Would the Prime Minister be “breaking his own law” by calling an election?
“But if Mr. Harper calls an election, Mr. Dion said the campaign would open with Opposition allegations that the
prime minister cannot be trusted since he’s breaking his own fixed election law.” - National Post, 19 August 2008
“Fixed election” legislation is embodied in Government Bill C-16
, which received Royal Assent on May 3, 2007. The published summary of the bill states its intent clearly:
“This enactment amends the Canada Elections Act to provide that, subject to an earlier dissolution of Parliament, a general election must be held on the third Monday in October in the fourth calendar year following polling day for the last general election, with the first general election after this enactment comes into force being held on Monday, October 19, 2009. The enactment also provides that the Chief Electoral Officer may recommend an alternate day if the day set for polling is not suitable.”
What is “fixed” about this legislation?
- If Parliament is not dissolved sooner, the election must be held on the third Monday of October.
- If Parliament is not dissolved sooner, the election must be held in the 4th calendar year after the previous election.
- If Parliament is not dissolved sooner, the first “fixed election date” after this legislation comes into force is 19 October 2009.
- Whenever an election is called, the Chief Electoral Officer may move the date to “the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.” [56.2 (4)]
Nothing in this bill changes anything about our Westminster tradition which allows the Governor General to dissolve Parliament on the advice of the Prime Minister. Witness the following:
“56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.
56.2 (3) If the Governor in Council accepts the recommendation, the Governor in Council shall make an order to that effect. The order must be published without delay in the Canada Gazette.
57 (4) In the case of a general election that is not held on a day set in accordance with subsection 56.1(2) or section 56.2…”
“The Governor in Council” is defined as: “In Canada, the governor in council is the Governor General acting on the advice of the federal cabinet.”
Parliament of Canada elaborates:
“The process is set in motion when the Prime Minister requests the Governor General, who represents the Queen as the head of state, to dissolve Parliament and to request the issue of Writs by the Chief Electoral Officer for an election.
…the government must retain the confidence of a majority of the House of Commons or tender its resignation.” (1)
Dissolution terminates a Parliament and is followed by a general election, the date of which is set by the Governor in Council, with the Constitution Act, 1982 providing that Parliament must sit at least once every 12 months.
Dissolution is proclaimed by the Governor General on the advice of the Prime Minister. In the absence of such advice, dissolution is automatic following the expiration of a Parliament’s maximum five-year term. As a matter of interest, however, this has not yet occurred in Canadian parliamentary history. Parliament may be dissolved at any time. If the House is sitting, and there is not to be a prorogation ceremony, dissolution is usually announced to the House by the Prime Minister or some other Minister of the Government. If the House is not sitting, Parliament is dissolved by a proclamation of the Governor General. (2)
[Note: As of May 2007, the maximum five year term was amended to four years by Bill C-16. None of the other conditions were changed.]
Elections Canada’s clarifies the current status:
There are two things that regulate the timing of elections - The Charter of Rights and Freedoms, and newer legislation passed by an Act of Parliament in 2007 which backs the maximum date up from 5 years to 4 years.
“According to subsection 4(1) of the Canadian Charter of Rights and Freedoms, “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 of a general election of its members.”
That maximum five year term was amended in the Elections Act to be fixed at no more than four years.
“Since May 2007, the Canada Elections Act requires that a general election be held on a fixed date: the third Monday of October in the fourth calendar year following the previous general election. The first “fixed-date election” would be held on Monday, October 19, 2009. However, the law does not prevent the Governor General from dissolving Parliament at another date, for instance, when the government loses the confidence of the House of Commons. The date of a general election is set by the Governor in Council.”
What does the Prime Minister have to say for himself?
“We did establish a fixed date for the next election. That said, in this minority parliament, two of the parties (the Bloc and the NDP) have indicated for some months now that they want an election immediately. Mr. Dion has indicated that the government should be defeated, but he’s not sure when he’ll do that because he hasn’t got good enough polls. I don’t think that’s a particularly responsible position.
I think polls do indicate that the next election in all likelihood would be a minority one way or the other. The fact of the matter is, what I will have to decide over the next few weeks is whether or not we can have a productive fall session of Parliament, or whether in fact the government needs a new mandate. That’s a decision, that’s an analysis I’ll have to reflect on.
I’ll have to talk to some of the other parties, but what’s absolutely clear from the comments of all three opposition leaders (including Mr. Dion) is that they have no intention of respecting the fixed election date so obviously we’re going to have to judge how the Parliamentary agenda is unfolding. I think we’ve had a productive two and a half years, I do think that has slowed somewhat in recent weeks. I will take the next few weeks do a thorough evaluation of the situation and ensure one way or another we can have a productive parliament in the future.” (CTV News 12:01 ff)
The law is clear, when the Government has lost the confidence of the “majority of the House of Commons [it must] tender its resignation” notwithstanding a fixed date for the maximum term of a mandate. The only thing that is absent is the Liberals’ formal declaration of non-confidence. Stéphane Dion is making a mockery out of Parliament and the democratic process by publicly declaring his non-confidence in the media, but refusing to back it up inside the House. The media is complicit in this, as they are the perception that the Prime Minister would be ‘breaking his own law’ by calling an election.