“There’s Nothing Strategic About This”: How Dwight Ball’s “New Government” Distorted the Caretaker Convention

Posted on 2019/08/01 by J.W.J. Bowden

By James Bowden & Lyle Skinner[1]

 

Table of Contents

Introduction: An Early Election Leads to a Hung Parliament

The Caretaker Convention in Canada and Newfoundland & Labrador

Summoning the New House of Assembly, Electing the Speaker, and Tabling the Budget

Historical Precedents: Not Electing a Speaker and Not Passing the Address-in-Reply

Conclusion: Ball Distorted the Principles of Government Formation For Nothing

Abstract

We use the provincial general election in Newfoundland and Labrador in 2019 as a case study in the Caretaker Convention, the authority of the Lieutenant Governor in forming governments, and how incumbent governments can remain in office and test the confidence of a minority parliament. We review how incumbent Premier Dwight Ball took the unusual step of advising the Lieutenant Governor to re-appoint him to the office that he already occupied in an apparent attempt to liberate his incumbent government from the constraints of Newfoundland & Labrador’s new official guidelines on the Caretaker Convention over one week before obtaining the confidence of the new House of Assembly in which no party held a majority. We also examine the unique history of Newfoundland’s House of Assembly and similar historical precedents. We conclude by comparing the Canadian method of appointing premiers used in other provinces to the novel Ball Method and to the system of confirmation voting used in other jurisdictions, demonstrating that the Ball Method provides the least accountability of the three.

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Posted in Appointment of PM, Caretaker Convention & Government Formation, Comparative, Confirmation Voting, Constitutional Conventions, Constructive Non-Confidence, Crown (Powers and Office), Officialization of Convention, Succession (Prime Minister) | 1 Comment

The Timing of Scheduled Federal Elections

Posted on 2019/07/25 by J.W.J. Bowden

Introduction

Parliament first considered the fixed-date election provision in the Canada Elections Act in 2006 and enacted it in May 2007. Even today, the statute still refers to what should have become the first scheduled federal election in October 2009 as the baseline for all subsequent scheduled elections, even though no federal election ever took place in 2009. Prime Minister Harper infamously opted secure a dissolution of the 39th Parliament one year early in September 2008 for an election in October 2009 on the reasonable grounds that his government had already lost the confidence of the Commons in practical terms because it could no longer shepherd its legislation through apart from Liberal abstentions.[1] In addition, Harper had met with Jack Layton, Leader of the New Democratic Party, and Gilles Duceppe, leader of the Bloc quebecois, in the days before the early dissolution, and neither could pledge support; at the same time, Liberal leader Stephane Dion had stated openly and publicly that he would introduce a motion of non-confidence the week of 15 September 2008 when the Commons returned from its summer recess, in which case, there would have been an early election anyway.[2] Contrary to all evidence, this episode continues to stoke the ire of the liberal intelligentsia in some quarters over a decade later. And in March 2011, the House of Commons expressly withdrew its confidence from the Harper government, and an election occurred in May 2011. The first federal general election which took place as scheduled occurred on 19 October 2015. The election currently scheduled for 21 October 2019 would become only the second to occur on schedule, if everything holds.

In this election year, we should take stock in how Canada’s fixed-date elections legislation has evolved since 2007, how federal elections occur, and how they could be delayed under some circumstances.

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

Errol Mendes Ventures Across the Sea To Slay A New Conservative Dragon

Posted on 2019/07/23 by J.W.J. Bowden

Now that the Liberals have formed government under Prime Minister J. Trudeau for four years, Errol Mendes, Professor of Law at the University of Ottawa, had to venture across the seas in search of new Conservative dragons to slay. And as so often happens in these quixotic quests, the facts of the matter prove an inconvenient impediment to achieving Mendes’ political goal. Mendes’ latest column to the Globe and Mail, Canada’s illustrious paper of record, “Boris Johnson Should Learn Canada’s Proroguing Lesson,” contains numerous factual and conceptual errors – no small feat given its short length. Worse still, the Globe and Mail has a history of printing inaccurate columns on prorogation, like its editorial from 2 August 2013 in which it lashed out against Stephen Harper’s “third” prorogation, which in fact happened in 2009.

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Posted in Crown (Powers and Office), Prorogation | Leave a comment

Saskatchewan Needs a New Lieutenant Governor Forthwith

Posted on 2019/07/16 by J.W.J. Bowden

Standard of the Lieutenant Governor of Saskatchewan

W. Thomas Molloy, the Lieutenant Governor of Saskatchewan, died in office on 2 July at the age of 78, and he was laid to rest on 13 July in Saskatoon.[1] This leaves his family and friends in mourning. And it also grinds the machinery of government in the province of Saskatchewan to a sudden halt and could potentially throw the province into chaos and leave it vulnerable to all sorts of ills. Without a Lieutenant Governor, the Legislature of Saskatchewan (which consists of the Legislative Assembly and the Lieutenant Governor) can pass no laws, and the Government of Saskatchewan can promulgate no Orders-in-Council in the name of the Lieutenant Governor-in-Council and no proclamations in the name of the Lieutenant Governor.

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Posted in Confidence Convention, Constitutional Conventions, Corporation Sole, Crown (Powers and Office), Lieutenant Governors | 4 Comments

Changing Canada’s Capital City: Section 16 of the Constitution Act, 1867

Posted on 2019/07/14 by J.W.J. Bowden

Introduction

Over the last five weeks or so, two of my closest constitutional compatriots have independently of one another brought up the same issue with me on the subject of section 16 of the Constitution Act, 1867, so I thought that this wonderful nerdy serendipity called for a fun little blogpost on the subject. They certainly came to the right person for that discussion. They also brought up the issue on Twitter as well in a bit of fun about the NCC and the atrocious proposal to attach a giant radiator to the Chateau Laurier.

https://twitter.com/PhilippeLagasse/status/1149378348919009280

 

 

https://twitter.com/SkinnerLyle/status/1149785062742745089

I first presented a paper on “Canada’s Legal-Constitutional Continuity, 1791-1867” at the “Constitution at 150” Conference at the Université de Montréal in May 2017. My journal article of the same name will come out in 2020 in the Journal of Parliamentary and Political Law. In that manuscript, I made the following observation about section 16 of the Constitution Act, 1867:

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Posted in Constitution (Written), Crown (Powers and Office), History of British North America | 8 Comments