In 2007 Parliament adopted legislation establishing a fixed date for elections
every four years. The date established in the law for the next election
was October 19, 2009. In September 2008 the Prime Minister asked the Governor
General to dissolve Parliament for an election to be held on October 14,
2008. Some have argued that such a request was improper and even illegal.
This article looks at the legal issues surrounding the fixed election date
The opposition parties in the House of Commons were quick to point out
that, by calling the election for October 14, 2008, Prime Minister Harper
circumvented if not violated the bill he enacted to establish fixed election
dates.1 The central provision of this bill adds the following to the Canada
56.1 (1) Nothing in this section affects the powers of the Governor General,
including the power to dissolve Parliament at the Governor Generals discretion.
(2) Subject to subsection (1), each general election must be held on the
third Monday of October in the fourth calendar year following polling day
for the last general election, with the first general election after this
section comes into force being held on Monday, October 19, 2009.
In my opinion, both extreme interpretations of this provision must be ruled
out from the outset.
The first interpretation to rule out is that the new act is intended merely
to reduce the maximum length of a Parliament from five years to four and
that it does not change anything else. Since subsection 56.1 (1) preserves
the Governor Generals power to dissolve Parliament, it would therefore
leave intact the Prime Ministers power to make a recommendation to the
Governor General in this regard. This interpretation is not valid as it
would make subsection (2) meaningless by requiring the first general election
under the new system to be held on Monday, October 19, 2009.
Equally disputable is the opposite interpretation, whereby the Governor
Generals discretion serves solely to comply with the procedure for amending
the Constitution,2 thereby leaving intact just one power that the Governor
General can exercise of her own initiative. Under this interpretation,
the act would preclude any potential recommendation for dissolution by
the Prime Minister. This interpretation of the act cannot be upheld because
it would adversely affect the essence of the Canadian parliamentary system
and the democratic principle upon which the Constitution is based. Unlike
the presidential system in the United States, the government and Parliament
have the power of life and death over each other in Canada.3 To offset
a potential vote of non-confidence in the Commons, the government and the
Prime Minister must retain the right to request the dissolution of Parliament.
The federal provision regarding fixed election dates allows the Prime Minister
to call elections after a non-confidence vote in the Commons. But it does
not spell this out and allows room for other possibilities. In the case
of a majority government, the provision in question does indeed deprive
the Prime Minister of the power to choose the timing of an election call
based purely on opportunism. But is that also true for a minority government?
In that case, do the opposition parties in the House alone have the power
to decide whether or not an anticipated election will be held by refusing
to bring down the government when the circumstances are not to their liking
or by bringing it down when they are? The idea that a minority government
should have flexibility comparable to that of the opposition parties is
certainly defensible. At the end of the summer of 2008, while the House
of Commons was adjourned, Prime Minister Harper met the leaders of the
three opposition parties and then called a general election on the pretext
that they no longer had confidence in his government. The Prime Minister
did not in my opinion violate subsection 56.1 of the Canada Elections Act
in so doing, even if he was motivated by electoral or partisan considerations.
Absence of Judicial Sanction
The legality of the election call for October 14, 2008, is nevertheless
debatable and has in fact been challenged in Federal Court by the group
Democracy Watch. Even if the act has been violated, various legal principles
will lead the courts to refuse to sanction the illegality.
First of all, the exercise of the Governor Generals powers is governed
by constitutional conventions and not by strict legal principles. This
includes the power to dissolve Parliament, which is specifically maintained
in subsection 56.1 (1) of the Canada Elections Act. In this case, the
most relevant constitutional convention is that the Governor General only
dissolves Parliament at the Prime Ministers request. Since the opinions
expressed by the Supreme Court in 1981 and 1982 with regard to the repatriation
of the Constitution, it has been clear that the courts may rule on whether
or not a constitutional convention exists, but may not sanction such a
convention.4 Insofar as the resolution of the dispute depends on the constitutional
convention upheld by subsection 56.1 of the Canada Elections Act, a court
of justice may not make binding conclusions.
Regardless of constitutional conventions, the courts are likely to find
that the issue here is purely political and that it is not justiciable.
When the Auditor General of Canada did not gain the access to documents
to which she was legally entitled, the Supreme Court ruled that her sole
recourse was to complain to the House of Commons.5
The Court noted that
this was essentially a dispute between the legislative and executive branches
and pointed out that the governments refusal to provide the requested
information could have an impact of the publics opinion of the governments
performance. Similar considerations apply to the argument that Prime Minister
Harper acted illegally by calling the election: he acted in response to
a dispute between Parliament and the government, calling upon the electorate
to settle it. A court of justice could also find that the Governor General
is a more appropriate authority to uphold the law in this case. In any
event, the alleged illegality can be sanctioned in the political arena
Finally, the principles of necessity, rule of law and de facto authority
also preclude judicial sanction of this alleged illegality. The principles
in question prevailed in Manitoba, for instance, to ensure that laws that
were unconstitutional (because they were unilingual) still had effect when
time was allowed to re-enact them in both languages.6
In the present case,
a court of justice cannot cancel the election on October 14, 2008, several
months after it was held or demand that the illegally dissolved House of
Commons be reconstituted. The need to preserve the democratic system and
the rule of law means that the validity of the general election of October
14, 2008 and of subsequent actions by public authorities must be recognized.
I firmly believe that the new provision of the Canada Elections Act regarding
fixed elections dates does not prevent a minority government from asking
the Governor General to dissolve Parliament because the government must
have flexibility comparable to that of the opposition parties in the House
in this regard. Prime Minister Harpers decision and the way he proceeded
certainly constitute a precedent that could influence the interpretation
not only of the federal act but also of all existing provincial acts that
preserve the lieutenant governors power to dissolve the legislature.7
The fact remains that, regardless of interpretation, the fixed election
dates act cannot be sanctioned by the courts after the fact, after it has
been violated. However, a court of justice could issue a statement regarding
its scope. A government could even, through a reference, call upon the
Court of Appeal or the Supreme Court to rule on the interpretation of this
1. An Act to Amend the Canada Elections Act, S.C. 2007, c. 10.
2. Pursuant to paragraph 41a) of the Constitution Act, 1982, both houses
of Parliament and the legislatures of the ten provinces must be in agreement
in order to change the office of the Governor General, which includes
her power to dissolve Parliament: Attorney General of Ontario v. OPSEU,
 2 S.C.R. 2, p. 46-47.
3. Regarding the means of constraint by Parliament and the government in
the Canadian parliamentary system, see Henri Brun, Guy Tremblay and Eugénie
Brouillet, Droit constitutionnel, 5th Edition, Cowansville, Éditions Yvon
Blais, 2008, p. 607-611.
4. Re: Resolution to amend the Constitution,  1 S.C.R. 753; Re: opposition
to a resolution to amend the Constitution,  2 S.C.R. 793.
5. Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources),
 2 S.C.R. 49.
6. Re: Manitoba Language Rights,  1 S.C.R. 721.
7. Fixed election dates every four years have been set in British Columbia,
Newfoundland and Labrador, Ontario, Prince Edward Island, New Brunswick,
Saskatchewan and Manitoba.