Today would should have been election day in Canada, had the Tories respected their own “fixed election” law. Law prof Adam Dodek has an article today arguing that the law never did what Conservatives pretended it did, and that’s a good thing. There’s nothing super new in Dodek’s analysis, though he does take the time to spell out the perverse consequences of a true fixed election date in a parliamentary system:
If election dates were set in stone, we could end up with governments continuing in office without the confidence of the House of Commons, unable to enact legislation. Or we might end up with governments changing hands several times between elections, a sustained replay of the coalition politics that we saw last December and January. The worst scenario would see a government that has lost the confidence of the House prorogue Parliament until the next election.
So what was the real effect of the law? As Dodek puts, it: “At best, what these types of laws do is set scheduled election dates. We all have scheduled appointments that we cancel or defer for a variety of reasons. So too with the scheduled election dates. We set today as an election day, if Parliament was not dissolved before.” (My italics.)
But this is something I’ve never understood: How is this in any way a departure from current practice? It says, right there in the Charter of Rights:
4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.
So, election dates are already fixed, by law, five years from the last one, if not before. So how was the fixed-election date law supposed to be anything other than a restatement of the constitutional status quo, simply shortening the period between fixed elections by a year (for no obvious reason other than to mimic American practice)? More to the point, why did anyone ever think is was anything more than this?
Well, it turns out some people didn’t. Back in January, Sen Lowell Murray introduced a bill to repeal the fixed election date law. Here’s what he said when he introduced the bill:
Therefore, honourable senators, I conclude — and some of us concluded in advance, when Bill C-16 was before us — that the law supposedly establishing fixed election dates in this country is literally “non sense;” it is a nullity. To borrow the memorable words of Mr. Bumble from Charles Dickens’ Oliver Twist: “The law” — that law — “is an ass.”
You can follow the bill’s progress here.