“What we have is a situation where the prime minister is able to choose the date of the election, not based necessarily on the best interests of the country but on the best interests of his or her political party.  I believe Bill C-16 would address those concerns. . . . "Instead of the Prime Minister and a small group of advisers being the only ones who know when the country will move into the next general election, when this bill is passed, all Canadians will have that knowledge, which makes it fair. . . . This Prime Minister will live by the law and spirit of this particular piece of legislation.  He and this government are driving this democratic reform. ”

Hon. Rob Nicholson (then-Leader of the Government in the House of Commons and Minister for Democratic Reform), speaking in the House of Commons on September 18, 2006 about the fixed election date measures in Bill C-16, which became law on May 3, 2007

Wednesday, October 1, 2008

OTTAWA - Today, Democracy Watch released details about the application it has filed in the Federal Court of Canada challenging the legality of the recent federal election call.  (To see the Notice of Application, click here; To see Democracy Watch's legal arguments, click here; 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 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)
   
Democracy Watch has filed a motion to have a hearing of its application before the October 14th voting day.  The motion will be considered by the Federal Court on Thursday, October 2, 2008 at The D'Arcy McGee Building, 90 Sparks St. in Ottawa after 9:30 am. (To see the motion, click here)
   
Democracy Watch has applied 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 a vote of non-confidence in the Conservative government had not yet occurred in the House of Commons, and therefore the dissolution of Parliament and the calling of the election was illegal.
   
Democracy Watch is filing this case not only to challenge the calling of the current election, but also to win a ruling that will prohibit future prime ministers from calling elections before a vote of non-confidence in the House of Commons has occurred.
   
Everything Conservative government Cabinet ministers and representatives said about their Bill C-16 in the House of Commons and Senate made it clear that the legal effect of the Bill is to require the government (whether minority or majority) to lose a vote of confidence in the House of Commons before the Prime Minister can advise the Governor General to dissolve Parliament and call an election:

"At this time, there is nothing stopping any Prime Minister who sees an electoral advantage from asking the Governor General to dissolve Parliament and call an election, even though there is no issue that could in any way be described as a confidence matter.  However, under this bill a Prime Minister would be restricted in that situation."

Hon. Rob Nicholson, speaking to a Senate Committee on December 6, 2006
about the fixed election date measures in Bill C-16

Opposition party members in the House of Commons and Senate repeatedly and specifically questioned Conservative Cabinet Minister Nicholson (who was the Minister responsible at the time for the Bill) about how the Prime Minister would be restricted if Bill C-16 became law, and he consistently said things similar to what he told a Senate Committee on December 6, 2006, that "There would have to be non-confidence votes taken by the opposition parties" before the Prime Minister could advise the Governor General to call an election.
   
Statements at the time by opposition party representatives make it clear that their support of Bill C-16 (which was needed to pass the bill in a minority government situation) was based on the explanations by Minister Nicholson and other representatives of the Conservative government that the Bill prohibits a prime minister from calling an election before a vote of non-confidence in the government occurs in the House of Commons.
   
On May 3, 2007, when Bill C-16 became law, the Conservative government issued a news release in which then-Minister for Democratic Reform Peter Van Loan was quoted as saying "This important piece of legislation will ensure fairness in the electoral process by eliminating the power of the governing party to call an election to capitalize on favourable political circumstances."
   
In addition, Democracy Watch believes that, given the fixed election date measures, Prime Minister Harper's election call violates section 3 of the Charter of Rights and Freedoms.  In three past cases, the Supreme Court of Canada has ruled that section 3 includes the right to fair elections.
   
As Minister Nicholson said about Bill C-16 in the House of Commons on September 18, 2006: "This legislation provides greater fairness, increased transparency and predictability" for federal elections."  He went on to detail how advance notice of an election is more fair for people who want to run as candidates, volunteer on campaigns, vote or participate in other ways.
   
"All of the evidence shows that the intent and effect of the 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 current federal election," said Duff Conacher, Coordinator of Democracy Watch.  "As well, the clear intent of the fixed election date measures is to make elections fair for all political parties 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 current federal election."
   
"For all these reasons, and to prevent future prime ministers from call unfair snap elections, Democracy Watch is applying to the Federal Court for a ruling that the calling of the current federal election 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 Canada file number T-1500-08.