“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.”

Hon. Rob Nicholson (then-Leader of the Government in the House of Commons and Minister for Democratic Reform), testifying before the Standing Senate Committee on Legal and
Constitutional Affairs on December 6, 2006 about the fixed election date measures in Bill C-16, which became law on May 3, 2007

Wednesday, January 13, 2010

OTTAWA - Today, Democracy Watch released details about its appeal to the Federal Court of Appeal of Federal Court Justice Michel Shore's ruling in September that the Bill C-16 fixed-election-date measures did not change the Canada Elections Act to prohibit the Prime Minister in any way from calling snap elections, and that therefore Conservative Minister Stephen Harper's September 2008 snap federal election call was a matter for voters, not the courts, to rule on.

Democracy Watch called on Prime Minister Harper not to request another snap election from the Governor General until the Supreme Court of Canada has ruled on the effect of the fixed-election-date measures.

As the first such case in the world, the ruling in the case will also affect the enforceability of similar fixed-election-date laws in British Columbia, Manitoba, Newfoundland and Labrador, Ontario, Prince Edward Island, Saskatchewan and the Northwest Territories and proposed laws in other provinces and parliamentary democracies around the world.

Democracy Watch's position is that Justice Shore erred in ruling that the measures did not change the Act to fix federal election dates and prohibit the Prime Minister from requesting that the Governor General dissolve Parliament and call an election unless the government loses a vote of confidence in Parliament or the fixed-election date is approaching, and erred in ruling that the measures did not establish a constitutional convention, and erred in ruling that Prime Minister Harper's snap election call did not violate the Charter rights of Canadians to fair elections, and overall erred in ruling that the courts should not review such actions by prime ministers.

Democracy Watch will seek a quick hearing of the case if needed to prevent Prime Minister Harper from calling another snap election as some are speculating he will do in March to pre-empt further investigation into the treatment of detainees in the war in Afghanistan, and to pre-empt rulings on the Conservative Party-labelled government spending cheques handed out by several Cabinet ministers and Conservative MPs, and rulings on the ethics complaints filed about fundraising events held by a Conservative Cabinet minister and parliamentary secretary that involved lobbyists, and to pre-empt the release of regular reports by the federal Auditor General.

Democracy Watch has also created the Facebook page "Canadians Against Snap Federal Elections" to help Canadians protest another snap federal election call by any prime minister.

If the Federal Court of Appeal agrees with Democracy Watch's position, it will rule that Prime Minister Harper violated the fixed-election-date measures when he requested that the Governor General dissolve Parliament and call a federal election in September 2008 before a vote of non-confidence had occurred in Parliament, and as a result future snap election calls will be prohibited.  However, such a ruling will not affect the outcome of the October 2008 federal election.

If the Federal Court of Appeal disagrees with Democracy Watch's position, it will rule that the measures did not change the Canada Elections Act to restrict the Prime Minister, and therefore that Prime Minister Harper broke his 2006 election promise to enact measures that fix federal election dates.

"If Democracy Watch wins, the Federal Court of Appeal will rule that Prime Minister Harper is a dishonest lawbreaker because he gave false reasons for calling the snap federal election last September in violation of his own fixed-election-date law.  If Democracy Watch loses, the court will rule that Prime Minister Harper is a dishonest promise-breaker because he failed to keep his 2006 election promise to pass a law fixing election dates, and the enforceability of similar laws across Canada will be undermined," said Duff Conacher, Coordinator of Democracy Watch.

"Overwhelming evidence shows that the intent and effect of the federal fixed election date measures prohibits the Prime Minister from calling an election before his governing party has lost a confidence vote in the House of Commons, something that did not occur before Prime Minister Harper called the snap federal election in September 2008," said Conacher.  "As well, the clear intent of the fixed election date measures was to make elections fair for all political parties, interest groups and citizens wanting to participate in the election by letting everyone know well in advance when it will happen, something that also did not occur when Prime Minister Harper suddenly called the federal election in September 2008."

Democracy Watch's position is that Justice Shore's September 17, 2009 ruling, which was made just nine days after the court hearing, contained the following errors of fact and law (To see Democracy Watch's Notice of Appeal summarizing the appeal, click here (PDF format) To see Democracy Watch's appeal factum for its full legal arguments, click here (PDF format)):

• the error of concluding that Democracy Watch was challenging the Governor General's constitutional power to dissolve Parliament and call an election, and challenging the holding and results of the 2008 federal election -- in fact, Democracy Watch was only challenging the legality of Prime Minister Harper's September 7, 2008 request to the Governor General to dissolve Parliament and call an election;
  
• the error of concluding in paras. 48-59 and 73-75 of the ruling that the statements made by Cabinet ministers and other representatives of the Conservative government, and the opposition parties, in the House of Commons and Senate about Bill C-16 were "ambiguous" -- in fact, viewed in their full context every statement made was clear that all agreed that Bill C-16 fixed election dates every four years unless the government loses a vote of confidence in Parliament;
• the error of concluding in paras. 73-75 that, therefore, Bill C-16 did not change the Canada Elections Act at all and so actions like calling snap elections should not be reviewed by the courts -- in fact, Bill C-16 fixed federal election dates for every four years, and therefore did change the law, and the only logical conclusion (again, given the statements by Conservatives about the Bill) is that the changes also prohibit the Prime Minister from calling snap elections;
  
• the error of concluding in paras. 34-47 and 70-72 of the ruling that the agreement of all the parties represented in Parliament, and the Royal Assent of the Governor General, in enacting Bill C-16, following the precedents set by the B.C. and Ontario legislatures enacting similar bills and complying with their fixed-election dates, does not establish a constitutional convention that prohibits the Prime Minister from requesting the dissolution of Parliament and calling of a federal election by the Governor General unless the government loses a vote of confidence in the House of Commons, or the fixed election date is approaching;
  
• the error of concluding in paras. 60-61 and 76 of the ruling that Democracy Watch presented no evidence or legal arguments about the unfairness of the snap election call to the rights of voters under section 3 of the Canadian Charter of Rights and Freedoms -- in fact, Democracy Watch presented past court rulings and the legal argument that based on the passage of Bill C-16 voters had a new, clear right to assume that snap elections would not occur, and also presented all of the following affidavits showing how the September 2008 snap election call had unfair effects on individuals and political parties:
• To see Democracy Watch Coordinator Duff Conacher's Affidavit, Part I (Affidavit and Exhibits A to F), click here and Part II (Exhibits G to M), click here;
  
• To see potential election candidate Sébastien Thériault's Affidavit in support of the case, click here;
  
• To see election volunteer Amanda Judd's Affidavit in support of the case, click here;
• To see voter Gail Nestel's Affidavit in support of the case, click here;
  
• To see former Director of Communications of the Green Party of Canada John Bennett's Affidavit in support of the case, click here, and;
  
• To see Progressive Canadian Party Leader Sinclair Stevens' Affidavit in support of the case, click here.
• and, finally, the error of concluding in para. 62 of the ruling that if Charter rights were upheld, the results of every snap election called since 1982 (when the Charter was enacted) could be challenged -- in contrast, as Democracy Watch set out in its presentations to the Federal Court, the passage of Bill C-16 creates a new, clear right for voters to expect fixed-election dates, so past elections could not be challenged because those clear rights did not exist before Bill C-16 became law in May 2007.
  

"For all these reasons, and to prevent future prime ministers from call unfair snap elections, Democracy Watch has applied to the Federal Court for a ruling that Prime Minister Harper's calling of the federal election in September 2008 was a violation of the fixed election date law and Canadians' rights under the Charter," said Conacher.

Peter Rosenthal of the Toronto law firm Roach, Schwartz and Associates is Democracy Watch's lawyer for the case.  The case is Federal Court of Appeal file number A-427-09.

Democracy Watch applied to Federal Court on September 22, 2008 for an order that Prime Minister Stephen Harper's advice to the Governor General of Canada on September 7, 2008 to dissolve Parliament and call an election violated the fixed election date measures that Bill C-16 added to the Canada Elections Act because the Conservative government had not lost a vote of confidence in the House of Commons.

On October 3, 2008, Federal Court Prothonotary R. Aronovitch ruled that there was not enough time left before the election day on October 14, 2008 to have the application fully considered by the Federal Court, and so the case was put on the regular Federal Court schedule.  A full consideration of Democracy Watch's application is needed, the ruling stated, because "the application raises important issues." (To see the ruling on the motion, click here)

Democracy Watch filed the case not only to challenge Prime Minister Harper's calling of the election in September 2008, but also to win a ruling that will prohibit future election calls by prime ministers before a vote of non-confidence in the House of Commons has occurred.

• To see the Notice of Application in Federal Court, click here; 
• To see Democracy Watch's legal arguments to the Federal Court, click here; 
• To see University of Toronto Professor Emeritus of Political Science Peter Russell's Affidavit in support of the case, click here;
  
• To see University of Toronto Professor of Political Science Lawrence LeDuc's Affidavit in support of the case, click here; 
• To see University of Ottawa Professor of Law Errol Mendes Affidavit in support of the case, click here;

Bill C-16 was presented in the House of Commons and Senate by then-Minister for Democratic Reform Rob Nicholson and other representatives of the Conservative government.

Mr. Nicholson is now Attorney General of Canada and Minister of Justice, and his and Prime Minister Harper's lawyers are now arguing that essentially everything Minister Nicholson said about Bill C-16 in Parliament was false.