Monday, September 27, 2010

OTTAWA - Today, Democracy Watch announced that it has applied to the Supreme Court of Canada for leave to appeal the Federal Court of Appeal's May ruling on the federal fixed election date measures (application file #33848).

• To see Democracy Watch's Notice of Leave To Appeal to the Supreme Court of Canada, click here (PDF format);
• To see Democracy Watch's Leave To Appeal factum for its full legal arguments, click here (PDF format)
• To see Democracy Watch's Reply to the government's factum, click here
  

On May 25th, in a unanimous ruling issued the same day as the court hearing, the Federal Court of Appeal ruled that the Bill C-16 fixed-election-date measures passed by Parliament in May 2007 were too vague and so did not create a constitutional convention or change the Canada Elections Act to prohibit the Prime Minister from calling snap elections, and that therefore Conservative Prime Minister Stephen Harper's September 2008 snap federal election call was legal.  The Court of Appeal also ruled that the Charter right of Canadians to fair elections were not violated by Prime Minister Harper's snap election call (court file #A-427-09).

As the first such ruling in the world, the Federal Court of Appeal's ruling effectively cancelled similar fixed-election-date laws in British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Ontario, Prince Edward Island, Saskatchewan and the Northwest Territories (NOTE: Five premiers (in B.C., Ontario, Newfoundland, New Brunswick and the Northwest Territories) have called elections in compliance with their fixed election date measures, and in Manitoba, PEI and Saskatchewan the first fixed election date is in fall 2011).

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

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

Democracy Watch also called on all jurisdictions to change their fixed election date to the last Monday in October, which is the best date to ensure voter turnout.

If the Supreme Court of Canada allows the appeal and then rules in favour of 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 Supreme Court of Canada refuses the appeal or allows it and then rules against Democracy Watch's position (upholding the Federal Court of Appeal's ruling), it will rule that the measures were not specific enough to change the Canada Elections Act to restrict the Prime Minister from calling a snap election, and therefore that Prime Minister Harper broke his 2006 election promise to enact measures that fix federal election dates.

"If Democracy Watch wins, the Supreme Court of Canada 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 prohibit 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."

The fixed election date measures were added to the Canada Elections Act in May 2007 by Bill C-16.  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 at the Department of Justice are now arguing that essentially everything Minister Nicholson said about Bill C-16 in Parliament was false.

Democracy Watch's position is that the Federal Court of Appeal's ruling, which was made the same day as the May 25th court hearing, contained the following errors of fact and law:

• the error of concluding that Democracy Watch was challenging the Governor General's constitutional power to dissolve Parliament and call an 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 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 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 that the unfairness of the snap election call violates the rights of voters under section 3 of the Canadian Charter of Rights and Freedoms -- 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.
• 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, and;
  
• To see University of Ottawa Professor of Law Errol Mendes Affidavit in support of the case, click here.

"For all these reasons, and to prevent future prime ministers from call unfair snap elections, Democracy Watch is applying to the Supreme Court of Canada for leave to appeal the Federal Court of Appeal's ruling, and 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 constitutional convention 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.

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 Democracy Watch's Notice of Appeal to the Federal Court of Appeal, click here (PDF format), and;
• To see Democracy Watch's Federal Court of Appeal factum for its full legal arguments, click here (PDF format).