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ITQ to Senator Michael Fortier: Resign!


 

And we mean that in the nicest, most constructive way.

You are, after all, the nominated candidate for the Conservative Party of Canada in the riding of Vaudreuil-Soulange. The very instant that the writ drops on Sunday, you’re officially in the running for a seat in the Commons –  and although Elections Canada doesn’t explicitly disallow sitting senators from running – which, incidentally, strikes ITQ as one of those unintended statutory consequences, since it’s unlikely anyone would have anticipated a situation like this – the Constitution makes it pretty clear that a senator “shall not be capable of being elected or of sitting or voting as a Member of the House of Commons.”

Now, you might argue that you haven’t actually been elected yet, so technically, you shouldn’t have to resign until the voters have had their say. Heck, you might even be correct, at least as far as the law. Is standing for election the same as “being capable of being elected”? It’s one for the constitutional law professors, legally speaking.

But given that you promised, on more than one occasion, that you would resign from the Senate and vie for a seat in the Commons as soon as you got the chance, I don’t think you’ve got much choice but to submit your resignation — ideally, sometime before the Prime Minister heads to Rideau Hall on Sunday. We’re just trying to save you from political grief – and your boss from the bad optics hangover of his decision to appoint you in the first place. See you on the campaign trail!

UPDATE: As a commenter points out, the same stark choice confronted erstwhile Chretien-appointed senator Bernie Boudreau, who was appointed after the Great Nova Scotia Liberal Massacre of ’97. He resigned just days after the writ dropped in order to run in the 2000 election, only to be defeated by the NDP’s Wendy Lill.


 

ITQ to Senator Michael Fortier: Resign!

  1. Excellent point, Kady… it is certainly an interesting conundrum for Harper and Fortier; if Fortier runs without resigning, and loses, he remains a senator… an appointed senator by a PM who promised senate reform so that crass patronage appointments could no longer be made…
    And it gets really interesting if an asteroid hits the planet and Dion somehow squeaks into a minority government (and I’m speaking as someone who will likely vote Lib), and (a losing) Fortier is still in the senate…

  2. Based on your quoted text, ITQ, I trust you would be satisfied if the resignation occurred after the call and before the election?

  3. Bernie Boudreau was a sitting Senator who ran as for MP of Dartmouth (Nova Scotia) and subsequently lost.

    According to his Parliamentary bio he was a Senator until October 26th, 2000 and I believe the writ was dropped for that election on October 22nd. So, technically he was a Senator for 4 days during the campaign (as I believe he was acclaimed the candidate before the election began).

  4. MYL – If there’s a good reason why he has to do it that way, ITQ is open to hearing it, but she can’t think of one at the moment.

  5. Well, one reason: he’s still a minister, no? It would be legitimate for him to keep “doing his job in service of the country he loves, etc.” even during a campaign…

  6. “shall not be capable of being elected or of sitting or voting as a Member of the House of Commons.”

    I think that makes it pretty clear, since he is a nominated candidate, he is capable of being elected to the House of Commons the minute the writ is dropped. Therefore he has to resign before the writ is dropped.

  7. MYL: You don’t have to be a parliamentarian to be a minister.

  8. OK, here goes with a diminishing-returns attempt at a feeble riposte:

    1. What if Fortier resigns, then Harper changes his mind about dissolution? Unfair to Fortier.

    2. “capable of being elected” could also logically activate only on voting day itself. I may want to run as an MP for Kicking-Horse Pass, but I am not “capable of being elected” until Elections Canada administers an election.

    3. AC, if no one else, will like this one. She can say NO. If she does, taht’s unfair to Fortier.

    4. Can you imagine the howls if Fortier steps down as Senator but stays on as Minister, even for a few weeks?

    Hey, relax, I said myself it was feeble…

  9. Hey if this trend continues who needs an election. In another couple of weeks Dion will have enough seats to govern and Canadians can pocket the $300 Million budgeted for Harper’s vanity election.

  10. Fortier is a bum, and he should resign whether he’s running or not.

  11. A little birdie told me that Fortier doesn’t have much of a chance winning his seat at this point.

  12. “2. “capable of being elected” could also logically activate only on voting day itself. I may want to run as an MP for Kicking-Horse Pass, but I am not “capable of being elected” until Elections Canada administers an election.”

    Garbage. In order to be a candidate, you must be capable of being elected. If he isn’t capable of being elected, he can’t be a candidate. He has to resign before he is, in fact, a candidate.

    “4. Can you imagine the howls if Fortier steps down as Senator but stays on as Minister, even for a few weeks?”

    It’s no different than all of the Ministers who aren’t running again yet will stay on in their ministerial posts until their successors are named. If it really is an issue, he can step down as Minister and the very few issues that pop up during the campaign can be dealt with by the appropriate acting minister.

  13. Inspired effort by MYL!I’m sitting on a bench soaking up the pre-storm windmosphere or I would riposte, but I’m sure there are other cranky commenters with more impressive constitutional chops out there who will do it for me. For the record, I’m not sure if he is *legally* required to resign, but I think it is sufficiently nebulous that he would be wise to err on the side of caution. Plus, I do think there’s something to the argument that you have to be *capable of being elected* to run, not just to receive votes on e-day (what about advance ballots, then?). But for some reason, this is yet another one of those odd and unprecedented parliamentary conundruns that keep coming up these days.

  14. All right, all right. I called it feeble myself. But garbage? Now I’m just hurt.

    To further convince my close friends I need a twelve-step program to free me from my ITQ addiction, here goes…

    Can we all put down our weapons if Fortier resigns as Senator before he registers as a candidate in whatever riding? That may be after an election gets called, but I hope parliamentary democracy will survive getting sucked into a black hole.

  15. Aww shucks, Kady, you’ve gone and cheered me right back up. Thanks.

  16. I hate to tell you this, but he already has. Well, he’s been *nominated*. But your inspired if doomed defence makes me willing to give him until Monday morning, when the race really officially gets underway. Fair?

  17. Why should Fortier give up his seat for Lord?

  18. My I-am-not-a-constitutional-lawyer-but-I-play-one-on-the-internet hunch would be that the precise order of the resignation/writ drop doesn’t matter a heck of a lot. Where the dreadfully-inconvenient-for-Harper BNA Act (see: Senate Reform, ITQs passim) would kick in, though, would be when the local Chief Returning Officer recieves his formal nomination papers as a candidate (remember, those aren’t usually provided by any candidate until at least several days after the writ drops). I would imagine the CRO would be legally obliged to refuse to accept them and put him on the ballot until such time as he resigns his Senate seat–it would be akin to a non-citizen or a 17-year-old filing them, n’est-ce pas?

  19. Desperately looking for another hair to split… Oh! Here’s one. A party can nominate you, but can you actually register with Elections Canada before an election is declared?

    Gotta go now. A bunch of friends are at the door, and they’re all looking very serious. I thought I heard the word “intervention” through the door before it opened. Bye, it’s been fun…

  20. Constitution Act 1867, Section 39 : “A Senator shall not be capable of being elected or of sitting or voting as a Member of the House of Commons.”

    From the time a candidate is officially confirmed by Elections Canada as a candidate, they are capable of being elected as a Member. My interpretation is that as soon as the nomination papers are submitted along with the deposit, the Senator should resign.

  21. Gah, missed posting delightfulness in the meantime.

    Discomforting as it is to swoop to the rescue of myl, Kady, I think you’re not distinguishing between “nominated” in the sense of getting the nod under the Conservative Party’s rules and bylaws, and “nominated” in the sense of getting howevermany signatures of registered voters in the riding along with a deposit and all that jazz.

    As far as I can tell, there would be no actual legal consequences of a particularly endearing-looking basset hound getting a Tory nomination in accordance with whatever rules the party has (“I really respect Droopy because he has a young family…”), but the formal candidatification of Droopy would have to be stopped dead by Elections Canada when papers were filed. And then Pierre Poilievre would complain of its Liberal bias.

  22. Man…all this speculation about what he should do really is moot.

    Fortier will not do anything out of morality or ethics, much like the party he represents, but only if the optics looks good or if somebody starts noticing, also like the party he represents.

    And yes, I don’t doubt for a second that if Harper wins, Emerson will be given a Senate seat and stay in cabinet, despite whatever “promises” have been made. Why? Because he can.

    The question again is why someone would support anyone this kind of utter disregard for our institutions of government.

    Austin

  23. Don’t be a rube, Kady, Fortier will hang on till the bitter end.

    And believe it, right now his sack-lickers are pouring over obscure Parliament documents trying hard to find precedent so he can stay in the Senate while nominally keeping his name on the ballot in west-end Montreal.

    Bernie Boudreau and Robert de Cotret may not be the examples he’ll want to cite, but that’s only the recent political past.

    Back-assward yourself several decades and there could more than likely be the required ammunition to support Fortier’s argument that he need not vacate the Senate.

    After all, a Commons seat may be for a term, but a Senate seat is for (just about) life !

    And who more than Fortier is entitled to his entitlement.

  24. “Can we all put down our weapons if Fortier resigns as Senator before he registers as a candidate in whatever riding? That may be after an election gets called, but I hope parliamentary democracy will survive getting sucked into a black hole.”

    Yes, the weapons can be put down. :) As subsequent posters have pointed out (Tom et al.) despite the fact that his party has nominated him, until he collects his signatures, submits his nomination papers to the CRO and had them certified, he is not a candidate. Provided he resigns before he submits his papers to Elections Canada, I believe he would be respecting the constitutional provisions.

  25. The Senate is irrelevant anyway. Why doesn’t Kady just call for them all to resign? Oh, because most of them are Liberal, I get it.

  26. Darren, without senators, no legislation could be passed.

  27. I would have to side with the POV that until he turns in his nomination paperwork to the local electoral officials in the riding and they start to process it to make his candidacy official he can remain a Senator, but that once he submits that paperwork he must also resign from the Senate to be acceptable legally as a candidate for the riding. As others like Tom and Mulletaur have already noted until the proper formal authority (in this case the local Chief Returning Officer) sanctions any nomination as having complied with the legal requirements a person is not actually “being capable of being elected” by any logical understanding as well I suspect as a legal one (since logic and legal reasoning can be remarkably divergent) to a seat as an MP, indeed for any elected office.

    That said, it would be in good taste politically for Fortier to resign as soon as the GG allows an election writ to go through, and not wait until the formal paperwork being submitted, but then if Harper and Fortier were at all concerned with good political taste/optics let alone ethics they wouldn’t have had him become a Senator and then a minister let alone the unaccountable to the public minister of the ministry most noted for patronage and pork in the entire cabinet. It is not like one must be a Senator to be in the Cabinet, nor a MP (even if that is traditionally how we do things it is not a legal requirement) and given all that Harper said in the past about unelected Senators and such this was a particularly ugly thing to do, at least the Chrétien political operative/bagman for Quebec had actually won an election before being placed at PW, unlike Harper’s man Fortier.

    No I don’t like Fortier and do not think he should ever have been given neither the Senate seat nor any Cabinet seat let alone PW, and said so at the time. Indeed, I thought it combined with the Emerson buyout was starting this new first ever CPC government with an ethical stain that would never come off and a foretaste of the kind of government we would see from Harper, and so it proved out to be given the many ethical and unprecedented abuses of power we have seen from this Harper/CPC minority right up to this attempt to circumvent his own passed law regarding fixed date elections.

  28. It would surprise me if Fortier does resign. I suspect he will ponder the benefits of a lifetime gig in the senate, good pay, lots of perks, and will not bother to run. Then we will hear a lot of tiatribe about being more use to Canada as a senator. Canadians will bitch and moan for two weeks, and then it’ll be forgotten.

  29. Good golly, we know a lot of constitutional fine points! What are we? A buncha Canadia… Oh yeah we are. I was fooled because it seems like no one here is actually drunk. Don’t you know that a proper discussion of the Canadian Constitution requires Scotch!? Hold on while I get some…

    Seriously, I agree with Tom et al that according to common law no job is done till the paperwork is complete.

    Taking off for a while, enjoy the election everyone. Best reality show ever!

  30. Now, you might argue that you haven’t actually been elected yet, so technically, you shouldn’t have to resign until the voters have had their say. Heck, you might even be correct, at least as far as the law.

    Of course the Tories will argue that Kady. It’s what they do. Remember they claim to be technically following the fixed election date law and also the election finance laws. This government lives in the gray area of legal technicalities. They are fine with it and have the financial wherewithal to tell people who don’t like it to either put up with it or sue them.

  31. If I may just comment on Fortier. He might lose like Garneau did in Vaudreuil-Soulanges. The predictions are showing Ms Faille as the best person for the job of MP. This may be the reason why Fortier is hanging on to his senate seat…in case he doesn’t get elected! He has portrayed himself as an MP since two years and has accumulated so many errors. Not a good MP on my note! I live in the riding and will vote for Ms Faille (I’m not a separatist but she’s a hardworking MP and really does a good job for the english-speaking community).

  32. Oh, I think there’s a pretty good chance he’ll lose to the Bloc Quebecois – Meille Faille won fairly handily last time round over Garneau, and it’s hard to see how Fortier would qualify as a “star” candidate. Infamous, maybe. I can understand why he’d want to hang on to his current seat until he knows he’ll be getting a new one down the hall, but unfortunately, he can’t do that unless he wants to make himself, and, indirectly, his leader, look like a liar and a hypocrite, respectively.

    Oh, and there’s also that small matter of the law, but even if he parses words “capable of being elected” into a constitutional free pass to run for the House without resigning from the Senate, it probably wouldn’t fly with the voters.

    It would also put pressure on the PM to state whether Fortier would be rejoining the cabinet – or, hell, even the caucus – after the election, which dredges up the whole issue of having appointed him to the Senate in the first place, which is on the top ten list of things that Stephen Harper would really prefer not to have to talk about during the campaign.

  33. When does Elections Canada officially confirm somebody as “elected”? It must be after Peter Mansbridge. So in the interval he could text the GG his resignation as Senator. If he loses, of course, it’s all gravy.

  34. Who said he is capable of being elected?

  35. Does he have the hundred signature’s from people who live in the riding into elections Canda yet. As well as all the forms signed. I don’t know what the deadline is, but once those are filed, his name is on the ballot and then he is “capable of being elected”.

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