Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates
Andrew Heard*
Given the fundamental role that conven- major problems with the three-part Jennings tions play in the Canadian constitution, it is test adopted by the Supreme Court of Canada not surprising that litigants try from time to in the Patriation Reference and employed in time to engage the courts in defining or even Conacher. A fresh analysis of the issues in Co- enforcing the terms of a particular convention. nacher is needed to determine whether in fact a The Federal Court’s September 2009 decision constitutional convention had arisen to support in Conacher v. Canada (Prime Minister)1 is the the fixed election date legislation. latest high-profile example. Duff Conacher, Co- ordinator of Democracy Watch, had launched Any pronouncement by a court of the terms a court case that challenged the 2008 federal of a convention can and often does amount to election call as contravening either the provi- a political enforcement of the convention. The sions of the government’s fixed-date election authority of the courts adds considerable weight law (Bill C-16,2 passed in 2007), or conventions to their opinions, and their conclusions are of- supporting the law. The Federal Court rejected ten portrayed as authoritative. Thus, it matters Conacher’s application, holding among other whether a court is correct in its assessment of things that there was no constitutional conven- the existence or terms of a convention. Unfor- tion constraining the prime minister from ad- tunately, the Jennings test can only usefully vising an election before the October 2009 date identify a subset of constitutional conventions, prescribed in the statute. Conacher’s appeal was and it can seriously mislead analysis in other also rejected. In May 2010, the Federal Court of cases. The combination of problems evident in Appeal upheld the lower court’s decision, stat- the Conacher decision raises concerns about ing that “no such convention exists” based on the institutional capacity of Canadian courts the evidentiary record.3 For many observers, to deal with constitutional conventions. Some the Conacher decision may seem unsurprising observers might suggest that this judicial weak- and solidly based on the existing jurisprudence ness could be remedied by a stricter insistence dealing with constitutional conventions. on Dicey’s dictum that conventions have no place in the courtroom.5 However, as Conacher A closer examination of the Federal Court’s illustrates, the law is sometimes so dependent decision, however, reveals some disturbing logic on supporting conventions that it is either un- and flaws in reasoning. Some of these problems enforceable or untenable without them. In the are not peculiar to the judge in the case, but absence of any recognized convention, the fixed flow from the positions adopted by the Supreme election date law would appear futile. Court of Canada in the patriation cases.4 Co- nacher usefully highlights the flaws of orthodox Some laws, such as Bill C-16, are crafted thinking in Canadian legal circles about the with the full knowledge and intent that the bare nature of conventions. In particular, there are bones of the law will be modified by support-
Constitutional Forum constitutionnel 129 ing conventions. Indeed, a number of statutes ernment statements, given during Parliament’s passed by the United Kingdom Parliament that consideration of Bill C-16, amount to an explicit now serve as Canada’s bedrock constitutional undertaking that elections would henceforth be documents granted personal powers to the gov- held on fixed election dates unless the govern- ernor general or lieutenant governors. And yet, ment of the day lost the confidence of the House it was understood at the time that those powers of Commons. Expert testimony from Peter would usually be exercised according to con- Russell argued that conventions could arise stitutional conventions that deprive a governor through such undertakings, becoming estab- of any personal choice in most circumstances. lished without the need for an actual precedent Had that understanding not existed, those stat- beforehand. Justice Shore considered the argu- utes would have been drafted in a very differ- ment by Conacher’s counsel – previously assert- ent fashion. Hundreds of federal and provincial ed in my own book7 – that conventions could statutes providing powers to the governor in arise in this way. However, the judge rejected council assume that the governor will in fact all of these points, holding that the legislative neither take part in nor reject the decisions of record was not consistent and that, in any case, their council. A great irony of both decisions constitutional conventions could not arise in a in Conacher arises from their emphatic recog- domestic setting through explicit undertakings. nition of the conventional right of the prime Although Justice Shore noted that Peter Hogg minister to advise the governor general on an had also recognized that conventions could election, while steadfastly refusing to recognize arise through explicit agreement, he took sol- any convention that might constrain when that ace in a footnote that appeared in Hogg’s text. election might be called. He noted, on the authority of this footnote, that R.T.E. Latham had written in 1949 of his be- Several interrelated problems are evident in lief that the only examples of conventions aris- Justice Shore’s handling of conventions in Co- ing through agreement were to be found in the nacher. The first difficulty arises with his dis- context of Commonwealth relations.8 The trial cussion of whether conventions must be based judge embraced Latham’s objection that domes- upon actual precedents or whether they can tic political actors could not create conventions arise through the explicit agreement of the rel- by agreement, because they could not bind their evant political actors. A second flaw is apparent successors to those commitments; by contrast in his interpretation of how the Jennings test in the international context, it is accepted that must be followed, particularly in the analysis governments can and do bind their successors. of the views of the relevant political actors con- cerning a purported conventional rule. The re- Justice Shore’s stance on these points does view of the historical record that supports this not survive close scrutiny. First of all, the sup- analysis displays serious weaknesses. These re- posed problem of actors not being able to bind lated problems may well have led to an errone- their successors in the domestic context is at ous conclusion about the existence of a consti- best something of a red herring and at worst tutional convention in this case. illogical. If one considers the context of tradi- tional conventions that arise through historical precedent, there is the inescapable assumption The Creation of Conventions by that future actors are bound by the views of Explicit Undertakings their predecessors. One must rely on statements by the relevant political actors in historical The application filed on Duff Conacher’s precedents that they believed themselves to be behalf argued that a constitutional convention bound by a rule in order for a convention to be had arisen to preclude the prime minister from recognized under the Jennings test. Many years advising the election in 2008, a year in advance can separate the historical events from the cur- of the date ostensibly set in Bill C-16’s amend- 6 rent situation, and yet it is accepted that present- ments to the Canada Elections Act. In essence, day actors are obliged to follow the precedents Conacher’s counsel argued that various gov- set in the past. Indeed, when the Supreme Court
130 Volume 19, Number 1, 2010 of Canada declared in the Patriation Reference framework, seems to qualify as a constitutional that there was a convention requiring substan- convention. Furthermore, British scholars ar- tial provincial consent to constitutional amend- gue that conventions can be created by unilat- ments affecting provincial powers, the majority eral declarations, such as when prime ministers decision only explicitly considered the prec- impose limits on how cabinet colleagues exer- edents and statements involving political actors cise their legal powers.11 These unilateral under- who had long left the stage, or even died. And takings can create conventions which bind that yet, the Court held that this convention contin- actor and even others over whom he or she has ued to exist, and as a consequence it bound the some power of enforcement. current government. Critics of this view might object that none of Secondly, there are a range of examples of these examples of purported conventions creat- constitutional conventions arising through the ed by agreement or declaration should really be explicit undertakings of the relevant actors. recognized as conventions until some precedent As Justice Shore noted, the most widely cited demonstrates that the actors are indeed observ- examples of these types of conventions arose ing a binding rule. But such an objection should during the Imperial Conferences in the 1920s also logically be applied to any convention es- and 1930s, in which the British and Domin- tablished by precedent. One should equally say ion governments agreed to a series of changes that we cannot know if there is still any con- in their relationships. These were considered as vention until current actors articulate a sense of binding rules right from the time of the agree- obligation and actually confirm their obedience ments. However, there are examples of domestic to the rule by demonstrably following it in rele- conventions as well. For example, the first min- vant circumstances. Indeed, sceptics of conven- isters agreed in 1987 that the prime minister tions argue that they should not be considered would only appoint senators from lists of nomi- rules, because in the final analysis political ac- nees submitted by provincial premiers until the tors are free to break with tradition and amend, Meech Lake Accord was formally ratified: “Until ignore, or destroy any convention at any time; the proposed amendment relating to the ap- they simply have to get away with their new be- pointments to the Senate comes into force, any haviour. 12 person summoned to fill a vacancy in the Sen- ate shall be chosen from among persons whose These general objections, however, seem to names have been submitted by the Government degenerate into reductio ad absurdum and pro- of the province to which the vacancy relates and vide as little analytical guidance as objections must be acceptable to the Queen’s Privy Coun- that there can be no enduring law because what cil for Canada.”9 This was the practice until the is “law” can be changed at any moment by the death of the Accord in 1990. Another example courts, legislature, or executive. The reality with of conventions arising through explicit un- both conventions and law is that there is a palpa- dertakings can be found in the commitments ble and enduring acceptance of a range of rules; made by the premiers of Nova Scotia and New these rules may change or be extinguished, but Brunswick that they would not allow Prince until then they are considered binding and gen- Edward Island to be isolated in any proceed- erally observed by most actors most of the time. ings under the regional veto formula enacted in the Constitutional Amendments Act10 of 1996. The Jennings Test More recently, one could view as constitutional conventions the undertakings of Prime Minis- Fundamental flaws in how the Federal ter Harper’s most recent Senate appointees that Court’s Conacher decision treats the convention they would resign within eight years of their ap- question stem from following what might now pointment, to honour the spirit of the govern- be called the orthodox view of conventions in ment’s legislative proposals to limit the tenure of Canada, given a stamp of approval by the Su- future senators. This informal obligation, bind- preme Court of Canada when it considered con- ing the actors in ways that transform the legal stitutional conventions in the Patriation Refer-
Constitutional Forum constitutionnel 131 ence. The majority of the Court in that reference noted, some constitutional conventions exist as case adopted Sir Ivor Jennings’s suggestions for binding rules even before a precedent has oc- identifying whether a convention exists: curred. Another issue is whether one considers both positive and negative precedents. Some- We have to ask ourselves three questions: first, times, what did not happen and why can be just what are the precedents; secondly, did the ac- as revealing, or even more so, than what has tors in the precedents believe that they were bound by a rule; and thirdly, is there a reason happened. Furthermore, an actor’s breach of an for the rule? A single precedent with a good apparent conventional obligation need not be reason may be enough to establish the rule. A evidence that the rule has ended or never ex- whole string of precedents without such a rea- isted, as the public reaction can be enough to son will be of no avail, unless it is perfectly cer- reinforce that obligation; at times, the exception tain that the persons concerned regarded them can indeed prove the rule. It is, therefore, quite as bound by it.13 erroneous to conclude that the absence of a clear line of consistent precedents demonstrates that Implicit in the Jennings approach is the belief political actors are not bound by convention. that a convention cannot be established with- out a clear historical precedent. So, in Conacher, Precedents can provide useful insights in Justice Shore appears at first glance to be on the identification of conventions, but their im- firm ground in declaring that there could be no portance should be viewed in perspective. Prec- convention restraining the timing of elections: edents can be informative and illustrative of “The three questions test fails because there are past political practices. At times there are clear no precedents in this regard from the relevant chains of events that can be discerned, and those actors.”14 precedents add weight to the identification of conventions. However, one must keep in mind Unfortunately, neither Jennings nor the Su- the passage of time and any shifts in political preme Court provided any useful guidelines as values that have occurred over the course of any to how to make this test work. Major problems set of precedents, and particularly since the last arise from trying to rely definitively on either precedent. The reactions of the attentive public historical precedents or statements by political are also important in the historical events sur- actors. It is essential to explore these problems veyed. As will be discussed below, the opinions in depth, because they may prove insurmount- and beliefs relevant to the identification of con- able in many situations. If the Jennings test is ventions cannot be limited to the prime politi- flawed, then judges should be aware of the flaws cal actors involved. before placing too much faith in it. And there do appear to be serious weaknesses in both Relying on precedents can be problematic the heavy reliance on precedents and the nar- in the great many contexts where precedents are row approach to examining the actors’ beliefs. few and far between or not publicly revealed. For A review of these problems can usefully lay the example, there are certain challenges in dealing foundation for a reassessment of the conven- with the relationships between the Canadian tions question put to the court in Conacher. governors and their first ministers. Most of what transpires is strictly confidential, leaving A reliance on historical precedents is a bit us with a very incomplete picture of what tran- like trying to navigate by the stars. It is all well spires; only occasionally are glimpses provided and good in a clear sky, but the heavens are in memoirs. Until recently, for example, com- not always obliging. The sky may be entirely mentators had to reach back to 1926 and 1896 clouded over, or large patches of the sky may for examples of a governor general refusing the be covered. Similarly, political precedents work advice of a prime minister. However, Adrienne wonderfully when they exist and when one can Clarkson’s memoirs reveal an occasion where tell which precedents are relevant to our con- she refused Paul Martin’s advice to hold his stitutional navigation. But historical precedents swearing-in ceremony on Parliament Hill. The can be completely missing, date from a bygone governor general refused on the grounds that era, or contradict one another. And as already
132 Volume 19, Number 1, 2010 this would have imposed an American presi- by someone (such as the prime minister) in a dential element, which she believed to be en- position to enforce them. While precedents can tirely inappropriate in a parliamentary system.15 offer important insights into identifying con- If Clarkson had not revealed this, we would still ventions, in the end they may be too problem- be left believing that the last instance of refused atic to be either determinative or essential to a advice was in 1926. Similarly, there has been convention. little general public knowledge of the occasions on which lieutenant governors have refused ad- Even so, Justice Shore may have been mis- vice. The published accounts of a refused elec- taken to assert that there were no relevant prec- tion call in Newfoundland16 in 1972 and of an edents that related to the federal fixed-date Albertan order in council17 in 1993 (authoriz- election legislation. Precedents from provincial ing a financial grant to an individual) leave one jurisdictions can also be relevant for constitu- wondering what else may be occurring behind tional conventions that relate to similar situ- the scenes that never sees the light of day. ations at the federal level. When dealing with conventions at the national level, constitution- Nevertheless, precedents can be particularly al scholars and actors alike refer to provincial helpful in cases where there is little or no com- precedents relating to the governors’ preroga- mentary by relevant actors or scholars on pos- tive powers, the details of the confidence con- sible rules and obligations. For example, there vention, or other aspects of responsible govern- is undoubtedly a constitutional convention that ment; federal precedents are also frequently the governor general issues the separate procla- cited in provincial politics. Where the princi- mations for the dissolution of Parliament and ples and details are similar, precedents from the for the issuance of election writs at the same other level of government are highly instructive time. However, this convention would fail the and widely relied upon. It is, therefore, only Jennings test, as there do not appear to be any logical to look to provincial precedents when substantive public comments on the necessity examining the operation of federal legislation, for the governor general to issue these procla- such as Bill C-16, that was explicitly drafted mations together. Indeed, there has been little according to the existing provincial models. public awareness until recently that these are Furthermore, the conventions relating to the separate actions. And yet, this practice is much calling of an election that would potentially be more than a simple habit or custom. When com- modified by the new legislation are essentially bined with the practical and constitutional rea- identical at the federal and provincial levels in sons for a rule, a string of precedents can help Canada. When Bill C-16 passed through Parlia- cement a practice into a binding convention. ment, similar legislation was to be found in five provinces and the Northwest Territories; since The Jennings test really only works for a that time, two more provinces have enacted subset of conventions which arise from politi- fixed election date legislation. By the time of the cal practice and develop into convention. And 2008 election call, there had already been five even then, this test can only easily identify con- provincial or territorial elections held in keep- ventions with a clear string of consistent prec- ing with a legislated rotation of elections every edents that reach into the contemporary era. If four years. British Columbia held an election on one were able to draw only from century-old May 17, 2005, the Northwest Territories on Oc- precedents, for example, one might well end tober 1, 2007, Ontario on October 4, 2007, and up simply trying to resurrect long-lapsed rules Newfoundland on October 9, 2007. In addition, that are no longer supported. While a number Prince Edward Island held an election on May of conventions can be categorized through this 18, 2007 in keeping with the future four-year test, others cannot because of unclear, contra- limit included in legislation passed just three dictory, or antiquated precedents. And conven- days before the election call.18 While these five tions can and do arise without any historical precedents may not be determinative, they do precedent, through express agreement among demonstrate that all other Canadian govern- all the relevant actors or unilateral declaration ments considered themselves bound by their
Constitutional Forum constitutionnel 133 four-year election cycles. They reveal a strong eral and the prime minister. This is problematic consensus that where fixed election date laws from the start since governors general in Canada exist, they must be respected.19 are precluded from speaking publicly about the exercise of their prerogative powers. But having The second part of the Jennings test is identified only two relevant actors, Shore then equally problematic in its operation, and its ap- went on to base his judgment not on statements plication in Conacher no less flawed. A serious by Stephen Harper, but on statements by Rob practical hurdle is the simple fact that political Nicholson, the cabinet minister who sponsored actors are not obliging enough to provide clear Bill C-16.21 Shore also approached the identifi- or forthright public statements about many cation of statements as if identifying conven- of the conventions they consider themselves tions involved the same process as statutory bound by. It is just impractical to require clear interpretation. He limited his examination to statements as a necessary requirement for de- statements contained in Hansard and in tran- termining every convention, because the search scripts of parliamentary committee hearings. will often be futile. For example, Prime Minis- However, one cannot restrict one’s examination ter Harper does not appear to have made any to the legislative record followed in statutory clear declarations about the conventions con- interpretation. Constitutional conventions are cerning the appointment of the governor gener- political rules and the political arena in which al when he advised the Queen to appoint David they are discussed is vast. Political figures give Johnston as the new governor general in 2010, vital statements of their views in myriad set- even though he set up an independent advisory tings beyond parliamentary precincts. In prin- committee to propose a non-partisan nominee. ciple and practice, one cannot restrict this anal- Jennings himself conceded that this part of the ysis to the legislative record. test may not be necessary when he asserted, “A single precedent with a good reason may be The views of the most relevant political ac- enough to establish the rule.”20 tors can be sufficient to determine a convention where the statements are clear and supported by There is also a temptation to take Jennings’s principle. For example, the creation of conven- words too literally, that all one should be con- tions through express agreement or declaration cerned with are the views of the actors directly relies upon the combination of a commitment involved in an historical precedent. The Su- to the new rule and a sound constitutional preme Court of Canada’s examination of the reason for the rule. However, such statements conventions in the 1981 Patriation Reference cannot always be relied upon to determine the was seriously weakened by not including any existence of a convention, because they may be statements by cabinet ministers later than 1965. missing, contradictory, or deliberately mislead- This omission was all the more curious since the ing. In the case of the governor general, prevail- 1971 Victoria Charter was negotiated with the ing customs actually prevent incumbents from explicit understanding that the agreement of publicly discussing their reasons for exercising every province was necessary to its enactment; their reserve powers in a particular way. and it failed once Quebec rescinded its support. As well, the Court did not bother to assess the views of provincial premiers, which is curious Conventions as Rules of Critical considering the convention in question related Morality to amendments to provincial powers. The views of a range of political leaders across time can On a broader perspective, the second part of be equally, and often more, informative than fo- the Jennings test promotes an untenable view of cusing simply on precedents plucked here and constitutional conventions as rules dependent there from their full context. upon the internal morality of specific political actors. One of the most often quoted definitions Justice Shore also took this part of the test of constitutional conventions is offered by O. literally when he concluded that the only rele- Hood Phillips; he said they are “rules of politi- vant actors in dissolution are the governor gen-
134 Volume 19, Number 1, 2010 cal practice which are regarded as binding by rule. But that determination must in practice be those to whom they apply.”22 At one level, this the prevailing view of the engaged community. is a sensible notion. Political actors cannot be bound by rules in the absence on an obligation. The literal view of the Jennings test adopted Certainly if none of the actors believe a conven- in Conacher wrongly implies that conventions tion exists, it is hard to argue from any perspec- are rules of internal morality, and thus holds tive that one does. But as F.F. Ridley points out, them hostage to the personal whims, igno- if a convention must be something that the po- rance, or connivance of individual political ac- litical actors feel obliged by, then they are freed tors. However, most constitutional conventions from that obligation at any time they no longer operate in reality as a system of critical moral- feel it. Indeed, he objected to Hood Phillips’s ity, with the preponderant views of the larger definition as a tautology: “Conventions are con- constitutional community framing moral ob- 24 sidered binding as long as they are considered ligations on the current political actors. An binding.”23 important step in understanding conventions better can come from moving beyond the Hood Conventions must be much more than rules Phillips notion of conventions as rules consid- of internal morality if they are to operate as ered binding by those to whom they apply. As constitutional rules at all. The reliance on the Geoffrey Marshall writes, “It would seem better internal sense of obligation opens the door to to define conventions as the rules of behaviour tremendous abuse and damage by the deliber- that ought to be regarded as binding by those ately deceptive and the innocently ignorant. But concerned in working the constitution when in reality our political system does not operate they have correctly interpreted the precedents in the vacuum of our political leaders’ internal and the relevant constitutional principles.”25 morality. Despite the determination of Cana- And Bradley and Ewing underscore that con- dian judges to adhere to the literal wording of ventions are best viewed as prescriptive rules Jennings’s test and only concern themselves and not just descriptions.26 Implicit in these with the beliefs of actors in specific historical views is the notion that there is a standard of precedents, our constitutional discourse is very behaviour that in some sense must be indepen- much richer. And the discussion and portrayal dent from the actual beliefs of the political ac- of the obligations facing our political actors is tors in a given situation. Jeremy Waldron made very much a product of this community discus- this point quite explicitly when he wrote about sion. The views of constitutional experts, think conventions: “They are normative. They are tank analysts, and leading journalists not only used for saying what ought to be done, and … fill the airwaves and print columns, but the for- they are used as a basis for criticism if some- mer in particular are routinely consulted and one’s behaviour does not live up to them. We quoted by politicians in their own assessment use them to judge behaviour, not merely to pre- of whether a convention exists. Legislative com- dict it.”27 mittees often invite scholars and other experts to give their perspectives on particular conven- tions and constitutional obligations. Thus, the The Evidence for a Convention views of key political actors may at times be Respecting Fixed Election Dates crucial, but the purported views of any one ac- tor may at times be outweighed by the consen- The question then becomes whether there sus of the broader political community. was a general expectation that the prime minis- ter would be obliged to respect the spirit of the Jennings’s own concession that conventions legislation. There are a number of components might arise through a single precedent with “a to the analysis required to answer this question. good reason” for the rule points to the impor- The first is the understanding of the legislators tant role of the larger constitutional communi- who debated and passed Bill C-16. Important ty. Jennings does not elaborate on who decides evidence for this understanding can be found whether there is a good enough reason for the in the specific statements given by the prime
Constitutional Forum constitutionnel 135 minister and other government spokespersons the opposition irresponsibly chooses to do.... regarding this legislation. Also relevant is the We brought in legislation, modelled on those behaviour of the government between the pas- of the provinces, to set elections every four years and set the next election for October sage of C-16 and the 2008 election, as well as the 30 public discussion of perceived constraints on 2009. the government. Shortly after the introduction of Bill C-16, Gov- Very clear messages were in fact given by ernment Whip Jay Hill is reported to have said: the prime minister and other members of cabi- I think it’s an important step and sends a sig- net about both the need for, and the intended ef- nal to Canadian people that this Prime Minis- fects of, fixed election date legislation. Four days ter and this government are willing to give up before Bill C-16 was introduced into the Com- that power of having the authority to call an mons, Prime Minster Harper gave a speech in election when he sees fit. He’s willing to turn Victoria in which he announced the intention that over to the Canadian people in the sense to legislate fixed elections dates: of having a law on the book that mandates when the next election will be, of course, other First, we will introduce a bill calling for fixed than the possibility of being defeated.31 election dates, at the federal level. As you know, BC – as well as Ontario, Newfoundland and On several occasions the minister principally Labrador – has gone this route. Fixed election responsible for the bill, Rob Nicholson, under- dates would prevent governments from calling lined a number of important statements about snap elections for short-term political advan- the purpose behind and operation of the bill. tage. They level the playing field for all parties. Nicholson’s speech at third reading clearly de- The rules are clear to everyone. In the case of tailed the intention to eliminate the prime min- our proposal, we will be asking for fixed elec- ister’s ability to call elections simply for partisan tion dates every four years, with the first vote advantage: set for the fall of 2009. Of course, such legis- lation always requires respect for confidence All parties agree with the principle that the votes. So the will of the majority in Parliament timing of elections should not be left to the always prevails. But fixed election dates stop Prime Minister, but should be set in advance leaders from trying to manipulate the calendar so all Canadians know when the next elec- simply for partisan political advantage. Now tion will occur.… What we have is a situation I know the polls say, if an election were held where the Prime Minister is able to choose the now, we’d win a majority. But the polls also say date of the general election, not based neces- that no one wants an unnecessary election. So sarily on what is in the best interests of the unless we’re defeated or prevented from gov- country, but what is in the best interests of his erning, we want to keep moving forward and or her political party. Bill C-16 would address to make this minority Parliament work over this problem and would produce a number of the next three years.28 other benefits.32 After that speech, Harper is quoted as telling And on the day that Parliament finally passed reporters, “The only way we can have justice is Bill C-16 the new minister in charge of the leg- to have a fixed election date, because an elec- islation, Peter Van Loan, said, “This important tion without a fixed election date is a tremen- piece of legislation will ensure fairness in the dous advantage for the party in power.”29 On electoral process by eliminating the power of the day the government introduced Bill C-16 the governing party to call an election to capi- into the House of Commons, Harper was asked talize on favourable political circumstances.”33 about the possibility of an early election call. He replied: The only exception to the legislation’s schedule of fixed election dates that govern- Mr. Speaker, the government is clear that it ment leaders emphasized in debate involved oc- will not be seeking an early election. At any casions when a government loses the confidence time Parliament can defeat the government of the House. As Nicholson told the House, “In and provoke an early election, if that is what particular, the Prime Minister’s prerogative to
136 Volume 19, Number 1, 2010 advise the Governor General on the dissolu- concluded: tion of Parliament is retained to allow him or her to advise dissolution in the event of a loss of [T]he practical effect of this is to say that the previous situation is no longer acceptable. confidence.”34 As noted earlier, however, Prime It will no longer be acceptable for the Prime Minister Harper had also alluded to a second Minister, virtually at any time but effectively possible justification for an early election, if the two or three years after a previous election, government was “prevented from governing.” to simply say, “We will now have an election because I think I can win.” The presumption The government statements announcing is that the election will be held in the fourth Bill C-16’s introduction, and during Parlia- year.… It will very quickly become the custom ment’s consideration of the measure, are very and the accepted practice.37 clear and consistent in several respects. These common messages include the recognition that After the enactment of Bill C-16 into law, there the pre-existing prime ministerial discretion followed a period of over a year in which the was unfair, and that the new legislation would government consistently indicated that the tim- put an end to that situation. The new norm ing of the next election depended entirely upon would be elections held at fixed dates. There whether the opposition decided to defeat it on was a recognition that this fixed schedule could a matter of confidence. The media commentary not necessarily apply to a minority government. also consistently worked with the assumption The principal exception related to the defeat of a that an election would only come if the govern- government on a matter of confidence. The oth- ment was defeated. There was speculation that er possible exception, vaguely alluded to, would the government was trying to manoeuvre the arise if a government was “prevented from gov- opposition into defeating it on a matter of con- erning,” implicitly through some parliamentary fidence, consistent with the belief that an elec- stalemate. tion would only come on a lost confidence vote. Constitutional scholars, government law- A selection of comments by media com- yers, and party officials who appeared before mentators can convey the tone of discussions the Commons and Senate committees that re- in this period. Alexander Panetta wrote, “Un- viewed Bill C-16 consistently voiced a view that less Harper turned his back on his promise of the measure would not provide legal constraints fixed election dates and unilaterally went to on the prime minister’s ability to request and se- the Governor General seeking a fresh mandate, cure an election whenever he wished. But most there could only be an election if all three op- did also indicate that the passage of such legisla- position parties combined to vote down the tion would significantly change expectations of minority Conservative government.”38 John Ivi- government behaviour and lead to an informal son mused, “The passage of the fixed-elections obligation to respect the fixed election sched- legislation means that the next general election ule. Michael Donison, then executive director will take place in October, 2009, unless all three of the Conservative Party, told the Commons opposition parties combine to bring down the committee, “This is really a relinquishment, a Harper government. Since none are yet ready voluntary relinquishment of prime ministerial to fight an election, Mr. Harper can plan for discretionary power when it comes to calling an another two years in office with some confi- election.… What fixed date elections do is cre- dence.”39 And Don Martin said, “Mr. Harper is ate the expectation in the political classes and handcuffed by his self-designated fixed election in the citizenry that this is the new norm, the date in October, 2009, so he needs three willing new standard.”35 Department of Justice lawyer partners to lose the confidence of Parliament Warren Newman also testified, “[T]his leg- and theoretically win big in an election.”40 Nor- islation contains a directive to officials, to the man Spector’s views are encapsulated in the fol- public at large, and to all those associated with lowing: “As Prime Minister, Stephen Harper’s the elections process that there will be an elec- second-biggest mistake was to legislate fixed tion on this date.”36 And as Patrick Monahan election dates, thereby transferring the power
Constitutional Forum constitutionnel 137 to call an election before October of next year to tice Shore would have it, the record is very clear the opposition parties.”41 Even Tom Flanagan, and consistent on this commitment. The com- Harper’s former chief of staff, wrote: mitment was sufficiently clear and widely - un derstood that for over a year after the enactment Before the passage of C-16, a prime minister of this legislation, media commentary and gov- could have responded by declaring gridlock ernment statements assumed that an early elec- and asking for an election. Even a behind-the- scenes threat to that effect would have prob- tion could only come about if the government ably sobered up the opposition parties because was defeated on a test of confidence. The pro- none actually want an election right now. But vincial and territorial precedents of elections with C-16 in place, the government may have held on their legislated dates further reinforced to resort to different tactics, declaring high- the consensus that the prime minister was un- priority bills to be matters of confidence and der an obligation not to call an early election daring the opposition to defeat them.42 unless defeated or stalemated. Those provincial precedents and the adoption of fixed election More than a year after the enactment of the date legislation in seven provinces provide good fixed-date legislation, Ian MacDonald believed evidence of the broadly held belief in the need that the prime minister no longer had the per- to respect fixed election dates. sonal discretion to call an early election:
The Harper Conservatives, like the Pearson Liberals in 1965, are tired of a minority House, Conclusion and itching to go to the polls. But by intro- It is accepted by modern British and Cana- ducing a fixed election date of October 2009, dian scholars who have made any significant Harper has denied himself a prime minister’s study of the matter that conventions can be greatest advantage of incumbency - the power of dissolving the House whenever he thinks created through undertakings by the relevant it’s a nice day for an election. He thought it was actors. And there is considerable evidence that the right thing to do. Go figure. As a result, he such an understanding was indeed given. In must await his government’s demise, or some- light of the repeated commitments made by how engineer his defeat in the House.43 leading government actors and the general ac- ceptance of those commitments as binding, it From the brief review of a range of political appears that a constitutional convention had commentators, it is clear that a general belief indeed been created. had developed that the fixed date legislation created a new set of obligations concerning The reaction of the informed public to the when and how elections should be called. early election call adds further weight to the conclusion that a convention did – and contin- With this review in hand, of the history ues to – exist. In the run-up to the actual elec- of the fixed-date election legislation and the tion call, the government had started to spin the events leading up to the 2008 election, one can obligation under the legislation as only neces- reach some clearer conclusions as to whether sarily applying to majority governments. And there was indeed a constitutional convention it argued that the House of Commons had be- constraining the prime minister from call- come dysfunctional, and that meetings between ing an early election. Numerous statements by the prime minister and the opposition leaders the prime minister, cabinet ministers, and the failed to secure any commitment from them to executive director of the party consistently re- allow Parliament to continue to operate until inforced the notion that this legislation meant the scheduled election. Far from saying that the an end to the prime minister’s discretion to call prime minister was under no obligation at all early elections. There was a commitment to a to respect the fixed date legislation, government new norm of scheduled election dates. The only statements seemed to be at pains to reconcile exceptions would be if a government lost a vote the need for an early election with the legisla- of confidence or somehow was prevented from tion. The generally negative media reaction to governing. Far from being ambiguous, as Jus- the early election call also reinforced the belief
138 Volume 19, Number 1, 2010 that the prime minister was evading a clear * Associate Professor, Department of Political duty, even if there was a legal loophole he could Science, Simon Fraser University exploit. 1 2009 FC 920 [“Conacher (FC)”]. 2 Bill C-16, An Act to amend the Canada In conclusion, it does appear that the prime Elections Act, 1st Sess., 38th Parl., 2007 (assented minister broke a convention in securing an to 3 May 2007). early election. The reasoning on this question in 3 Conacher v. Canada (Prime Minister), 2010 FCA Conacher is deeply flawed. The judge was sim- 131 at para. 12 (CanLII). Democracy Watch im- ply wrong in asserting that conventions cannot mediately announced its intention to seek leave to appeal the decision to the Supreme Court of exist in the absence of precedents. The heavy Canada. See: Democracy Watch, News Release, reliance on the Jennings test reveals a serious “Federal Court of Appeal Ruling Means Harper deficiency in the judicial approach to conven- Conservatives Broke Their 2006 Election Prom- tions. That test has not been widely adopted ise to Fix Election Dates” (26 May 2010), online: elsewhere; indeed, it has not been embraced Democracy Watch
Constitutional Forum constitutionnel 139 Canadian Parliamentary Review 13 at 16. Parl., 1st sess., No. 020 (3 October 2006) at 2, 10. 17 Joan Crockatt, “Lt.-Gov. Wouldn’t OK Grant 36 House of Commons Standing Committee on from Kowalski” Edmonton Journal (23 December Procedure and House Affairs, Evidence, 39th 1994) A1. Parl., 1st sess., No. 018 (26 September 2006) at 6. 18 The P.E.I. precedent is all the more instructive 37 Standing Senate Committee on Legal and Con-Con- since Bill 38 had originally stipulated that an stitutional Affairs, Proceedings, 39th Parl., 1st election must be held by May 2008, and there- sess., Issue 21 (15 February 2007) at 48, 53. after every four years. The 2008 date marked the 38 Alexander Panetta, Telegraph Journal (17 March maximum five year life allowed under the Con- 2007) A5. stitution. Instead, the premier called the 2007 39 John Ivison, “Do the shuffle” National Post (11 election at the four-year mark. August 2007) A5. 19 Since the 2008 federal election there has been a 40 Don Martin, “Dion left with two bad options” second provincial election in B.C. (2010), held National Post (4 October 2007), online: Nation- according to the fixed election date legislation. alPost.com
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