“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

Tuesday, September 8, 2009

OTTAWA - Today, in the East Courtroom of the Supreme Court of Canada building in Ottawa, a Federal Court Judge is hearing Democracy Watch's application challenging the legality of Conservative Minister Stephen Harper's September 2008 federal election call (ironically, exactly one year after the last election campaign began).

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.

"Overwhelming 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 snap federal election in September 2008," 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, 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."

"If Democracy Watch wins, the Federal Court 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," said Conacher.

The case will also determine the effect and 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.

On October 3, 2008, Federal Court Prothonotary R. Aronovitch ruled that there was not enough time left before the election day last October 14th 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, 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 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;
• 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.
  

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 (which became law in May 2007) 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.

Statements at the time by opposition party representatives made 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 then-Minister for Democratic Reform Rob 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.

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 was false.

In addition, Democracy Watch's position is that, given the fixed election date measures, Prime Minister Harper's election call violates section 3 of the Canadian 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.

"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 Canada file number T-1500-08.