 April 2020. This 65th General Assembly would certainly have become the longest-lived elected assembly under a fixed-date election law if MacLauchlan had allowed it to run out the clock for another year.

MacLauchlan dismissed criticism of his second early election, saying: “It’s been four years. We had a mandate and fulfilled it. This is an opportunity to ask Islanders for their confidence to build on that record.”[2] But MacLauchlan’s gambit failed. On 23 April 2019, Prince Edward Islanders elected the first minority legislature in their province’s long history of Responsible Government since 1851: in an assembly consisting of 27 MLAs, the Progressive Conservatives won 12 seats; the Greens, 8; the Liberals, 6 on polling day,[3] and the Progressive Conservatives won an additional seat in a by-election on 15 July for a total of 13.[4] The Greens became the Official Opposition for the first time anywhere in Canada[5]; the Liberals came in third, and Wade MacLauchlan even lost his own seat.[6] MacLauchlan confirmed the following morning, on 24 April, that he would resign as premier.[7]

Not since the 19th century have voters elected a minority legislature, and never before 2019 had a single-party minority government in Prince Edward Island succeeded in winning the confidence of the legislative assembly on an Address-in-Reply and budget.[8]

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Posted in Caretaker Convention & Government Formation, Crown (Powers and Office), Fixed-Date Elections, Formation of Governments, Reform | 4 Comments

Manitoba’s Early Election Expands the Caretaker Convention

Posted on 2019/08/15 by J.W.J. Bowden

Introduction 

Brian Pallister, Premier of Manitoba after leading the Progressive Conservatives to a parliamentary majority and 53.1% of the popular vote and 40 of 57 seats in April 2016, has decided to ignore Manitoba’s fixed-date election law in the most convoluted – or, perhaps, creative – way up until now. In the six instances where premiers had opted for snap elections instead of waiting for the polling day scheduled under fixed-date election legislation from 2014 to 2019, they had announced plans for an early election very shortly (on the order of a few days at most) before advising the Lieutenant Governor to dissolve the legislature and issue the writs of election.

On 19 June, Premier Pallister announced that a general election would take place on 10 September 2019, fully 13 months earlier that the polling day scheduled for October 2020. But because Manitoba’s Election Act specifies that the writ for an unscheduled election must last between 28 and 34 days, the Premier did not advise Lieutenant Governor Filmon in person to dissolve the 41st Legislature and issue the writs of election until 12 August 2019. This unprecedented decision resulted in a de facto election campaign of nearly 90 days despite the de jure writ of 29 days.[1] Pallister had stoked speculation about this early election since December 2018 and tried to make it all more palatable by voluntarily binding his government to the 90-day pre-election prohibition on all but necessary and routine government advertising which under the Election Financing Act currently only applies to the Government of Manitoba in the 90 days preceding a scheduled general election. In so doing, Pallister has also set a precedent for broadening the scope of the Caretaker Convention to at least 4 months.

In this post, I will review the history of Manitoba’s fixed-date election law and its current laws regulating the duration of the writ and pre-election advertising, delve more into how recent legislation and Pallister’s actions will, in practice, expand the scope of the Caretaker Convention, and conclude with an explanation why Pallister took this bizarre staggered approach to announcing an election two months before the dissolution and issuing of writs actually took place.

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