An illegal election? - Macleans.ca

An illegal election?

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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…