Fixed Election Hypocrisy...The Justice Minister's Version

If there was no reason, you are right. I indicated that if for no reason the Prime Minister went after three years and nine months and asked the Governor General to dissolve in the face of legislation, that would be a very difficult constitutional question facing the Governor General. Depending on how the Prime Minister survived that hurdle, it would seem to be an issue for the public of Canada, because it would fly in the face of the legislation before you today. - Rob Nicholson December 6, 2006.

What changed since then Rob?????

On December 6, 2006, Justice Minister Rob Nicholson gave evidence at Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. He was adamant about the Senate doing the right thing and passing Bill C-16,an act to amend the Canada Elections Act. The purpose of this bill is quite straightforward. It amends the Canada Elections Act to bring in fixed election dates at the federal level in Canada. It provides 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 the bill comes into force to be held on Monday, October 19, 2009.

I provide to you the link to the entire document: click here.

Let us review some of Mr. Nicholson's testimony shall we:

I am pleased to be here as you begin your discussions on Bill C-16, which provides for fixed dates for general elections.

Fixed dates for general elections was an electoral commitment of the government. Moreover, I am pleased to note that after being thoroughly debated in the House of Commons and thoroughly scrutinized by the Standing Committee on Procedure and House Affairs, Bill C-16 was passed without amendment and with all-party support.

I will begin with a description of the current process for calling general elections and discuss some of the difficulties that we see associated with it. I will then present some specifics of the bill and some of the reasons I believe it will be beneficial. I will also talk about why the government chose to draft the bill in the way it did, and why the route we took was both necessary and effective. Finally, I will be glad to answer any questions.

As you know, today it is the prerogative of a prime minister whose government has not lost the confidence of the House of Commons to select what he or she regards as a propitious time for on election to renew the government's mandate. The Prime Minister requests the dissolution of the House of Commons from the Governor General. If the Governor General agrees, he or she proclaims the date of the election. This is a situation in which the Prime Minister is able to choose the date of the general election, not necessarily based on what is in the best interests of the country, but based on what is in the best interests of his or her party. Bill C-16 will address this problem and will, I think, produce a number of other benefits.

Really Rob? Please continue. You've caught our interest now.

The government's bill provides that the date for the next general election will be Monday, October 19, 2009. Of course, that will be the date only if the government is able to retain the confidence of the House until then. The bill does not affect the powers of the Governor General to call an election sooner if a government loses the confidence of the House.

For example, if the government were to be defeated tomorrow, a general election would be held according to the normal practice. However, the subsequent election would be scheduled for the third Monday in October in the fourth calendar year after the next election. That is the normal model that would be established by this bill. General elections will occur on the third Monday of October in the fourth calendar year following the previous general election.

We chose the third Monday of October because it is a date that is likely to maximize voter turnout and will be least likely to conflict with cultural or religious holidays or elections in other jurisdictions. That raises an additional feature of the bill to which I want to draw your attention: it provides for an alternate election date in the event of a conflict with a date of religious or cultural significance or an election in another jurisdiction.

Maximize vote? Cultural or religious holidays? You mean like having an election the day after Thanksgiving Rob?

As to the benefits of this bill, fixed-date elections will provide numerous benefits to our political system. With fixed- date elections, the timing of general elections will be known to all, which will provide for greater fairness. Instead of the governing party having the advantage of determining when the next election will take place and being the single party that may know for up to several months when it will occur, all parties will be on an equal footing.

Another key advantage of fixed dates for general elections is that this measure will provide transparency as to when the general elections will be held, rather than decisions about election dates being made behind closed doors. General election dates will be public knowledge.

Fixed dates for elections will also allow for improved governance. For example, fixed dates for general elections will allow for better parliamentary planning. Members of parliamentary committees will be able to set out their agendas well in advance, which will make the work of committees and Parliament as a whole more efficient.

AHA. I see. Pardon us if we are beginning to laugh at the blatant hypocrisy. You're only 2 minutes into your evidence and I am ready to vomit Rob.

The Chairman: Thank you for that overview.

I have a very simple question. In Canada we celebrate Thanksgiving in the month of October; can you tell us what the fixed date is for the Thanksgiving Day break and holiday and whether this bill will conflict with the celebration?

Mr. Nicholson: I do not think so. One of the advantages of the date that we have chosen is that Thanksgiving, as you know, is the second Monday in October, whereas our election date is the third Monday. Inasmuch as there will be advance polls available in the previous week, it seems to me that, for those individuals who for any reason could not be there on the third Monday of October, the opportunity would be there for them to vote at the advance polls. Also, because Thanksgiving is a time when people generally get together, that again will enhance voter turnout. For those reasons I think the third Monday is a good date.

Ah. The answer to my question above.

Senator Milne: Why, then, when the Lortie commission in 1992 was looking at all this, did they comment that this type of system in Bill C-16 would not work because the government could always orchestrate its own defeat under such a system. They felt that the proposal for fixed terms presented several major problems. How does this bill address that concern?

Mr. Nicholson: I am not quite sure. Ultimately, if a government were orchestrating its own defeat it would have to be a decision of the House. Again, it would be a situation in which the government, for whatever reason, had lost the confidence of the House. There would have to be non-confidence votes taken by the opposition parties. I cannot see that.

Senator Milne: Yes, but you and I know it can be orchestrated.

Mr. Nicholson: I would expect that any government, in presenting legislation that it hoped would be passed by the House of Commons, would do so believing it to be in the best interests of the country; and that should certainly be its guiding principle. If it was the decision of the opposition parties to defeat the government, the confidence convention as preserved by this bill would apply and, again, it would be within the discretion of the Governor General.

Guiding Principles? What are those?

The Chairman: Senator Joyal, you have put that question to the minister and you have put it to the lawyer. They have both responded to it. I gather that you are not satisfied with the responses that either of them have given you to the suggestion that this bill, in putting in a limit of four years, is not allowing the full five years now permitted in the Constitution. You are not accepting that.

Senator Joyal: No, I am not accepting that. I think that the very existence of the wording of section 50 provides for an additional possible 12 months that will not be possible with the amendments contained in Bill C-16. That is my point. It limits the possible life of a Parliament of an additional possible 12 months. That is essentially the impact of this bill.

We can agree to disagree on your interpretation of section 50, and I submit to you that, if the government wants to change that, it could go through section 44 of the Constitution in relation to this very section of the Constitution, because it pertains to the House of Commons only and does not affect the institutions of Parliament per se, or the essential characteristics of Parliament.

That being said, I would like to continue on the other issue, the prerogative of the executive. As the minister said properly, the net effect of this bill is to remove the prerogative of the Prime Minister to go and seek dissolution of Parliament at any time before four years, and not after four years because now he will be prevented from doing this with Bill C-16. It is essentially to fetter the prerogative of the Prime Minister, after three and a half years or three years and nine months, to go to the Governor General and seek dissolution. The Governor General would be put in a very difficult position if the Governor General received a visit from the Prime Minister with a request to dissolve Parliament after three years and nine months, according to this bill.

In other words, for the Prime Minister to be able to go to the Governor General and request dissolution, the Prime Minister would have to have a vote of non-confidence formally registered in Parliament, if I understand the way the prerogative will be acted upon. Am I right or wrong?
Mr. Nicholson: I did not want to leave the impression that only a four-year period of time could take place. If, in fact, Parliament is dissolved by reason of a minority government, that will leave four years and six or eight months, but less than five years. You say the only way would be by a motion of non-confidence. I think I indicated that, for instance, if the government lost the confidence of the House of Commons by reason of the defeat of the budget implementation bill, that is not a resolution of the House of Commons. Nonetheless, it affects the confidence convention, and the Prime Minister would be within his or her right of attending upon the Governor General and asking for dissolution of Parliament on that basis.

Senator Joyal: With respect to any other issue, if the government —

Mr. Nicholson: If there was no reason, you are right. I indicated that if for no reason the Prime Minister went after three years and nine months and asked the Governor General to dissolve in the face of legislation, that would be a very difficult constitutional question facing the Governor General. Depending on how the Prime Minister survived that hurdle, it would seem to be an issue for the public of Canada, because it would fly in the face of the legislation before you today.

Senator Joyal: In other words, if you claim that the prerogative of the Governor General would not be impaired by this bill, in that context, the Governor General could send back the Prime Minister asking him to return with a clear vote of non-confidence from the House of Commons?
Mr. Nicholson: Again, I will not presuppose the Governor General's actions, but I imagine that the Governor General, any Governor General, would want to be satisfied that the Prime Minister had lost the confidence of the House. Whether that was by means of a resolution or by the defeat of an important piece of legislation, as in the example I provided, the Governor General would be within his or her right to ask those questions.

Wake up Canada! You're being snowed!