It was suggested by some that holding the federal election before the scheduled date of October 2009 was unconstitutional or at the least illegal.
Several pundits - but, notably, none of the leaders of the major political parties - suggested that the Governor General should have refused Prime Minister Stephen Harper’s request for an early dissolution of Parliament. This suggestion is not only ill-begotten but constitutionally dangerous as well.
If the prime minister played loose with the idea of a fixed election date, it was only because the statute’s text allowed him to. Moreover, the Governor General acted wholly appropriately in acceding to Harper’s request. Had she refused it, she would likely have triggered a constitutional crisis.
The suggestion that Harper violated the statute by seeking a dissolution prior to October 2009 misreads the statute which explicitly preserves the powers of the Governor General, “including the power to dissolve parliament at the Governor General’s discretion.” The fixed election date of the third Monday in October every four years, starting in October 2009, is made subject to the quoted provision.
Almost exactly the same language was used in Ontario and similar language in British Columbia when those provinces enacted fixed election date legislation.
The difference being that majority governments in those two provinces allowed the electoral clock to run out, leading to general elections at the fixed election dates in B.C. (May 2005) and Ontario (October 2007). As is the case with the federal legislation, the premiers in those provinces could have sought an earlier dissolution, at their political but not legal peril.
The best constitutional reading of the federal fixed election date is that it puts a four-year outer limit on the length of any parliament, down from the five-year limit set in both the Constitution Act, 1867 and the Charter.
Since the Second World War, majority governments in Canada have rarely strayed much beyond four years before calling an election.
Those who did were punished at the polls: Pierre Trudeau in 1979 (waiting almost four years and eight months); John Turner in 1984 (four years and three months); Kim Campbell in 1993 (four years and nine months).
The fixed election date legislation sets out in statute what politicians have learned the hard way: four years is about the outer limit for Canadians’ tolerance for any government in Ottawa.
Should the Governor General have said no to Stephen Harper? This argument has to be based on the contention that the fixed date legislation either created or overruled applicable constitutional conventions regarding the Governor General’s exercise of discretion in responding to a prime minister’s request for a dissolution of Parliament.
It cannot be based on the argument that the fixed election date legislation impacts the governor general’s constitutional powers because that would require a formal amendment to the Constitution, and because of the clear language of the statute that the governor general’s powers are preserved. Conventions, on the other hand, purport to circumscribe how constitutional power is exercised.
As a general matter, the accepted constitutional convention is that the governor general accepts the prime minister’s request for an early dissolution of a minority government after “a reasonable length of time” has elapsed since the last election.
Peter Russell has done a masterful job of explaining this in his new well-timed book Two Cheers for Minority Government. What constitutes “a reasonable time” is subject to debate; it is likely between six and 12 months. In any event, at over two and a half years, Stephen Harper had well surpassed it.
The essence of a constitutional convention is the conscious fidelity to precedent for a purpose. Existing constitutional conventions cannot be brushed aside so easily by a statute structured on the idea of a four-year fixed date but with a carefully drafted escape clause.
Had Gov. Gen. Michaëlle Jean refused the prime minister, she would have surely created a constitutional and political crisis that would have made King-Byng of 1926 pale in comparison.
Unlike Arthur Meighen in 1926, there is no indication that any other leader wanted to attempt to, let alone would have been successful, in forming a government with the confidence of the House.
In the absence of a prime minister in waiting, the Governor General had no choice but to accede to her prime minister’s request. What of the fixed date legislation creating a new constitutional convention?
The short answer to that is not yet but perhaps one day. Convention is about historical practice.
In the absence of either, no convention can be created. If after three or four fixed election cycles, a prime minister with a majority government or a working minority government would attempt to seek an early dissolution while still maintaining the confidence of the House, a lieutenant-governor or a governor general might well have a basis to refuse a prime minister’s request.
And that is where things would start to get really interesting.
Adam Dodek teaches at the University of Ottawa’s Faculty of Law. He can be reached at [email protected].
