She can say no


Elsewhere on this site you will find commentators shrugging indifferently at, if not actually cheering on the Tories for their casual subversion of their own fixed-election-dates law. As usual, I find myself in the minority. 

As I argue in the column, I think the Governor General would be well within her rights to prefer her First Minister’s initial advice, as duly considered and enacted into law — that Parliament should not be treated as a plaything, that lives or dies at the Prime Minister’s pleasure; that elections should not be rigged to the governing party’s advantage, in timing as in any other respect; that the public should not be deprived of fair and open competition among the various contenders for power —  rather than submit to his later fit of expediency. If the law does not constrain her discretion, it plainly does his, which constraint he now pretends she must ignore. To collaborate in this would make nonsense of legislation she herself has signed, and as such would bring the Royal Prerogative into disrepute.

That’s assuming any of this means anything — that this is not just another Tory bluff. Since they are so at pains to convince everyone that they mean it this time, I can only assume that they don’t.


She can say no

  1. Two big assumptions have played out in coverage of this – first, that Harper is going to go to the GG at all, rather than engineering defeat in the form of a non-confidence vote.

    Second, is that voters will punish the Tories if he did. I doubt it. Those inclined to vote Tory will buy Harper’s argument that Parliament is in disarray (and that the opposition is to blame). Those who make the biggest fuss will be the ones who would never vote Conservative to begin with.

    Overriding this is the never-ending and, I argue, silly argument that people don’t want elections – or, at least our third election in just over four years. People who take the time to vote don’t really seem to agree. People who don’t vote don’t really matter.

  2. Oh, and to address the main point of your post AC, the GG will never in a million years ‘say no’ to a request by Harper, if he made one, after almost 3 years of a minority government.

  3. Ordinarily I’d agree. But this is an unusual situation: we’ve never had a fixed-election-date law before. Harper may be of the view that the laws passed by Parliament are meaningless stunts, but the Governor General is obliged to take them seriously, to act as if Parliament mattered. Otherwise she treats her own signature as a contrivance.

  4. “Second, is that voters will punish the Tories if he did. I doubt it. Those inclined to vote Tory will buy Harper’s argument that Parliament is in disarray (and that the opposition is to blame). Those who make the biggest fuss will be the ones who would never vote Conservative to begin with.”

    But Emmet, what about those who don’t fit in either categories? Those who haven’t yet made up their mind? How can you be certain that Harper’s hypocrisy won’t turn them off?

    There is an underlying theme that keeps coming to the forefront here and it is that Harper cannot be trusted to keep his word. To start an electoral campaign by allowing your competition to paint you as a liar and a hypocrite can be quite damaging.

  5. If Mr. Coyne’s scenario comes true, I’ll be starting a pool to see how long it takes for Michaëlle Jean to be replaced by a GG more sympathetic to Harper’s wishes. I’m calling “3 days”.

  6. But Andrew, isn’t the GG’s entire role really just a contrivance? By that I mean, surely she recognizes that in 2008 for her to take such a stance would in itself be a hugely controversial decision given the symbolic nature of her role here?

    boudica, I agree that starting out a campaign by feeding the opposition that kind of ammunition is potentially problematic – but how much do you think people REALLY care about fixed election dates? I mean, Dalton McGuinty lied about taxes, health care and everything under the sun, and he was still re-elected (John Tory’s suicidal foray into religious schools notwithstanding).

  7. I think it’s unrealistic to expect the GG to put a meaningless law (and yes, laws can be meaningless – they shouldn’t be, but they can be) above her constitutional duty to call elections on the advice of the Prime Minister. Meaningless laws can’t be violated. The Constitution can.

    Even if it was a meaningful breach, is the GG the person we want deciding what the laws of the land require?

  8. While I absolutely agree that the law is INTENDED to constrain the Prime Minister’s discretion; and members of the government EXPLICITLY STATED that this was the intention of the law; and that the Prime Minister said he intended to interpret the law as meaning this, and to follow the spirit of the law; it’s nonetheless true, I think, that the law doesn’t ACTUALLY constrain the Prime Minister’s discretion (which, I think, was entirely deliberate).

    Is the intent of the law to constrain the PM? Yes. Is the SPIRIT of the law to constrain the PM? Yes. Did the PM and his MPs explicitly acknowledge and affirm this at the time? Yes. However, most importantly, does the statute ACTUALLY LEGALLY CONSTRAIN THE PRIME MINISTER? I’m no constitutional scholar, but I think one could argue “No”.

    The statute talks a lot about when elections should be held, but it makes no mention of the Prime Minister or his government at all, and no mention of the Governor General or the dissolution of Parliament at all except where it says “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion”.

    Now, the GG is always empowered to use her discretion, and I suppose she could point to the law (and more importantly the Prime Minister and his MPs own public statements about the intent of the law, and their commitment to honour its intent) but I do think the GG would be out on a bit of a limb to refuse to take the advice of her First Minister on the grounds that he’s enacted a law which precludes his ability to give that particular advice, based on a law that doesn’t explicitly do that. Pointing out the hypocrisy of offering her advice which is contradictory to the advice he not only gave previously, but also (arguably) had written up and enacted into law by Parliament (in spirit if nothings else) would be useful, but I’m not certain that it would be constitutionally valid.

  9. What would be really fun would be for her to put out a press release, prior to the Prime Minister making the “big walk” stating either:

    – ‘Despite the fact parliament passed a fixed election date law, I will place great weight in the advice of my first minister when it comes to deciding the timing of elections’ (aka she’ll do it), or

    – ‘After the Fixed Election Date law has been repealed or the government has lost confidence in the house, I would be happy to discuss with my first minister the timing of elections’

    It would put this to rest, either way, and avoid a potential constitutional crisis as the Prime Minister would choose instead to present a poison pill bill.

  10. Harper may be of the view that the laws passed by Parliament are meaningless stunts, but the Governor General is obliged to take them seriously, to act as if Parliament mattered.

    To make my point more (PERHAPS) more clearly, I think the point here is not so much that Harper views “the laws passed by Parliament” as meaningless stunts, but that he knows that this PARTICULAR law passed by Parliament was a meaningless stunt (because it was his idea, and he engineered the legislation to be meaningless).

    Given what follows it, I’d argue that the first subsection of the legislation, which reads “Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.” is the legislative equivalent of “You might as well stop reading here, because everything after this subsection is meaningless, unenforceable, constitutionally dubious tripe that we’ll be using as political rhetoric but has no actual practical force in law.”

    The PM complicated matters by DENYING that the legislation was meaningless tripe (Marlene Jennings called the legislation “clearly duplicitous” to howls from the government side) but it seems to me that the GG is bound by what the law says, not by what the PM says the law was intended to do (especially if the PM is now arguing that she should IGNORE what he previously said the law was intended to do!).

    If the PM is willing to argue to the GG that everything he said about the “fixed election date” statute at the time was total B.S., and that the law itself is actually a meaningless pile of the same, I’m just not sure there’s anything in the law itself which would contradict that assessment.

  11. Andrew, have you heard any noise about the PM calling all MP’s to Ottawa next week?

    This blogger says he has.

  12. “boudica, I agree that starting out a campaign by feeding the opposition that kind of ammunition is potentially problematic – but how much do you think people REALLY care about fixed election dates?”

    Emmet, fixed elections won’t be the issue but Harper’s about-face on yet another promise most certainly will be. Whatever promises Harper makes during the campaign trail will be met with a perfect rebuttal from his competition.

    As for McGuinty, it was Tory’s blunder that saved him from the voters.

    Harper now has a record on which he will be judged. To start the campaign with such a blatant reversal on a promise will not go unnoticed.

  13. Why can’t the meeting be:

    “It is unfortunate that you feel that Parliament is currently in disarray and warrants dissolution. Unfortunately, we now have a law of fixed election dates which I cannot ignore in my capacity as GG. Given your lack of confidence in leading Parliament, perhaps it would behoove me to request that the official opposition fulfill this duty of leading Parliament until the date of the fixed election.”

    That would be fun.


  14. Andrew, your first two links point to Potter’s post and I assume one is meant to point, more in sorrow than in anger, to one of mine.

  15. Andrew
    Just wishing that someone had the power to slap down Harper will not make it so. Harper is doing no worse at this kind of political nonsense that many before him. However distasteful this all is, let’s not forget that it will be the voters who decide how this plays out, and I can never see anything wrong in going to the electorate for a decision.

  16. KNB: If he’s headed to the Arctic on Tuesday, it seems a little cruel to make MPs – or even just ministers – sit around Ottawa for four days to prove that this is serious election calling business. Didn’t we have at least one false alarm about cabinet ministers under travel restrictions during the seemingly endless shuffle speculation?

  17. Thanks Kady, good point.

    This story just gets more weird with time.

  18. Perhaps Harper is visiting the Fortress of Solitude to commune with his ancestors from Krypton?

  19. Andrew, I agree with your position, but I wonder if Dion has set the stage where it would make it impossible to refuse Harper’s request.

    As the Leader of the Official Opposition, his job is to oppose. Sometime earlier this summer, maybe it was quoted here on Maclean’s site, Dion was taking great pleasure in pointing out how he and only he had the power to determine when the government falls, a power that Harper had perhaps unintentionally ceded to him with the fixed election legislation.

    Being a control freak, this must have goaded Harper into engineering his own debate.

    But just the other day, before the Harper spinmeisters went into overdrive, I seem to recall one reporter asking him (pw?) whether the GG had the option to refuse the request of the PM if so asked, and he replied something to the effect that in his opinion, the GG will do what the PM asks.

    So, hasn’t the moral high ground been surrendered by Dion? If her majesty’s loyal opposition doesn’t think the GG could/should/would refuse Harper’s request, how, in practical or moral terms could the GG?

  20. Paul – Corrected. Consider yourself (respectfully) dissed.

  21. Andrew, wouldn’t her saying no present us with a massive constitutional crises?

  22. She could. She won’t. Anything beyond that is a waste of breath and/or space.

  23. Nonsense. The Governor General is the protector of the Constitution. King-Byng wasn’t a constitutional crisis — it was a wholly fabricated “crisis” that King exploited for political gain. He may have won the election, but Byng was right in law.

    Now, Paul Martin governing for nine days after he had lost the confidence of the House, using powers of office he no longer possessed to hand out cabinet seats (inter alia) in exchange for the votes he needed to preserve himself in office — that’s a constitutional crisis.

  24. The government could introduce a motion of confidence in the government. I think. Not tied to any other legislation.

    Some flowery wording about how the parliament is disfunctional, blah, blah, blah…

    Make the other parties vote specifically on whether or not parliament is working. It would look bad if the libs sat on their hands for that.

  25. Kady, it looks as if Blackburn is confirming the rumour.

  26. Let me try some statutory interpretation here:

    Clause One: The PM can call an election whenever he feels like it….

    Rest of Bill: The PM is abdicating his right to call an election whenever he feels like it and instead fixing the election date.

    Either this “Act of Parliament” was always meaningless symbolism or one of the two clauses above mean something else…..or maybe the Torys got screwed by a Liberal bureaucrat…..

    Breaking a key (if meaningless) promise days before an election call is certainly bold if nothing else.

    Back to my checkers game – it’s a lot more complicated than it looks.

  27. Mr. Coyne, you’re column is quite excellent… you and your colleagues have outdone yourselves with the writing of late… Ms. O’Malley’s humor, Mr. Well’s Hemingwayesque opus, and Mr. Wherry’s clarity and corporate memory for example. It’s the latter why I add my comment here… as for the ‘indifferent shrug’ is that not the body language of choice for the Ottawa press gallery in terms of Harper’s less than strong adherence to his word, his promises, his comments of say, earlier in the month?

    Please- I don’t want this an indictment of media, or for the hard core Conservatives reading, the MSM (Absolutely. Hate. That. Term.)… but as an observer of politics, of news, of current affairs, I am so tired of having reporters and pundits tell us that all of the broken promises do not matter… that it’s “inside baseball” or some other insipid cliche. One suspects that this is the type of thing a Conservative staffer whispers over and over to themselves as they try to get to sleep. I’m watching, and I don’t think I am alone, witness some of Mr. Wherry’s coverage this week, or as I referenced elsewhere, the poll commissioned by the Privy Council Office.

  28. Damn – I’d love for GG to say no….just to see the backlash and Harper’s face…..he rules the world in his own mind.

    Love to see…just to see what happens. You can be assured she’s lose her job mind you – he doesn’t like her anyway so what’s she got to lose.

  29. The fixed election dates should be fixed in stone. One election date period. The torys have whined and cried the time, play with my marbles or I pack up and take them home. They are not the only one. The voting public did not give them a clear majority, they have to work with the other parties and practice compromise, It’s the role of the voter to be fed up with minority rule not the PM.

  30. Stephen Harper has completely outmanouvered Dion on the election timing. I agree with Mr. Wells’ assessment that Harper never wanted to go to an election early on in his minority mandate. Instead, he wanted to get Canadians used to having him as Prime Minister. Dion thought that only he had the power to bring the government down and the election timing was in his hands given the election law. He openly bragged about it. Thinking that it was his election to call gave him the illusion that he was in control of events. It turns out not to have been the case.

    Stephen Harper has now decided that he has governed for a sufficient amount of time for Canadians to get to know him. Moreover, it is he who will decide when the election is called, not Stephane Dion. Dion looks impotent and a little foolish: did no one advise him of what the law said?

    Harper is entering into the 4th year of his mandate in 4 months or so. The Governor General will take his advice and an election will be called for the simple reason that it’s time for an election.

    The election should be and will be about the issues. But the fact that Harper has run circles around Dion on the election timing tells me that we may be in for a bit of a mismatch.

  31. So, count Jarrid amongst those who think the “fixed election date” law isn’t worth the paper the Governor General signed. He even mocks Dion for naively believing that the law the Tories trumpeted as a great democratic reform was actually a meaningful piece of legislation (though, here I agree, Dion should have known the Conservatives were just jerking the country around on this one).

    Shorter Jarrid: “Harper is a political genius because he convinced Dion that he was being honest and sincere when he was talking ( and legislating) about democratic reform”.

    It’ kinda hard to argue with that.

  32. Andrew,

    Surely even you would agree that the juvenile actions we are currently witnessing in Parliament (from all four parties) mean that there has to be a limit somewhere that says minority parliaments do not have to last the full four year term. There is no way that the GG can say no to advice from her First Minister on this one.

    The poisonous atmosphere is even worse today than it was in May 2005 when Paul Martin ignored that vote of non-confidence to allow time to buy Belinda’s vote.

    An election now will clear the air. Even if its another minority, we’ll still have several years of relative stability.

  33. …but she won’t.

    I think we need to accept the reality that however reasonable it might be for the GG to refuse a dissolution, there is about a 0% chance that it is going to happen. Dion himself has said that it is up to the PM, although it would be unethical considering the legislation. Why would Jean ask Dion to form a government when it seems that he would refuse? Then you would have a real constitutional crisis with no prime minister and the two major contenders for the job recommending an election.

    Would Jack Layton end up as PM for a 36 day writ?

  34. If it is “unethical considering the legislation”, and Jean believes it to be unethical, she does have another choice besides refusing a dissolution or asking Dion to govern. She can resign herself, leaving Harper in the position of having to appoint a new GG for the sole purpose of asking her/him to dismiss the government as his/her first act.

    Ridiculously hypothetical, I know, but so has been the rest of this thread….

  35. Harper should just join with one opposition party to vote himself out. In a minority government, the governing party should be able to vote no-confidence in the government, if they cannot progress their legislative agenda.

  36. Mr. Coyne writes, in his post:

    “To collaborate in this would make nonsense of legislation she herself has signed, and as such would bring the Royal Prerogative into disrepute.”

    Her mistake was not to veto (or “take into consideration” or whatever the formula is) that unconstitutional piece of legislation in the first place.

    The question now is whether she will violate the unwritten constitution by refusing dissolution and ignoring the PM’s constitutional Advice.

    Mr. Coyne writes, in his comment:

    “The Governor General is the protector of the Constitution. King-Byng wasn’t a constitutional crisis — it was a wholly fabricated “crisis” that King exploited for political gain. He may have won the election, but Byng was right in law.”

    It was indeed a constitutional crisis, fabricated or not. (“Crisis” is an objective not a legal term.)

    But the main problem is that convention has, in the intervening 80 years, required the GG to follow Advice without hesitating. To do otherwise would be to recur to an older model of the Crown’s practical powers. (Which, IMHO, were better, but which have lapsed.) If we do that, where do we draw the line? How do we avoid politicising the Crown, as future PM’s nominate GG’s for their malleability and/or partisanship? This is why we can’t defy 80 years of convention.

  37. A non-partisan question for a knowledgeable Parliamentary historian: how many minority Parliaments in Canada have been dissolved by loss of confidence in the House, and how many minority Parliaments have been dissolved by the GG on advice of the PM while confidence was still maintained? Of the latter (if any), what were the durations of their terms (i.e. how does that compare with the current duration)?
    Is it not the GG’s job to solicit MPs (effectively the other party leaders) about the possibility of reconstituting a governing coalition before calling an election? Is that only a legal (or convention-al) step to take after loss of confidence, or is that a valid option once the current PM gives up on governing? Does the validity of that option (again, by convention I suppose) diminish given the already-impressively elapsed duration of the current minority Parliament? Has that validity threshold been passed?
    All the above information may pre-suppose the quirk of the fixed / not-fixed election date legislation recently passed into law. I would just appreciate that factual info from a reliable historian as a background to the partisan speculation over what the new legislation brings to the debate / campaign.
    To the historian who may be so kind to address any or all of these questions, thank you in advance.

  38. OK, here’s what I’ve got, with thanks to Wikipedia, the Canadian Encyclopedia Online, and parl.gc.ca (the latter being the least helpful).

    2nd(1873): 0y 10m: MacDonald (9+m), Mackenzie (1d)
    NOT A MINORITY AT OUTSET; COLLAPSE BY PACIFIC SCANDAL, GG request to Mackenzie to govern: election immediately called on Mackenzie’s advice to GG.

    14th(close to 50-50, de facto majority, debate as to maj vs. min)

    I have chosen to not include the two above as “minority” governments.

    15th(1925): 1y 6m; King (1y6m), Meighen (3d)
    MINORITY: TRANSFER OF GOVERNING PARTY; LOST IMMEDIATELY ON A CONFIDENCE VOTE King-Byng affair: Dissolution advised by King, refused by Byng. Meighen accepted Byng’s invitation, then promptly lost a confidence vote.

    16th(1926): 3y 6m: King
    “MINORITY” (PROPPED UP BY PROGRESSIVES) “DISSOLVED” AFTER 3.5 YRS (parl.gc.ca does not even list this as a minority, Wikipedia does. So does history: “longest minority govt in Canadian history”) (No evidence found of a loss of confidence)

    23rd(1957): 0y 3.5m: Diefenbaker

    25th(1962): 0y 4m: Diefenbaker

    26th(1963): 2y 4m: Pearson

    27th(1966): 2y 3m: Pearson (2y3m), Trudeau(days)
    MINORITY DISSOLVED BY ELECTION CALL Confidence vote lost, then all parties voted to ignore / revoke the “confidence” status of the lost vote, continuing the Pearson minority, ostensibly because Pearson was in process of retiring anyways. Was that actually legal?

    29th(1973): 1y 4m: Trudeau

    31st(1979): 0y 2m: Clark

    38th(2004): 1y 2m: Martin

    39th(2006): 2y 5m and counting: Harper
    (“second longest minority ever”)

    10 Minorities, 9 of which have ended.
    5/9 ended by loss of confidence
    4/9 ended by election call by PM
    (closer to 50-50 than I would have guessed initially)

    Durations of four confidence-retained Minorities: 3y 6m
    2y 4m
    2y 3m
    0y 3.5m

    Only one minority government saw the transfer of power between parties without an election: King to Meighen, during the “King-Byng” affair. A short-lived transfer, only long enough to immediately fall to a confidence vote.

    As for the GG: I have no idea how often prior GG’s have invited other party leaders to secure confidence of the House to continue a minority-government Parliament, or whether it matters that the House falls to non-confidence or that the incumbent PM advises dissolution. So, help still requested on the remaining Q’s in prior post. Thanks.

  39. madeyoulook, thanks for the interesting info. I’d add, however, that when the Government loses a confidence vote the PM then goes to the GG to request dissolution for that reason. So in that case the GG is also acting on the Advice of the PM. The GG has only acted against Advice in the King-Bing Thing. The weird 1966 confidence two-step meant that the House reaffirmed support for the Government before the PM was duty-bound to advise dissolution.

    To say it again: for the GG to refuse Advice would provoke a major constitutional crisis. Of course, it’s an open question whether even a major constitutional crisis would be noticed by Canadians or respected by the various parties. That would be the final humiliation.

  40. Jack, I fear you may be lumping too much together in the “advice of the PM” basket. You see the same justification for the GG acting when the PM must visit Rideau Hall as when the PM chooses to visit. I see it differently.

    And I would still appreciate historical facts surrounding the concept of consulting other MPs, particularly other party leaders, regarding the prospect of continuing Parliament with a new governing party that might enjoy the confidence of the House, and without dropping the writ. Does the GG ever avail him-her-self of this power? Or is it more of an actual constitutional obligation? Or is it more of a constitutional nicety that convention has obliterated? If that power is still legally and practically available to the GG, is it to be called on: (a) when a minority government falls to a confidence vote; (b) when a minority-leading PM gives up too soon (à la King — sorry, couldn’t resist); (c) either a or b?

    Chief Justice McLachlin, surely you’re still up, and surely you are a regular reader here. Care to offer up some ex parte thoughts? We won’t tell anyone…

  41. madeyoulook, I appreciate the distinction, but the point is that the GG must act on Advice.

    To say that Parliament, of which the PM is leader even for that brief interval in which he no longer has the confidence of the House to govern, cannot Advise the Crown on when to dissolve the House would be to roll back our constitution several centuries.

    In a minority situation, the convention is (I believe) that the GG can ask a different leader to form a government only in the very early days of a Parliament, when the first PM has attempted to govern and not been able to. This PM has been PM for nearly three years – actually almost the same length of time as King had governed prior to the King-Byng Thing.

    Not to add another wrinkle, but it would be, if possible, even more unconstitutional for the Supreme Court to force the GG to act one way or another. The GG has to decide this independently, based on convention. The choice is clear, she must act on Advice.

  42. Harper and his cabinet can resign from the GG’s government for the duration of this parliament. She can either ask Dion to form a coalition with the Bloc and NDP or she can dissolve parliament and call an election. Informally, she will probably seek Harper’s advice and select an election date of his choosing.

    Harper can claim that he will not have violated the meaningless fixed-term election date. He will just be informing the GG that he and his party will no longer participate in her government for the duration of this parliament. This is sometimes done in European democracies.

  43. “But Andrew, isn’t the GG’s entire role really just a contrivance?…”

    My read of things is that the way it works is the GG is the only person that stands between Cabinet and any law they want. The passage of bills through Commons and the Senate are conventions, not requirements.

  44. Geiseric:

    “My read of things is that the way it works is the GG is the only person that stands between Cabinet and any law they want. The passage of bills through Commons and the Senate are conventions, not requirements.”

    The same could be said of most of our constitution. The passage of bills by Parliament is a convention that predates the Magna Carta (1215). The Crown’s attempt to govern without Parliament is what provoked the English Civil War (1642) and the Glorious Revolution (1688).

    Under our current constitution, the main thing standing between the Cabinet and unfettered rule is the voter.

  45. “Under our current constitution, the main thing standing between the Cabinet and unfettered rule is the voter.”


    now you’re scaring me

  46. I mean that legitimacy flows from the voter to the MP to the Cabinet; that the fundamental act of accountability takes place at election time.

  47. since the GG is in essence an extension of the monarch are we allowed to write to her and let her know that we as citizens would like her to deny Harper’s request to dissolve parliament? Is this considered inappropriate?

  48. What an interesting idea! Doesn’t sound inappropriate to me, though I would hope her sense of duty would not be swayed one way or the other. In this she is acting not on behalf of the people of Canada per se but on behalf of the constitution, however you interpret that . . . Still, I think it’s a beautiful idea.

  49. This is an interesting discussion, but I wonder if we would even be having it, if the roles were reversed. If this were a Liberal government, there is no doubt in my mind that the media pundits would give a Liberal PM a pass on this despite what the legislation says. The PM’s explanation that this only applies to majority governments and that this parliament is dysfunctional (which it is) would be accepted and we would be headed to the polls.

    My take on this is despite all the noise and handwringing over whether the PM is breaking his own law, people will soon forget about it. The media can rail all they want, but at the end of the day the majority of people don’t care.

  50. As many court judges have said, the absence of a precedent does not preclude the establishment of one in the future.

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