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An illegal election?


 

The idea that the Governor General would be within her rights to refuse Harper’s request for dissolution apparently has other adherents besides crankish magazine columnists. Indeed, constitutional scholar Errol Mendes, professor of law at the University of Ottawa and editor of the National Journal of Constitutional Law, argues Harper’s demand for a snap election may well be illegal:

Many of the powers of the prime minister and the Governor General are governed not by the written Constitution, but by constitutional conventions, including who has the right to dissolve Parliament and call for elections. Constitutional convention gives the prime minister only the right to advise the Governor General to call for dissolution of Parliament and thereby trigger an election. The Governor General has an uncontested residual power to deny a prime minister’s request for dissolution.

Constitutional conventions can be both entrenched in and overridden by statute law. That is precisely what the Conservatives did when they decided to constrain the conventional power of the prime minister to seek dissolution whenever he smelled political advantage to do so.

However, the fixed election law does not constrain the residual power of the Governor General…


To be sure, Mendes concedes, the King-Byng affair

demonstrates that the use of the conventional residual power by the Governor General contrary to the advice of the prime minister has the potential to cause political controversy and create trouble for the Crown in Canada… This precedent, while not a constitutional convention, would present a serious political hurdle for a Governor General to refuse to grant the request of a prime minister for dissolution, no matter how contrived.

Still,

Hiding under the political constraints of the Governor General’s residual power is nevertheless a violation of a statute. Some aggrieved citizen may even consider seeking court action to stop this legally dubious move.

And which particular aggrieved citizen might he have in mind?

If Prime Minister Stephen Harper forces a federal election in the coming days, a law professor at the University of Ottawa may go to court to challenge the legality of the election call.

“This is not about politics, this is about the rule of law in this country,” Errol Mendes told Sun Media…

He said he was “seriously contemplating” seeking a court injunction to try to stop such a move.

Stick around. This could get interesting…


 

An illegal election?

  1. I don’t think there’s a snowball’s chance in hell of any court doing a thing about it, the law seems very clear about the preservation of the GG’s power. Elections “must” be held on such-and-such a day, unless they aren’t. It was a pointless law in the first place.

    On the bright side for the Liberals, at least Harper was the one to demonstrate its pointlessness.

  2. But what if the law was unconstitutional in the first place? The court would have to rule both on the law itself and on Harper’s ignoring it.

    You just can’t pass laws changing the relationship between Parliament and the Crown like that. It was ignorant at the time and it’s now revealed as ignorant. It was just a stupid move to appease a festering resentment, among the old CA stalwarts, at Chretien’s 2000 election call. Basically it’s the Harper attitude to government write large: pay off grudges, embrace expediency, despise the very system you so eagerly seek to control. He deserves every gram of opprobrium for this, not that it comes to much in the end. I’m just glad the constitution’s back to normal.

  3. Agree completely with Mike G; it seems to this non-law professor that C-16 recognizes all retained powers of the Governor General. She is free to abide by her First Minister’s advice, or she is fre to reject it. I pity the fool judge who would feel the urge to get in the way of that; any appeal would/should make that fool judge (and the fool law perfesser?) the laughing stock of the Bar.

    Jack, if the law is declared unconstitutional, I would think the Court would not then have anything to say about anyone abiding by it or not.

    Possible wrinkle that the Tories might consider floating out, no less deserving of charges of hypocrisy being laid beneath the “24” at the gate on Sussex: C-16 makes sure mandates never exceed the October four years after the last election, but nothing stops the GG from calling one sooner. Which, according to the letter of the law, is what seems about to happen here.

    The Liberals will be in their rights to call the Tories on it, given the rhetoric at the time of the fixed election law came into effect. But Joe & Josephine Voter are not too likely to let that carry a ton of weight.

  4. Didn’t Mendes work in Paul Martin’s PMO?

    Not exactly a disinterested observer.

  5. madeyoulook, I quite agree about the way the reserve powers are explicitly not infringed in the law; that part of it doesn’t strike me as unconstitutional, and no court would strike it down on that basis. My concern is with the law’s restrictions on the ability of the PM to advise the GG. That strikes me as an infringement of Parliamentary authority (albeit passed by Parliament).

    Of course, I agree it won’t be (and shouldn’t be) an issue in the election. Finally, finally let us have an election about major issues, please O Lord.

  6. Mendes seems to be sucking and blowing at the same time here. After taking the time to actually read the remarkably brief Bill C-16, to me Ned Franks seems to be closer to the truth than Mendes:

    http://tinyurl.com/3m6uap

    If anything, Duceppe and Dionne’s recent comments (the former’s) and evasions (the latter’s) are giving credence to Harper’s position that the next session will see gridlock.

  7. Well, all I can say is that the U of Ottawa law professor is going to have to be very adept at putting together his brief to seek and get an injunction after Harper makes his move, and the campaign begins in earnest.

  8. It seems to me that legal or not, constitutional powers or not, it will be the optics that will prevail.

    After all, Harper insisted on putting the election date in legislation. He had quite a bit to say about the former PM calling an election for political reasons and now he is doing exactly the same thing.

    As I said optics are everything.

  9. This Errol Mendes, who does he think he’s kidding with sentences like this one?

    “The Governor General has an uncontested residual power to deny a prime minister’s request for dissolution.”

    It’s certainly uncontested that it’s a residual power, but it’s very much contested as to whether the GG should ever, ever (ever!) use those residual powers. I mean, if Rick Hillier decided to march on Ottawa with the Royal Canadian Dragoons, THEN there might be something for the GG to do. But all this talk about the GG using her residual powers in real life is sheer romanticism.

  10. Well, until we are a Republic, I would think they must still exist.

    Of course having the GG using them might be self fulfilling.

  11. I’m really disappointed that Canadians are so eager to allow the PM to just break the law because the matter it pertains to is seen as inevitable anyway. We go around yammering about how we are a nation of laws and how we are an example to the world and we just roll over and say oh well, he’s gonna do it anyway so so what if he does it illegally. Big deal.

    He used to have the power to call an election. He changed the law. He no longer has this power. It’s pretty clear.

    If he wants an election that badly he could at least do it legally. Is this really so outrageous to expect of the PM?

  12. Hardly a huge contribution ($87) but Mendes was a donor to Dion’s leadership campaign, according to Elections Canada…

  13. ah. Of course Andrew finds even better evidence…

  14. Katy, he never had the power, according to the strict letter-of-the-law, even before this sham law passed. He has the power/duty to advise the GG to dissolve Parliament and drop the writ. The new law basically says “if nothing else happens first, the next election shall be calculated to fall in October four years later.” Something else appears to be happening. The GG may (or may not) dissolve Parliament and drop the writ, based on the PM’s upcoming behaviour.

    I do not see this as an “illegal election.” Not that I am about to be appointed to the SCC (although, to be fair, I have not checked today’s mail yet), but I also don’t see this dumb law as unconstitutional; it’s just a dumb law, designed poorly (deliberately?) to try to forbid what is likely about to happen.

    Fear not for the rule of law. Fear not that the ultimate result of these current shenanigans is the return of power to the electorate. Then, citizens of Canada, do your job: punish the Tories if you think this election call transgression is the biggest deal facing the country, or reflect on the other issues and place your vote accordingly, or stay on your indifferent asses and don’t vote.

    The Constitution, the GG, Parliament, only truly have powers with the consent of the governed. What’s about to happen appears to be the consultation of the governed. Good. Notwithstanding the recent Act of Parliament, I am far more comforted if political games lead to an election, rather than the games PM Paul “I can count!” Martin played dicking around with confidence votes, pimping Stronach into a cabinet post, etc., to prevent an election.

  15. When are we going to see the Kenneth Whyte interview with former GG Adrienne Clarkson?

    What if…

  16. Picking up on the PMO note, this prof also wrote a questionable piece, again running counter to Harper’s position, on getting rid of the Senate – saying that the Senate would itself veto a move to have it abolished. That’s a dubious contention because if the Senate did that, after the other parts of the amending formula were in place, it would trigger a constitutional crisis.

    Suffice it to say there is a question about his impartiality and it clouds his reasoning.

  17. Just on this point: My concern is with the law’s restrictions on the ability of the PM to advise the GG. That strikes me as an infringement of Parliamentary authority.

    Just so we’re all clear, THE PRIME MINISTER IS NOT PARLIAMENT. (Sorry, had to shout that out, I think Harper needs to hear that).

    Now, all the other arguments surrounding the law are complex, and I don’t know for certain how it would shake out before the courts (I tend to be in the “The Tories passed a meaningless, toothless, do-nothing law for rhetorical political purposes and they can’t really “break” it as it’s essentially “unbreakable” being meaningless, constitutionally dubious dribble). However that said, the implication above that a law passed by Parliament to restrict the powers of the Prime Minister would itself be an “infringement of Parliamentary authority” only makes sense if you believe that the Prime Minister IS Parliament. And while I think Harper may indeed believe that, deep, deep down, the title for someone with such unassailable power is KING, not Prime Minister. And Hell, these days even the power and prerogative of KINGS can be curtailed by Parliament.

  18. This is a very intersting issue.

    For a variety of reasons, it is impossible to have truly fixed election dates in a parliamentary system. However, it is the spirit of the law that counts. After an election, the next election should be four years later (allowing for a few months of flexibility to avoid akward timing) unless the government is defeated or becomes hopelessly deadlocked. This creates a more fair political system. Besides, when a government is elected, regarless of whether it is a majority or a minority, people expect politicians to make Parliament work.

    Although Harper has every right to break his promise of a fixed election date and request an election, the G-G could refuse. Normally the G-G doesn’t refuse an election request but the precedent was set in 1926 in the King-Byng affair. Since Harper has passed the fixed election law and the government has not been defeated, it will be very interesting to see what the G-G does if Harper asks for an election. The G-G could refuse Harper’s request and would have good reason to do so.

    It’s intesting that most of the mainstream media is talking about nothing but an election and yet they don’t even mention the possibility that the G-G could refuse and would have good reason to do so and that a prececent was set in 1926. Most people I’ve talked to aren’t even aware that there is a very real possiblity the G-G could refuse and even fewer know about the King-Byng affair. It’s sad that Canadians seem to know so little about our history and how the Constitution works but they may be about to get a crash course in the next week or two.

    As for my own opinion, I think fixed election dates are a good idea and if Harper tries to call an election, I really hope that the G-G (sorry can’t remember how to spell her name, no disrespect) refuses and upholds the fixed election law. If she doesn’t I think it will be a major setback for democratic reform in this country. It will also make a mockery of our laws and government by showing that laws are meaningless and the PM of the day can do whatever he or she pleases.

  19. Now, all THAT said, I don’t particularly think the Tories need to worry about a court saying that the GG can’t dissolve Parliament because it’s arguably illegal for the PM to ask her to, since even if it IS illegal for the PM to ask her to, it seems to me entirely within her discretion to dissolve Parliament regardless.

    Isn’t it?

    I’m not certain the illegality of the request (presuming it were found to be an “illegal” request) could necessarily be used to curtail the GG’s constitutional authority to grant it. Maybe the PM can’t ask her to dissolve Parliament, but does she need the PM to (legally) ask her to in order to do so?

    So no, I don’t think the Tories need to worry about a court saying that the GG can’t dissolve Parliament based on the notion that it’s arguably now illegal for the PM to ask her to. I would be SLIGHTLY worried though that the GG might refuse to dissolve Parliament based on the notion that it’s arguably now illegal for the PM to ask her to. His power to ask may be in question, but I’d say her power to refuse isn’t. As has been said before by wiser commentators, King-Byng may have resulted in King “winning” politically, but Byng was right in law.

  20. I should also say that should the GG refuse to dissolve Parliament, that I’m CERTAIN Dion would refuse to even ATTEMPT to govern, and so then we’d go to an election regardless.

    Would Tories be as excited to head for the polls though after the Governor General publicly refused to dissolve Parliament based on the notion that the PM was attempting to circumvent a law that his own government championed and promised to uphold?

    As I said, it’d be great fun to watch all that happen.

  21. I’m not certain the illegality of the request (presuming it were found to be an “illegal” request) could necessarily be used to curtail the GG’s constitutional authority to grant it. Maybe the PM can’t ask her to dissolve Parliament, but does she need the PM to (legally) ask her to in order to do so?

    I am fairly sure it would be against Charter rights to discriminate against the Prime Minister’s freedom to have a conversation with the Governor General, unless it was found to be reasonable to restrict it, and it was explicitly restricted by a law — nothing explicitly in the books prohibits the PM (or anyone else) to ask the GG to dissolve parliament.

    Really, from a parliamentary procedure point of view (quick where’s Kady) the PM is stating to the GG that either the Government has completed implementing its programme/agenda and now it’s a proper time to have an election, or, alternatively, that due to some sort of hindrance the PM has no ability to orchestrate the normal business of parliament.

    In this particular case, the Tories seem at the end of their playbook and their patience both, so there’s really no room for Her Excellency to say no. Parliament is demonstrably getting very little done these past months. I would hope that she does point out to him that it’s a bit rich that the Conservative party is the one complaining about dysfunction in parliament, considering how they conduct themselves in committee, but aside from privately tsk-tsking, I don’t see any room for her to take any personal initiative here.

    Even if there were, we really ought to have an election to clear out some of the built-up gunk in the parliamentary pipes… I’m so tired of reading about the Liberals abstaining and the NDP complaining and the Tories obstructing. I would prefer anything to a Conservative minority at this point. (Liberal minority, Conservative majority, ad-hoc rainbow coalition, whatever.) It is bad for the country to have parliament in the mess it’s in now.

  22. I mentioned this before, but the way I see the GG refusing would be for her to suggest that while the Prime Minister is her first advisor, he advises her on the will of the House, and, so far as she is aware, the will of the House, as most recently expressed in legislation, is that barring a loss of confidence, the government is to govern until October 19, 2009.

    If he wishes an election, than he must convince the House to repeal or amend that legislation, or demonstrate that the House has lost confidence in this government.

    James Bow of “Bow. James Bow” has an excellent take on how to do this in a way that would maximize damage to the Liberals here. As much as I would rather Mr. Harper not return, seeing him hoist the Liberals by their own petard would certainly be good for a chuckle.

  23. John:

    “the G-G could refuse and would have good reason to do so and that a precedent was set in 1926”

    It wasn’t a precedent at all. Byng had come to Canada after being Governor of Bermuda. He did not understand that the role of Governor in the one was not the same as the role of Governor General in the other. It doesn’t set a precedent when the GG grossly misinterprets the extent of their actual, if not potential, authority.

    Anyway, since a lot of commenters here (including Mr. Coyne) seem keen for their to be a constitutional crisis just because it would be fun to watch, let me restate the non-constitutional case against the GG refusing Advice.

    The problem is that it would inevitably politicise the Crown. As long as the GG acts only on Advice, it doesn’t matter, from a constitutional point of view, who the GG is. In fact the only qualification for the office is that he/she will not take the law into their own hands (even if half the blogosophere begs them to do so). Clarkson resisted the temptation (barely) and I hope Jean will too. But if she doesn’t, then the GG will in future be picked so that the PM who recommends him can count on his loyalty and not drop him in the doo-doo. This was the primary cause of the Australian constitutional crisis of 1975, where the GG and the PM were from different parties and, in a moment of gridlock between Upper and Lower Houses, sided with the Upper House against the PM, dissolving Parliament unilaterally.

    Oh, but come now, that could never happen here, right? Our politicans are too grown up for that, right? At some point the partisan bickering stops and some tactics remain off the table, right?

    Sure, and my name is Belinda Stronach.

    We’ve lost a lot in this country in terms of mature political culture, but I sure hope we don’t end up with party hacks as GG’s. It would totally erode the legitimacy of the office in the eyes of the public – I mean, imagine Peter MacKay as GG! Or Sheila Copps! Maybe they’d do a good job, but how could their impartiality ever be trusted? You people are playing with fire, I tell you! Fire and brimstone!

  24. Distinction is necessary.

    Mendes may be connected to the Libs in other ways (like his 87$ donation) but he worked, according to the piece you provide Andrew, (and this is my recollection too) he did not work in the PMO, he worked in the PCO…the PM PM’s non-partisan department.

  25. Harper has created an interesting mess, maybe even a trap, for those who follow our governance system. Jean, an appointee that irked many a CON, would be his next federal figurehead to be thrown under the wagon if she was to uphold the law that he created.
    Along with those agencies in charge of public safety (nuclear, food, science) and elections, the GG would thus be cast as an opponent of democracy, and be hoisted beside the senate as things that ‘go bump’ in the night.
    Like income trusts promises, Harper had no intention of following the spirit of his words. It’s obvious that the law was directed only to apply to Liberal governments.

  26. I believe Mike G is absolutely right in claiming that ‘nothing explicitly in the books prohibits the PM (or anyone else) to ask the GG to dissolve parliament.’

    Indeed, some here may remember that in September 2004 Harper, Duceppe and Layton wrote a joint letter to the GG (Clarson) asking her to disregard the advice of the prime minister (Paul Martin) to dissolve Parliament should he engineer his own defeat. The then-opposition leaders asked in writing that the GG consult with them first.

    So Harper himself has in the past asked in writing that the GG not act on the advice of the prime minister.

    Mendes’ arguments are very interesting.

    Have Harper, Duceppe and Layton ever made the text of this letter to Clarkson public? I don’t think so. They then, as now, prefer to act behind closed doors and to ignore the forum provided to them by the people of Canada for this type of discussion: the House of Commons.

  27. This may be useful:-

    However, Mr. Speaker, the Prime Minister has to retain his prerogative to advise dissolution to allow for situations when the government loses the confidence of the House.
    This is a fundamental principle of our system of responsible government.
    Moreover, if the bill were to indicate that the Prime Minister could only advise dissolution in the event of a loss of confidence, it would have to define ‘confidence’ and the dissolution of the House of Commons would be justiciable in the courts – something that we certainly do not want.

    FROM:-
    Fixed Date Elections Bill (C-16) – Third Reading
    Notes for an Address by the Honourable Robert Nicholson Leader of the Government in the House of Commons and Minister for Democratic Reform

    http://www.democraticreform.gc.ca/eng/media.asp?media_category_id=1&id=1392

  28. What the hell powere does this idiot liberal professor have??NONE..What opinions he has are useless and his biased crap are typical liberal slants.I would like to see him take the Government to court over this if he pays his own legal fees.The first paragraph of bill c16 makes this bill a useless piece of crap.It changes nothing and was only produced to shut up the Liberals who were in panic mode at the time.For gods sake you armchair experts are arguing BS about BS.PM Harper has the power to call an election,its legal and above board,its not breaking any laws, and no one can stop him.And no whiney ass liberal professor knows enough about anything to give opinions on anything.

  29. I heard, haven’t confirmed though, that during the debate in the house over this bill, the GG clause was questioned, and that the Conservatives said that this clause was to be used only in the case that a vote of non-confidence was passed. If that is the case, then wouldn’t Harper reliance on this clause now be tantamount to admitting to mis-leading the house of parliament? In any case he will be breaking the intent of his very own law if chooses to do so, which begs the question, how can we believe any of his other promises or even laws he makes, such as not re-raising the abortion question?

  30. To R Swenson: Interesting, but isn’t a loss of confidence carried out only via a vote of parliament, not on the whim of the PM?

  31. To bert: Really now, he has the same rights of all Canadians, regardless of political bent, and I would hope a duty to, if a law is being broken, to see that the criminals are brought to justice. Isn’t that part of what “tough on crime” is all about?

  32. To Larry Smith: LOL, as far as I can see, anyone who is a partisan for any particular party is looking at things through rose coloured glasses and their minds are indeed clouded over, in fact the more partisan, the cloudier it gets until its pea soup fog thick. Examples of pea soup thick are to be seen on nearly all blogs. As such, anyone who’s into politics, is thus never really truly impartial, myself obviously included as well, here I am writing on a blog on politics. So, accept it, realize you yourself are mind clouded, and live with it.

  33. To Mike G: LOL, I agree 100%, Harper’s law is indeed seemingly pointless. Now, if he would only admit to having made this mistake and admit to wasting taxpayers money and parliament’s time in the effort to getting it passed in the house, then all would be nicely tied up and closed. Now, can we also thus broach some of his other laws in a similar light, as a prescident has been set and agreed to …

  34. Wow.

    A Canadian University professor disagreeing publicly with the Conservative Party.

    Where did they find such a rarity?

    Will wonders never cease?

  35. Using the CBC as a source is like the Conservative Party asking the Toronto Star for a reference.

    Pointless to the point of absurdity.

  36. And Canada’s crack journalists have discovered……..wait for it…..those nasty Conservatives play politics.

    The nerve.

  37. We have a National Journal of Constitutional Law? How come that doesn’t fly off the shelves??

  38. Dr. Erik Dravnieks …”if the bill were to indicate that the Prime Minister could only advise dissolution in the event of a loss of confidence, it would have to define ‘confidence’ and the dissolution of the House of Commons would be justiciable in the courts – something that we certainly do not want.”… to me indicates that the house leader said that reasons OTHER than loss of confidence were allowable.
    As to your specific question :-“but isn’t a loss of confidence carried out only via a vote of parliament, not on the whim of the PM?”…I cannot reply as I do not know.
    Regarding the wisdom of going to the GG, I guess time will tell.
    The bill seems to have in it an “always…except when the PM chooses” nature. Odd to be sure but the house passed it.

  39. Trivial question of no particular import:

    “Where in Bill C-16 does it say you can call a general election whilst four by-elections are days from being concluded?”

    This unfixing of the faux fixed election commitment and that it is was ostensibly intended to obviate, amounts to a censorship of due democratic process……but what the heck…when did that ever concern Harper in the past?

  40. Andrew,

    You should know better than this. And if you don’t, you need only read Patrick Monahan in today’s Globe and Mail.

    Norman

  41. SUMMARY

    This enactment amends the Canada Elections Act to provide that, subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following polling day for the last general election, with the first general election after this enactment comes into force being held on Monday, October 19, 2009.

    That’s the extent of the amendment. It clearly says: “subject to an earlier dissolution of Parliament”, so how would Harper be breaking the law? I wonder who paid Prof. Errol Mendes to start this manufactered “constitutional crisis”?

  42. I just had an interesting trip around the Internet by way of googling Errol Mendes. In all fairness, given his pro-Liberal past, the article should mention that this fellow is a flag bearer for the Liberal Party – I’ve even found past reference to this in McLean’s (Ref: Senate reform Plan April 30th, 2008 (by Paul Wells), where another reader brings forward Errol Mendes healthy donations to the Liberals.

    I for one cannot see anything legally wrong about what the PM is doing, but that’s all we hear in the media and from the Liberals – I don’t believe he’s secretly amended the bill since it was passed, but it consistently reads like he has. Clause 1 is very clear: “…nothing in the section affects the powers of the Governor General…” so did nobody from the media examine the bill in-depth earlier? I guess not.

    Hearing the Leader of the Opposition constantly crowing about bringing down the government and challenging its major platforms and then having an enquiry about, well about just about everything, must be hurting Canada’s image abroad. I’m sure it must be causing internal instability on several fronts as well as he incessantly ratchets up the election rhetoric one minute, the lets it ebb the next. To this end, I can see the PM’s point – this election indecisiveness and petty bickering is bad for the whole Country and he is correct to act if he feels it is better for the Country to call an election. Another, rather huge, point is that the Liberals are leading the Conservatives in the polls – so the Liberals actually have an advantage from the start in this area (if you believe in the polls).

    IMO, I believe the intent of C16 was to stop Majority governments from abusing the system by calling elections when it was strategically suitable for them to do so – not for the sake of the Country – but for the sake of their prolonged existence in power. Not so for Minority governments who are at risk to begin with, and in this case in an undesirable polling position from the outset.

    So what is the real problem then? From the point of the Conservatives, not much as far as I can see, they seem to be acting within the law. However, it does go to show that the Conservatives, no mater how full their coffers, will never be able to match the full broadside of MSM negative attention, and here is the real problem.

    Incomplete stories like this one, by not including Errol Mendes background, can sway public opinion and therefore become part of the story (an election) rather than reporting it. The inclusion of Errol Mendes’ Liberal background in this article would have changed the readers’ conclusion from the story and added some credibility to the author; that I had to research this myself and then come to an altogether different conclusion is testament to poor, if not purposefully misleading, writing.

  43. The MSM is no longer a “Free Press” it’s Corp Owned and the Owners will only publish and Spin for the CONservatives.The USA MSM have Proven this over the Past 8 yrs with the Bush WH. So don’t wonder Why the Corp Owned Cdn MSM doesn’t Inform the Public it isn’t in their Corp. Interests to have an Informed Public. We no longer have Journalists they perfer to be known as “Press gallery Pundits”.

  44. It should not matter what political strips Mr. Mendes is wearing… all members of our society are affliated with some politcal party.

    Again, we are voiding the simple question… did Mr. Harper give up his (PM) rights (in C-16) to advise the GG that his party can no longer govern the country… if so, then only the GG or a non-confidence vote in parliament could effectively cause an election.

    Mr. Harper’s treatment of Canadian law appears no different that of his US counterparts. This is a cynical ploy to control his destiny.

  45. Further to Prof Mendes opinion, unlike most “Laws” C-16 does not proscribe penalties or restrictions in the event the “Law is Transgressed”.

    The only censure possible for “Breaking the Law” rests with the electorate who, by the very circumstances of the law being broken, are asked to confirm or reject through the ballot box the Governing Party who has broken the law.

    What relief could Mendes seek if he were to proceed as suggested? Nothing restricts the PM from requesting a writ be dropped. If the GG refuses to accept that advice, nothing prevents the PM from resigning office; there are NO MECHANISMS TO FORCE a Government to remain in power against its wishes.

    Faced with these two outcomes, the GG may invite another Party to form a Government or she may decide to accept the PM’s advice to call an election.

    So returning to Mendes dilemma, he would need to convince Federal Court that a Government, once summoned by GG to form a Government, is prevented from ever resigning save for the circumstances of a vote of non-confidence or the expiration of the term envisioned by C-16. Further Mendes would need to convince a court that the electorate should be denied their right to pass judgement on the decision of the Government to advance the date of an election before that specified in the C-16 regulations. For the courts to issue an injunction against the proceeding of the election requested in contravention of C-16, Mendes would need to demonstrate the irreparable harm that may be suffered by the electorate should the election proceed in advance of the date specified by C-16. The remedies he would seek would need to include enjoining Elections Canada from preparing for or holding the election on the “early” date specified by the GG.

    I doubt the courts will want to go fishing in these waters but if they do, I suspect PMSH will relish the opportunity to deal with this type of development.

  46. The real problem is that the Conservatives themselves said otherwise, Barry. From the link R. Swenson provided we also have these quotes from Justice Minister Rob Nicholson:

    “All parties agreed with the principle that the timing of elections should not be left to the prime minister”

    “Rather than decisions about election dates being made behind closed doors, general election dates will be set in advance as prescribed by this bill.”

    “What we have, Mr. Speaker, is a situation where the Prime Minister is able to choose the date of the general election, not based on what is in the best interest of the country, but what is in the interest of his or her party.
    Bill C-16 will address this problem and will produce a number of other benefits.”

    “Instead of the governing party having the advantage of determining when the next election will take place – an advantage they may have over the other parties for several months – all parties will be on an equal footing.
    And it’s only fair that each party will have equal time to prepare for the next election and know when it will be.” (Harper’s most recent television ad come to mind, anyone?)

  47. Mr. Coyne.

    The Official Opposition in Canada constantly threatens to defeat the government then runs away from every vote. In the meantime, opposition parties use their majority on parliamentary committies such as the ethics committee to only ask their witnesses to appear, but block witnesses that the Conservatives wish to invite. Do you consider this fair and appropriate? Is this not ‘disfunctional’?

    The fixed elections date bill can only be truly applied to a majority government which has control of the House and the parliamentary committes. By its very nature, a minority parliament makes a fixed election law redundant.
    You apparently think that opposition parties should have carte blanche to conduct themselves however they want in a minority parliament, yet you expect the government to be impotent in regards to any response.

    Using Errol Mendes as a reference is certainly questionable. This well-known Liberal apologist and financial backer should not be portrayed as as an expert since he is primarily concerned with supporting the Liberal agenda. He is not credible-period!

  48. Ref: iPhone “It should not matter what political strips Mr. Mendes is wearing” Maybe not, maybe no – but regardless, what political leanings a person wears (Conservative or Liberal) they should be made clear in the article if they are significant – I mean the guy was appointed to former Prime Minister Paul Martins Privy Council Office – that’s a fairly significant political stripe!

    How on earth can you expect an objective statement about the Conservatives from a committed Liberal? If this article had started “Long time Liberal supporter and former member of the Privy Council Office of PM Paul Martin, Errol Mendes thinks …” then I would take a whole different view of this piece – it is only responsible for the author of the article to mention it (IMO)

  49. Mr. Cicero, the current government of Canada makes motions on any of its bills Confidence motions, thereby stifling any true debate or compromise to be had one them. They clog committees with a book of dirty tricks which includes the chair of the Procedure and House Affairs committee hiding from his job as chair because he does not agree with the democratic principle of “majority rule”.

    In addition, the current government made no mention, nor does the bill itself mention, any reference to it applying only in majority governments. In fact, their frequent references as to how the Bill allows for loss of confidence to occur shows that they were very aware that it would also apply during periods of Minority governments.

    I do not argue that the conservatives will be breaking the letter of the law, but the spirit of the law and their stated intent of the law certainly did include both minority and majority governments. That they have changed their minds now when it is politically expedient shows that once again the Conservatives are no better, nor different, from the Liberals — with the exception that the Conservatives promised they would be.

  50. :– hi Barry6176

    OK, I do understand your point… and I can accept that, but but, this is sort of a technical dicussion and I am thinking that partisanship interests should not have a bearing on the outcome.

    I do not know about these things, but I am very much enjoying learning about this.

    :– stephen p

    Also thanks for your explanations. I am taking this in.

    ~

  51. This is whining, I know…

    But everyone that is thinking about this issue now, knows that we are being ‘hood-winked’ here. We all of Canada’s big guns, politically speaking providing commentary on this topic.

    We have Mr. Harper attempting avoid parliament.

    This is just dis-honest. Is there not some way to just deal with this dishonesty. Set aside the technical aspects of this issue and deal with Mr. Harper’s complete disregard for Canadians?

    The expectant answer will be have an election and this leaves an unpleasant taste in our collective mouths.

  52. Its not illegal. Harper IS having a crisis. Only thing is we’ll be the last to know what it is.

  53. Ridiculous. Usually you’re bang on Mr. Coyne but not this time.

    The law was always intended to take the power out of the PM’s hand in a majority. There’s a clause right in the law that still give the GG the power to dissolve and it was specifically put in ther for minority situations.

    Honestly, this isn’t that complicated. It’s time for an election, the House and the Committees are a joke and all parties are to blame. Legislation directly related to the throne speech (that passed) is going nowhere thanks to the Senate and this is the longest serving minority in history.

    Don’t buy the Liberal talking points Mr. Coyne.

  54. “The law was always intended to take the power out of the PM’s hand in a majority.”

    That’s crap. Read the Act. The changes have nothing to do with balance of power. Nothing.

  55. With respect to the contention that the prof having been Privy Council and not PMO and therefore impartial, consider – hired by Martin, fired by Harper.

  56. stephen p, great post.

  57. If the conservatives want to avoid parliament under their own rule I think the opposition should facilitate that…… an opposition coalition of the Libs, Dippers and (and now a less than desirable, but still) Green….a coalition would potentially be stronger then the non-majority majority approach has been and Canadians might get more of the parliament and government they want (emphasis on collaboration over contestation)….

    I think that the opposition parties could hammer out at least a short-term 6-12 month feasible policy agenda… the environment; restoring some of the ongoing Harper arts cuts; undoing some earlier Harper cuts including the court challenges program; reversing the movement to industry self-reg in food inspections; fortifying Insite and a broader economic strategy that balances growth and human interest; setting out an agenda for aiding Aboriginal people (perhaps restoring the Kelowna accord; etc. etc…..

    in the absence of this we are destined to be in the exact same place the morning after the election…the margins will be about the same…and unless Mr Harper has been sitting on a well-developed agenda Parliament will still be focused on bickering on the same menial issues with the same narcissistic personality wars at play….I think this would be the most beneficial for Canadian democratic governance.

  58. Hi Larry…I appreciate this to be the case…notwithstanding this as far as accuracy goes in the earlier discussion…he worked at PCO.

    While it might be that he is a total hack…we don;t actually know…though he seems to have some bonafides (editor of the most salient journal on the matter)…and lots of individuals partisan or not serve at the pleasure of the sitting PM

  59. Geiseric the Lame – I was of course referring to the power to call an election when the situation suits the PM in a majority. Taking that power away from the PM (in a majority) is the ENTIRE point of the fixed election act.

    seaandthemountains – a Lib, Green and NDP coalition would be 126 seats, 1 less than the CPC. Even if they could form a majority together with an opposition coalition there would be little chance of it happening let alone when the coalition would still be the 2nd biggest party in the House. I’m not sure what the GG’s justification would be for allowing such an unusual move considering that this is the longest lasting minority ever.

  60. Sorry Tony in haste omitted 2/3 independents (Casey and Thibault the two most aligned with the proposed agenda in my post) …not sure if this alone changes your opinion or not but if not…

    but the GG does have a responsibility to consult to determine if any of the opposition leader can legit claim to govern with confidence… if (and admittedly this is a big if) I think she would have to oblige.

    like i said it is a big if: i just think it is the most desirable outcome (avoids the GG having to weigh a decision that technically has her choosing between outright refusing the PM or deciding to contravening a standing Canadian law) and the one I am rooting for

  61. Layton would never agree to it. It would be his demise.

  62. Boy, it must be nice being the leader of the Green Party,and on short notice, while in BC attending a wedding, skipping the speeches, and flying red-eye at the earliest possible time all the way back to Ottawa to hold a hastily called press conference, one presumes with male prop in tow.

    Nice, because as I we are often told by the Green Party Leader, air travel is one of the most environmentally damaging forms of transport in terms of GHG release.

    How much do you want to bet that the press conference prop soon flies back to the Sunshine Coast, and EM soon flies back to BC to pick-up her BC tour where she left off?

  63. oops, wrong blog –

  64. Geiseric- maybe but maybe it depends what he got out of it…he has survived propping of the LIbs once so far (martin budget)….also has seen willing to pony up to the Tories (which seems like a greater stretch from his base).

  65. If Layton hasn’t learned by now that sidedeals aren’t worth the bother he’s thicker than I thought. He’s not feeding the Conservatives, he’s attacking the Liberals. It’s what he does.

  66. fixed election dates are a good idea but only in a majority parliament. In a minority, the law simply gives the opposition the same opportunity to abuse power as the government had without the law.

  67. Pete, that’s crap.
    There are limited opportunities for parliament to declare that it does not have confidence in the government, even in a minority parliament. Why do you think Mr. Harper was so incensed when Martin wouldn’t leave on his say-so? I mean.. other than it being Harper and his say-so..

  68. I kind of agree with Pete there. Harper was incensed with Martin during Martin’s brief tenure as PM because he was avoiding at all costs any opportunity for the then opposition CPC to declare non-confidence. Martin was terrified to go to the electorate just as Dion is now. Harper never has been and the Libs have had ample opportunity and have continually allowed Harper to govern.

    seaandthemountains – I see what you’re saying about the independants, though that does makes your already large IF even bigger. And the GG wouldn’t be contravening the law, it’s a minority. Honestly people, minority rules didn’t change with the new fixed election date law, it’s meant for majorities. Geiseric is right, Layton wouldn’t go for a coalition where he is the third most powerful leader. Though he is making ATM fees his main talking point so maybe I overestimate his political accumen.

  69. Or to be more accurate, the fixed election date law didn’t change with a minority.. considering that’s what they brought it in under, and considering they were quite clear when they were speaking about it that it was meant to apply to a minority.

    Go ahead and read the Hansards Tony. See what they were saying. The definitely were not saying “But this will only apply during a majority government”, they were quite clear in saying that it would apply while the ability of the House of Commons to lose confidence in the leading party was preserved. If it wasn’t meant to apply to minority governments, why even talk about that hm?

    I’m starting to understand Canadian Cynic’s rather acerbic tone. They amount of flat out lying that conservatives do is scary.

  70. Doesn’t this question of whether or not the PM has the right to ask the GG to dissolve Parliament, and whether or not she has any convention backing her up should she choose to refuse to do so (she certainly has the power, that much is clear) show just how nutty our Constitution is in the first place? Seems to me it no longer works. Period. I note that recently France amended its constitution – with minimal fuss – so that it might work better. It would be nice if Canada were a mature nation; mature enough to amend its Constitution without risking a national crisis.

  71. Assume the GG denies Harper’s request/recommendation for dissolution. What happens next? Harper resigns and the GG has to call in Dion to become PM. Now he has to get the confidence of the house. For that he has to keep both the NDP and the BQ onside for every confidence vote. Does even delusional Dion think he can do that?

    End result? An election anyway.

    [This is what happened in 1926, by the way, after Byng refused King’s request. The rules were different in those days, and upon taking the PM slot, Meighen had to resign his seat and run in a by-election. King slipped through a non-confidence motion and the country went to the polls after all. King won.]

  72. Perhaps more important about debates about the legality of the election call, is the issue of Harper straight-up lying to Canadians, especially with the preposterous idea that the law only applies to other governments, not his. Anyone who honestly buys this line is a partisan hack. After all, Harper said, in his very own words, that this law applied to his government, and prohibited the preemption of a Parliament by any means other than a failed confidence motion. Either he lied then or he’s lying now.

    Worst of all, he thinks he can get away with such a blatant lie. I think that’s what’s most galling…

  73. I don’t really get it, I must admit. Harper’s tactics, I mean. Why not wait until the Fall, when he’ll lose a confidence vote? That way he would get to campaign as the victim AND he would get to avoid this constitutional schmozzle / tangling with his own law. Are the by-elections that important? Is the Couillard book going to be that damaging?

  74. It’s not the by-elections, and I doubt it’s Couillard’s book. There remains, however, the in-and-out court case by Elections Canada, which I expect will likely have some conservative campaign managers being sent to jail for a couple months. There’s no way he wants that to happen mid-campaign.

    In addition, there’s the Cadman tapes, Harper tried to bluff the liberals into a settlement to keep them from using those tapes. Unfortunately for him, “Not-a-leader” Dion didn’t blink and it’s gone to court. If the independant expert concludes it’s legit, he has some ‘splainin’ to do about why he didn’t act to stop an offer of “financial considerations” to Cadman in exchange for a vote — normally known as bribery.

    Then on top of *that* his constant “Not-a-leader” campaign seems to be hitting the point of diminishing returns, because Dion’s leadership numbers have started to climb upwards. Libs say that’ll only improve once people start to hear him speak. I’m still not sure that I buy that one,but we’ll have to see.

    Finally, more details are coming about comparing the proposed Liberal Green Shift to the Conservative and NDPs environmental plan.. turns out the experts say either one is going to cost us. The difference is that the one by the Lib’s (and the Greens, to be fair, since they came out with it first) tries to help out those who will be hurt most by the increases in cost. The conservative and NDP plan leaves people fending for themselves. I find that if I actually talk to someone about the Green Shift plan, if they’re willing to listen at all, usually end up either thinking it’s not bad albeit with some reservations, or approve.

    So I don’t think Harper is going because he can win big now.. heck, even he says it’ll probably be another minority. I think he’s going because if he waits, things will only get worse.

  75. I welcome the call of this election ONLY to trigger the Professor’s court case challenging it’s legality.
    The resulting case will clarify who/what holds the Crown’s Executive Power (BNA Act ss. 9-16) and who is simply the leader of the largest ‘bunch’ in the lowest ‘order of gov’t’ within our One Parliament (s.17).

  76. This is just a poor column in general. I say that only because of the headline – poorly chosen, Andrew.

    There’s no case in your article or the Moscow Citizen to suggest this could be illegal in any way, shape, or fashion. Illegal in this sense sounds like ‘illegal war’ in the American-communist sense. (Do we have a world government yet?)

    If Stephen Harper chooses to ask the GG (no one suggested he’s doing anything other than that) and she agrees to dissolve parliament, that’s her call. If he asks and she shows some form of partisanship (gratitude for Paul extending her already-past-its-due-date career?) by way of denying his request, that’s also her call.

    To suggest anything here is illegal is just irresponsible journalism.

  77. Robert Ede, what’s unclear about the current arrangement? My understanding was that the leader of the largest bunch in the House got to be PM and he managed the Executive on behalf of the Crown. Who disputes that?

  78. Harper’s law is clear: the Governor General shall not be advised to call an election. Since only the Prime Minister may advise the GG in this matter, the law makes it illegal for Harper to ask her to call an election, The law does not constrain the GG, but it does constrain the PM.

    But is the law constitutional? Does Parliament have the right to constrain the PM’s prerogative? Does the GG have the authority to interpret constitutional law? Should she side with Parliament or the PM on this question?

    The GG should refer the matter to the Supreme Court if asked. If the law turns out to be Constitutional, she should block an election and reconvene Parliament. If the law is unconstitutional, she should call the election. It is the GG’s place to follow the law and convention, not interpret or establish them.

  79. And our ancestors landed on the beaches of Normandy on DDay and paid the ultimate sacrifice to…have we forgotten…

    wasn’t it to liberate the European peoples, to restore their respective democractic states and free them from the oppression of the self-proclaimed “ruling elite”.

    Obviously if the early election call is contrary to the law, the Canadian people would be equally within their rights to refuse to participate in same…now that would be interesting.

  80. There are certainly lots of opinions on this on both sides. There is not doubt, however, that it is against the intent and spirit of the Act. There’s a good website on this: http://www.illegalelection.ca

  81. I would like to know who is going to represent voters like myself that were morally unable to vote by participating in an illegal act. My vote was taken from me in absolute violation of my Constitutional RIGHT TO VOTE. Democracy Watch, with Peter Rosenthal filed an action T-1500-08 in the Federal Court. The material contained in their filings are great reading in their arguement as to the legal status of the call of the election. I have asked that they pigiback my individual problem with my rights being violated for the same reason and argument. I have not had any responce from them. Also through the Canadian Human Rights Commission in Halifax I have been given the idea that they are unable to help. Who can? I am a semi-retired Taxi driver and can”t afford to take the Government to court on my own. Is their help or suggestions out there? Or; are we ALL to accept that the Prime Minister, Governor General of Canada, along with everyone else that participated in the election are above the law.

  82. Part 1

    Two Party Paradyne Elitist Bilderberg Trick

    The Elitists hone two candidates in their employ and train one to be a Left wing Candidate a Liberal or Democrat then take the other and hone him or her to be a Right wing candidate a Conservative or Republican! Via the elitists scientific study of mind control methods and psychology these two candidates are trained to do the right moves at the right time in order to be elected in various countries wherby they will arrange financial benefits and various controls of these countries for the financial and power gain of the Elitists!

    Let's say the elitist boss in this example is named David from the Bilderberg group! And the Left wing candidate is Obooba the Liberal or Democrat and the Right wing candidate is Sarah Conservative or Republican!

  83. Part 2
    Now because the elite are the super wealthiest on earth they have lots of Corporate Lobbying and money power and they are able to supremely promote and and create great PR and convincing extraordinary Press Kits for these two candidates which enables them to gather much credibility among the voters and are heavily promoted by David and the elitist organizations to become the Dominant candidates for the election!

    Now David the Elitist boss really doesn't care who wins between these two as both candidates have been honed to perfection to be able to produce results for all the Elitists and Bilderberg Group and David their Puppet Master!

  84. Part 3
    Now these two candidates can come out on the scene in an election competition and impress their voters!

    So if Liberal – Democrat Obooba gets voted in as Prime Minister or President depending on the country, he will provide and perform nicely first and foremost for David and the Elitists! In spite of the oath he has taken to perform to the best of his ability for his country!

    Should Sarah Conservative – Republican get elected as President or Prime Minister depending on the country, she will provide and perform nicely first and foremost for David and the Elitists, despite the oath she has taken to perform for her country!

  85. Part 4

    In this scenario regardless of which way the election goes – the Elitists win!

    The head of the Elitists may not always be from The Bilderberg Group, they could also be from one of these affiliate organizations: Council on Foreign Relations ( CFR ), Trilateral Commission ( TC ), Federal Reserve, International Monetary Fund ( IMF ),

    World Health Organization ( WHO ), United Nations

    This explains the basic procedure for the Left Right Wing Paradyne Election game very basically so that it is easy to understand what is happening!

  86. Part 5
    The Illuminatti play this game of divide and conquer in most of their ploys!

    Eg; man against woman, Black against White, Israel against Iran, England against Germany, Gay against Straight, Palestinian against Jewish etc. Throughout almost the last 100 years the Elitists have been manipulating these problems and wars around the world for their financial gain and power! They love to keep people divided and enemies as this all goes toward the Elitists benefit – if people won't join together to help one another the Illuminatti Elitists will always be able to defeat the citizens of the world!
    Paul Revere and Friend Btok

  87. Part 6
    Watch out during the next Canadian election , we believe the Elitists may try it here as they did in the last American election! USA ended up with a Fascist, Marxist President and Government that sympathizes with the Foreign Off-Shore Bankers! Help keep manipulations out of Canadian politics!

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