A few weeks ago, I received a report from one of my readers that some departments of the government of Newfoundland and Labrador have decided not to answer questions from journalists on the grounds that the Caretaker Convention prevents them from doing so. That is false. In fact, the Executive Council Office of Newfoundland and Labrador created some guidelines on the caretaker convention under the previous ministry of Dwight Ball in 2019 entitled Guidelines on the Conduct of Public Servants During An Election Period. They say the opposite of what these civil servants have claimed:
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.
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.
I have a piece coming that lays out my thinking out plainly.
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: