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