Does it Matter *Why* He Wants an Election?

I’ve been spending more time than I’d like trying to sort through this fixed-election stuff. Over at his stuffily-named “Andrew Coyne’s Blog”, AC accuses me of actually cheering Harper on w/r/t ignoring the fixed-election date. True enough. My reasoning is a bit elliptical on this, but it boils down to this: I hate the fixed-date amendment, and I think that if this parliament makes it to the fixed date it will set a precedent that I believe to be constitutionally dangerous in the long term. So, I think the short-term political damage done by ignoring it is mild compared to the constitutional damage that could follow if it becomes entrenched.

That said, I’ve been more than a little intrigued by the to-and-fro between constutional experts. Required reading for today’s class is Errol Mendes’ piece in Thursday’s OC arguing that the GG could well deny Harper dissolution, and Patrick Monahan in today’s Globe replying that, no, actually, she can’t.

Let’s start with Prof Mendes, who says that SH is claiming the right to call an election on two grounds, one constitutional, the second political.

1. The constitutional argument. Harper is arguing that since the fixed-election amendment expressly says that nothing in the amendment constrains the powers of the GG to grant a dissolution, then nothing constrains the powers of the PM to ask for one either.

Hang on, says Prof. Mendes. Since the fixed-election amendment basically amounts to a statutory promise by the PM not to ask for an election, then while the GG’s power to grant a dissolution might remain, perhaps the amendment does constrain the Prime Minister’s ability to ask for one.

But that makes no sense. Since the GG only acts on the advice of the prime minister, any statute that limits his power to advise her must, of necessity, indirectly limit her powers. And that’s unconstitutional –  which is exactly what Prof Monahan concludes in today’s Globe.

So here is the dilemma: If the fixed-election amendment is effective in limiting the power of the PM, it is unconstitutional, and if it is constitutional, it is ineffective. Which is another way of saying that the fixed-election amendment was always a political gambit, not a legal limitation, which is why the best remedy for this is political, not legal.

2. The Political argument

There’s another argument for why the GG should grant dissolution, and that is that parliament has become dysfunctional. Harper has been waving this one around for a while, and the critics are scoffing. As Prof. Mendes points out: First, Harper has actually been able to govern quite well (to the extent that this parliament has frequently resembled, as Wells puts it, some weirdo European “Grand Coalition”).  Second, to the extent to which parliament is dysfunctional, it’s because Harper himself has made it so.

It is the transparent self-servingness of Harper’s political argument that most enrages those who are opposed to him getting his dissolution. Indeed, Coyne’s lovely column on the issue focuses almost entirely on this aspect of it — that parliament seems to be functioning quite well.

But my response is: SO WHAT?

That is: Who cares why Harper wants an election? Should whether he get his dissolution or not hinge on the question of why he wants one? My view is that, with the exception of the most bizarre or exceptional circumstances, it is simply not for the GG to judge the merits of the Prime Minister’s request.

I can already hear Andrew Coyne’s reply: “But Potter, the fact that Harper passed a fixed election date amendment just IS such an exceptional circumstance!”.

Sorry, but I can’t agree, for reasons both legal and political. For the legal reason, see the dilemma hilighted in section 1 above.

The political reason goes to the heart of why I hate the fixed-election amendment. I happen to think that one of the great virtues of parliamentary government — perhaps the one virtue that marks it out as superior to the American system — is that it allows the government of the day to go to the people over a question of national significance. I think that the threat to take something to the people, and the ability of parliament to take the government up on that threat, is a fantastic democratic instrument.

Curiously, Harper has such a question at hand: Senate reform. In her column in today’s Globe, Jane Taber says that senior Tory strategists are suggesting that, for all his ability to get his agenda through, Harper has seen no motion on the key policy of Senate reform. Frankly, if Harper is serious about reforming the Senate, I think an election is not just desirable, but mandatory.

So why is Harper talking up parliamentary dysfunction instead of Senate reform? I don’t know. But frankly, I don’t care. The mere fact that he wants an election is good enough for me, and it should be good enough for the Governor General. It might not be good enough for the rest of you, and for that you are invited to cast your ballot accordingly.




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Does it Matter *Why* He Wants an Election?

  1. I hate a lot of things Harper has done, including eroding Canadians’ confidence in our government and our laws. So, sure, one may hate the law Harper wrote and not care that he breaks it. One may not care if he breaks other laws as well, including our laws meant to guarantee fair elections. It seems to me that this is exactly what Harper wants. There are plenty of corrupt countries. Why do you want Canada to become one of them? I understand why Harper wants that. But I don’t understand why you, Mr. Potter, do.

  2. The mere fact that he wants an election is good enough for me…

    Wow. Just…wow.

  3. The reason that he has not used senate reform is that most ordinary Canadians have not the slightest idea what the senate does. It is not a vote-winner, except maybe in Alberta, because of Alberta’s senators-in-waiting trick where they elected senators as a political point. So perhaps in Alberta, the word “senate” will stir up peoples’ passion. But Harper already has all the votes in Alberta.

    The fixed election date law has never made any sense in the context of a minority government. Because all parties must rely on each other to get laws passed, granting some of them the right to bring down the government, but not the party that is attempting to set the agenda, that makes little sense. If the governing party decides that it cannot accomplish what it feels is necessary, then they should be able to go to the people to obtain a mandate (or to have the people reject their mandate).

  4. Here’s the irony: Harper’s “senate reform” proposals – legislation imposing term limits and mandating elections – fall into the exact same constitutional vs. political (or substantive vs. symbolic) black hole as the fixed election date. In other words, if hypothetically his bills pass and again hypothetically 8 years later Harper decides he wants Sen. Fortier to stick around for another 10 years as an unelected Senator, assuming the constitution had not been amended re the senate, how could his legislation in any way stop him?

    Well, politically it could – but Harper has shown that his principles are flexible in all sorts of ways – but legally? If I buy your argument re fixed election dates then his entire positive agenda for this campaign is little more than symbolism….

  5. sf, if you think it doesn’t make any sense that only the opposition can bring down a minority government under Harper’s new law, then take it up with him. He seemed to think it made a lot of sense a couple years ago. Or perhaps they were simply spinning lies for political gain.

    “It states that the third Monday of October 2009 will be the date for the next general election unless of course by some strange occurrence the combined opposition determines that it wants to have an election before that date.” [CPC MP Lukiwski describing the new law in 2006]

  6. Andrew = I say a loud and resounding YES! As Harper has already stated many times before the intent of his statute was to put a damper on majorities calling elections when the numbers were convenient as the Liberals have done countless times in the past. Up to now the opposition parties have had a nice little free ride on this while they waste taxpayers money on baseless accusations, pseudo-scandals and a few circus committees that do little but haul ex-mp’s into chairs and play the worst sort of gotcha politics on our dime. If the PM wants to have the confidence of parliament and get down to some serious business here I for am all for an election as it does a body good to sweep out the house on occasion. Last but NOT least why should the americans have all the fun? Once the writ is dropped canadians love elections we only grumble if someone spends too much time threatening one and yet never seems to get around to it = sound familiar. See you at the polls I hope!

  7. So, Wayne, are you saying that Harper and his MPs were simply lying in 2006? It is all there in Hansard, and, yes, they made it clear that it applied to minorities, including “the present government”. But, of course, you already know that, or why else would they have set the date of Oct 2009 for this government, which is a minority government. Why don’t you leave the spinning to Harper? He’s good at lying.

  8. “As Harper has already stated many times before the intent of his statute was to put a damper on majorities calling elections”

    Yes we have seen him saying that many times this last… week.

  9. Actually, I think I have to agree with you Andrew…in some there is really no reason to care what the reasons are why Harper is choosing to call an election…assuming of course that he really does drop the writ…I’ve just gotten just a little tired of the “I’m swear I’m gonna do it! I swear I will! See? See? I’m walking to the door…and I’m putting my foot out…I swear I’m gonna do it!”

    But the bigger issue should be the BS that he is shoveling to the media to justify what amounts to a big show of vanity and insecurity i.e. “No one wants to play my game, so I’m gonna just wreck everything to show you”.

    The utter disregard this guy has for law and for parliament is breathtaking, and particularly ironic coming from a party that likes to cloak itself under the rubric of the “law and order” party.

    The real question should not be about Harper, but rather, whether the media and the Canadian public will continue to buy into this charade and prop up this ghastly effigy of parliamentary democracy that Harper and co. want to impose on us.

    Austin

  10. I can’t speak for all Canadians but for the record my confidence in our government has increased with Harper, our laws are many and it would seem that ‘many’ were broken with the last gov’t and his crew.
    Catherine if you want to bring corrupt countries into this…dear please don’t ever forget that ours, has had, a bad taste in it’s mouth since the sponsorship scandal.

  11. Andrew,
    As much as I often find the arguments made by your namesake, Mr Coyne, to be compelling, you are very mush spot on on this one. Kudos to you.

    I have a question. Everyone is assuming that the election will be on October 14 based on the PM calling the election sometime between September 2 and 7. But this date poses problems for the Jewish community.

    What if he calls the election on Sepember 1? Can the election take place on October 6?

  12. Whatever the shenanigans and the possible flouting of a law that seems pre-designed to be legally flouted, any nonsense that results in the people getting their say sure beats the alternatives to be found in Catherine’s “corrupt countries.”

    If you think Harper deserves to be punished for this stunt, you’ll get your chance. If you want to have a say on some other issue, you’ll get your chance. If you don’t vote, you don’t care.

  13. Rusty, if your confidence has increased, you haven’t been paying attention.

    Day 1 of being elected, Harper broke his promise to not put unelected partisan appointees into the senate when he appointed Michael Fortier.

    He said how the Liberals taxing income trusts revealed what they felt about the elderly and it was something that the conservative party would never do. Then they got elected and put a tax on income trusts.

    He promised Saskatchewan and the Atlantic Provinces that their Equalization deals would not change because they’d found oil. Then he changed their deals.

    He promised that he would insist the US comply with the NAFTA rulings on softwood lumber, saying specifically “You don’t negotiate when you’ve won.” However, apparantly what you do when you’ve won and you’re Stephen Harper, is bend over and let them screw the Canadian Lumber Industry out of a billion dollars. That’s billion.. with a “b”.. and then tie it into an agreement which guarantees that they cannot be too efficient, because if they are, the Canadian government will tax the efficiency out of them so that they can’t compete.

    He promised to protect sovereignty in the arctic, but once elected, he downgraded the ice-breaker/fighting class ships he promised into coastal patrol and supply ships, then cancelled them altogether.

    He promised to work with the provinces to establish guaranteed wait times. He didn’t meet with the provinces for 2 years. Do you have a guarantee for your wait time? Neither do I.

    He promised to fix the fiscal imbalance. His “fix”, once elected, was simply to declare “There is no fiscal imbalance”.

    He promised an accountable, transparent government. Yet he has whistle-blowers fired and vilified for not supporting the government, he has his own party members go into hiding instead of doing their job as the chair of the Procedure and House Affairs Committe and he attempts to bog down the ethics committee using methods that he has documented and given to his party members in a “book of dirty tricks”.

    He promised democratic reform, by ensuring that political games would not be played with elections after Chretien and Martin’s games. Yet despite that, he makes every motion in Parliament a confidence motion, threatening to bring down the government if he doesn’t get his way — no compromise allowed, and now it appears he’s playing games with his own fixed election dates going directly against the spirit and the stated intent of his own legislation.

    As if that’s not enough, our economy is hitting recession faster than that of the states, despite our massive oil exports. And he took us into deficit for a couple of months with a tax cut that average Canadians don’t notice when they’re buying tainted sandwich meat (But I’m sure the oil execs that he spent all August meeting with certainly do when they buy their second Jag.)

    And that’s without talking at all about his legal attempts to silence people from pointing out that he knew financial considerations were being offered to an MP in exchange for a vote to bring down the government. In most third world countries, we call that bribery. Here, he calls it creative campaigning.

  14. T. Thwim,

    Pretty good summary.

    Now imagine what Harper and the CPC would do with a MAJORITY.

    Shudder.

  15. TT, you forgot that, to keep his promise on the first GST cut, Harper RAISED income taxes. He raised them. HE raised TAXES. Oh, he’s since brought them back down, but each time he was hoping it would be part of an election-trigger. So after a few of those false starts, the Canadian economy has no buffer zone in its financial cupboard.
    No doubt the next mandate will include a lot of axing of programs, but that’s for the next surprise.

  16. I believe Stephen Harper is the most unemotional Prime Minister Canada has seen in my 43 years of life. I think back to the days of past Prime Ministers and the one’s I remember the most, are the people who could crack a smile, a joke and handle any situation, placed in front of them! Humanity is needed to run this country and a robot just won’t do. So I think we need and election and a new Prime Minister who can smile, run Canada and dance in the streets with the people.

  17. Ann – humanity and some humility might be a nice touch.

    Andrew,

    I really enjoy your writing here and more often then not find it insightful….but this post baffles me.

    “The mere fact that he wants an election is good enough for me, and it should be good enough for the Governor General.”

    Flawed or not, the Elections Act is a law and beyond strident partisan realpolitik, its spirit was clear (as is accepted by Wells as well)…. Doesn’t this willful disregard for the law lead to questions like:

    Are there any other laws that the PM should be able to ignore at will? Does only the PM get that privilege? Or, is it extended to us all? Does the same standard (I/he/she/they/you “wants” to) apply?

  18. I’m with Andrew to be honest.. I don’t understand how people can get upset at a law that doesn’t even make any sense.

    I think the law should be criticized. Why pass a law that cannot be binding and has only political effect?

    It was all show, and no impact.

    Like Andrew has said previously, we’ve always had a fixed election date in the constitution. So what’s the big deal.

    It was all politics, and now it’s biting the conservatives in the ass. Not sure it’ll have much of a real impact.

    Maybe they’ll rethink some of their other positions and realize that the current Canadian political system isn’t all bad just because it doesn’t match the US system.

  19. T. Thwim

    Hello

    Certainly PM Harpers performance has been such that everyone has the highest expectations of him. When he can’t get all of his programs completed successfully, or without compromise, (with a minority government – in two years) then we all feel disappointed. However, I have been paying attention and PM Harper does have a success or two to his credit (I’ve made some counter-points to yours way-way down):

    (1) Accountability Act — passed April 11, 2006

    (2) Afghanistan mission extended to 2011

    (3) Age of consent from 14 to 16 effective May 1, 2008

    (4) Agent Orange compensation package of $96 million –$20,000 to all veterans and civilians who lived within 5 kilometers of CFB Gagetown in N.B. between 1966 and 1967 with illnesses associated with exposure

    (5) Apology to Native people by Government of Canada on June 11, 2008 for residential school abuses

    (6) Automative Innovation Fund of $250 million over five years (or $50 million a year) to developing greener, more fuel efficient vehicles (scroll part way down this page for source)

    (7) Border guards armed

    (8) B’nai Brith International President’s Gold Medallion awarded to PM Stephen Harper

    (9) Canada Employment Credit of $1000.00

    (10) Child Tax Credit ($2000 for every child under 18)

    (11) Chinese Head Tax — government apology on June 22, 2006

    (12) Chinese immigrant provision of $20,000 to every individual and/or surviving spouses who paid the head tax plus a $24 million towards an “historical recognition program”

    (13) Community Development Trust — $1 billion to help communities suffering from manufacturing and forestry industry slowdowns and unemployment

    (14) Debt reduction of $10.2 billion in 07/08 budget

    (15) Environmental plan “Turning the Corner” released on April 26, 2007 to regulate greenhouse gas emissions and air pollutants while balancing the needs of the environment and the economy, plus update on March 10, 2008 following public consultation

    (16) Fixed Election Dates — An Act to Amend the Canada Elections Act (Bill C-16), passed May 3, 2007 (Link) is an Act primarily for majority governments since minority governments can fall at almost any time when the opposition express a lack of confidence in the government.

    (17) Food Labeling Initiative — to clarify and modernize labeling on food products, including “Product of Canada” and “Made in Canada” claims – to be fully in effect following consultations by December 31, 2008

    (18) GIS — Guaranteed Income Supplement for seniors changed to allow for higher earned income

    (19) GST — Goods & services tax cut from 7% to 6% and then to 5%

    (20) Health Canada Website launched for parents on food and children’s products that have been recalled

    (21) Hep C compensation redressed (Link re latest court rulings that clear the way for national $1 billion package)

    (22) Homelessness Partnering Strategy – $269.6 million over two years from April 1, 2007 to March 31, 2009

    (23) Hydrogen Highway — Created a $1.5 billon trust as part of a network of partners for hydrogen fuelling stations for fuel celled buses and vehicles in British Columbia

    (24) Immigration & Refugee Protection Act changes — to shorten time taken to immigrate to Canada — fully approved by parliament on June 18, 2008

    (25) Income splitting for Canadian seniors and pensioners

    (26) Indian Residential School Settlement Agreement

    (27) Indian Residential Schools Truth and Reconciliation Commission established (IRSTRC) with Justice Harry Laforme as Chair — with commission to begin on June 1st, 2008

    (28) Kid’s sport tax credit (up to $500 per child)

    (29) Land Claim Agreements — a total of 54 were settled up to and including 2008

    (30) Lobbying Act — passed July 2, 2008

    (31) Manley Report approved (Report)

    (32) Medical Alert Bracelets for Children — free of charge

    (33) Military spending increased to a post-war peak, including the delivery of four C-17 Globe Master strategic airlift aircraft

    (34) Money laundering crack down on organized crime and terrorists

    (35) Nahanni National Park expanded by 5000 square kilometers

    (36) National Museums — $98 million for capital infrastructure projects over five years, with some urgent repairs starting immediately
    (37) National Vehicle Scrappage — an environmental program by “EcoAction” to get vehicles 1995 or older off the road — started immediately and to be fully in effect by January 1st, 2009

    (38) Nunavik Inuit Land Claims Agreement

    (39) Ombudsman for Victims of Crime established

    (40) Ontario-Canada Infrastructure Agreement for $6.2 billion starting immediately

    (41) Poland — Youth Mobility Agreement signed on July 14, 2008 that allows youth from either country to work and travel for up to one year

    (42) Public transit tax credits

    (43) Quebecois as a nation — a motion to confirm Quebec within a united Canada (Link)

    (44) Randle Reef Clean-up

    (45) Restored citizenship for last Canadian involved in WWI

    (46) Saskatchewan Carbon Capture Storage Project

    (47) “Save a Million Lives” international program for people affected by poverty

    (48) Savings Account that is tax free

    (49) Softwood Lumber Agreement (Bill C-24)

    (50) Street racing crack down

    (51) Students exempted from taxation for scholarships, bursaries and fellowships

    (52) Student improvements to financing programs with 2008 budget of $123 million with 2008, starting in 2009 following the expiration of the Canadian Millennium Scholarship Foundation

    (53) Tackling Violent Crime Act

    (54) Tax Back Guarantee — a plan to use interest sayings from national debt repayments to reduce personal income taxes, each and every year

    (55) Taxpayers Bill of Rights

    (56) Taxpayers Ombudsman

    (57) Ukranian & Eastern European immigrants — $10 million to educate Canadians about the internment in Canadian work camps during WWI

    (58) Universal Child Care Benefit — $1200.00 per year for every child under age six

    (59) Universal Child Care Plan

    (60) Visa requirements lifted for up to six month visits — to Poland, Slovakia, Lithuania and Hungary

    Please note, the above list is from the following (fantastic) website and has copyright guidelines:
    http://harpergovernmentaccomplishments.com/

    To your (very small list) I have the following:

    Michael Fortier – there were some arguments for his inclusion in cabinet and Harpers appointment as well, however Michael Fortier announced back in 06 that he would seek election to the House of Commons in the next federal election (which could be soon).

    Taxing Income Trusts – from what I’ve gathered, Income Trusts were on the cusp of being used by major corporations. This would have reduced the intake of taxable monies by the gov’t substantially. It was a tough decision that had to be made for the fiscal health of the Country, and at a cost of popularity (and a relatively small group of investors). This is the cost of leadership – BTW, didn’t the Harper Gov’t give a couple of years for investors to sort this out? I do not believe it was an overnight thing.

    Equalization Deals – Not sure on this one, but haven’t heard much about it from those provinces, except Newfoundland who are doing very well.

    NAFTA – gimee a break! – He put a bullet in that lawyer employment beast that was on the table for how many years – a decade! This is an accomplishment in my eyes, it put it to rest once and for all – think of all the money we’ve saved from lawyer’s fees – this alone is worth it. How many lumber companies went under because of this delay. Another tough and unpopular decision that had to be made, or we’d be in the same position today – and this to you would be a good thing?! And if you want to talk about real waste, just look at the Liberals – doesn’t the Liberal Party owe us Millions (with an M) that they misappropriated and didn’t they spend a Billion (with a B) on that ridiculous Gun Registry and were still going strong?

    The Arctic – there has probably been more activity in the arctic (Rangers and CF patrols) than in any other time in recent history (ie. Operation NARWHAL 07, NUNALIVUT 08 etc). I also believe he announced construction of a new icebreaker. Don’t forget, PM Harper inherited a Country from the Liberals with a very weak defense capability (and a strong CBC).

    Wait Times – On 4 April 2007 PM Harper announced that all ten provinces and three territories have agreed to establish Patient Wait Times Guarantees by 2010 – so what gives with your comment?

    Whistleblowers – you must mean those people who give sensitive government documents to the media – they should all be fired – all of them (hey, wasn’t that guy a Liberal?)

    Political games, bring down the government? Are you kidding!? WHO has been threatening to bring down the government time and again? WHO is using inquiries as a political tool? WHO did not let one Conservative witness at the latest inquiry? WHO wants an inquiry for EVERYTHING – The Liberals that’s who – not PM Harper. PM Harper isn’t playing nice anymore and the Liberals can’t stand it. Lets get this election over with so the Liberals will shut up – who knows maybe they’ll win a majority again.

    Recession. Ah, the recession that isn’t. I believe you have to be in a recession to call it a recession. Do you think the constant (weekly) threats of the Liberals to bring down the government help with stability – NO. Will it help the economy – NO, Will it make investors in Canada nervous – YES. Bring on the election to shut the Liberals up. That “recession for a couple months” was the “first” month of the fiscal year, by the second month they were out – jeeze. –

    Cadman. PM Harper tried to avoid going to court several times, but the Liberals refused to pull the ad or apologize. – To me this is very reasonable, but the Liberals refused. Do you honestly think Harper would take them to court if he would lose?

    Summary. In all, not bad for a minority government in a couple of years – yeah, its not all been pretty, but I am mostly pleased given his performance, especially given that the federal infrastructure (and Senate) is rife with Liberal appointees.

    So why an election then if everything is going so well? Well, maybe there won’t be an election; maybe Mr. Dion will stop making parliament look like a sideshow and crying “Election! Election!” every damn week or calling an inquiry on “everything”, so we can go forward with some security and confidence. If Mr. Dion really wanted an election, then he could have had one many times over, but he doesn’t, he just does his “chicken little” routine and I for one am tired of it.

    To Mr Dion: Put up or shut up (fish or cut bait)

    To T. Thwim: Maybe you’ll get a Liberal majority this time – let the people speak with their votes – is it really that bad of a thing?

  20. Nice summary, rustyrose.

    A nice summary of the amount of ineffectual “legislation” (I also wonder if handouts can be considered “legislation”? hmmm…) that has been passed on Harper’s watch.

    The simple fact that you believe this list as “accomplishment”, speaks more about your standards of governance than anything else.

    Quite unfortunate that people fall for this fluff.

  21. Rustyrose:

    The campaign office is making you work on Labour Day? Or did you have that five page talking point document prepared, ready to copy and paste across the internet web forums?

    I like how one of your ‘PMSH Accomplishments’ was ‘receiving an award’. His mommy must be proud.

  22. If PM Harper wants an election that’s also good enough for me. And it should be good enough for the GG.

    If anyone has a problem, there is a simple remedy – vote for someone else when the election comes.

    What’s anti-democratic about that?

    Let’s have the elction already and get it over with. Mr. Dion has been saying for months that he does not have confidence in the government. Well, let’s see if the Canadian people agree with him.

  23. Austin, Why so bitter:( Please remember, Harpers running with a minority and IMO has done very well. Don’t forget to vote and hopefully turn that frown upside down :)

    Andrew, Actually I’m gardening today (no rain!), and I didn’t post anywhere else but here – the points (1-60) were taken from another site as I said in my post. Those below are my comments, and not on any other site.

    Back to the garden – ta!

  24. T. Thwim

    Sorry for not getting back to you sooner, I’m afraid I couldn’t get by “political b*****e” comment – gross and somewhat offensive.

    Bye

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