Categories: Andrew Coyne

An illegal election?

The idea that the Governor General would be within her rights to refuse Harper’s…

by Andrew Coyne on Friday, August 29, 2008 7:09pm - 0 Comments

The idea that the Governor General would be within her rights to refuse Harper’s request for dissolution apparently has other adherents besides crankish magazine columnists. Indeed, constitutional scholar Errol Mendes, professor of law at the University of Ottawa and editor of the National Journal of Constitutional Law, argues Harper’s demand for a snap election may well be illegal:

Many of the powers of the prime minister and the Governor General are governed not by the written Constitution, but by constitutional conventions, including who has the right to dissolve Parliament and call for elections. Constitutional convention gives the prime minister only the right to advise the Governor General to call for dissolution of Parliament and thereby trigger an election. The Governor General has an uncontested residual power to deny a prime minister’s request for dissolution.

Constitutional conventions can be both entrenched in and overridden by statute law. That is precisely what the Conservatives did when they decided to constrain the conventional power of the prime minister to seek dissolution whenever he smelled political advantage to do so.

However, the fixed election law does not constrain the residual power of the Governor General…

To be sure, Mendes concedes, the King-Byng affair

demonstrates that the use of the conventional residual power by the Governor General contrary to the advice of the prime minister has the potential to cause political controversy and create trouble for the Crown in Canada… This precedent, while not a constitutional convention, would present a serious political hurdle for a Governor General to refuse to grant the request of a prime minister for dissolution, no matter how contrived.

Still,

Hiding under the political constraints of the Governor General’s residual power is nevertheless a violation of a statute. Some aggrieved citizen may even consider seeking court action to stop this legally dubious move.

And which particular aggrieved citizen might he have in mind?

If Prime Minister Stephen Harper forces a federal election in the coming days, a law professor at the University of Ottawa may go to court to challenge the legality of the election call.

“This is not about politics, this is about the rule of law in this country,” Errol Mendes told Sun Media…

He said he was “seriously contemplating” seeking a court injunction to try to stop such a move.

Stick around. This could get interesting…

Tags: Constitution, Election Watch, errol mendes, Governor General, King-Byng

More by Andrew Coyne

T. Thwim

Or to be more accurate, the fixed election date law didn’t change with a minority.. considering that’s what they brought it in under, and considering they were quite clear when they were speaking about it that it was meant to apply to a minority.

Go ahead and read the Hansards Tony. See what they were saying. The definitely were not saying “But this will only apply during a majority government”, they were quite clear in saying that it would apply while the ability of the House of Commons to lose confidence in the leading party was preserved. If it wasn’t meant to apply to minority governments, why even talk about that hm?

I’m starting to understand Canadian Cynic’s rather acerbic tone. They amount of flat out lying that conservatives do is scary.
Raging Ranter

Doesn’t this question of whether or not the PM has the right to ask the GG to dissolve Parliament, and whether or not she has any convention backing her up should she choose to refuse to do so (she certainly has the power, that much is clear) show just how nutty our Constitution is in the first place? Seems to me it no longer works. Period. I note that recently France amended its constitution – with minimal fuss – so that it might work better. It would be nice if Canada were a mature nation; mature enough to amend its Constitution without risking a national crisis.
The Observer

Assume the GG denies Harper’s request/recommendation for dissolution. What happens next? Harper resigns and the GG has to call in Dion to become PM. Now he has to get the confidence of the house. For that he has to keep both the NDP and the BQ onside for every confidence vote. Does even delusional Dion think he can do that?

End result? An election anyway.

[This is what happened in 1926, by the way, after Byng refused King's request. The rules were different in those days, and upon taking the PM slot, Meighen had to resign his seat and run in a by-election. King slipped through a non-confidence motion and the country went to the polls after all. King won.]
Andrew

Perhaps more important about debates about the legality of the election call, is the issue of Harper straight-up lying to Canadians, especially with the preposterous idea that the law only applies to other governments, not his. Anyone who honestly buys this line is a partisan hack. After all, Harper said, in his very own words, that this law applied to his government, and prohibited the preemption of a Parliament by any means other than a failed confidence motion. Either he lied then or he’s lying now.

Worst of all, he thinks he can get away with such a blatant lie. I think that’s what’s most galling…
Jack Mitchell

I don’t really get it, I must admit. Harper’s tactics, I mean. Why not wait until the Fall, when he’ll lose a confidence vote? That way he would get to campaign as the victim AND he would get to avoid this constitutional schmozzle / tangling with his own law. Are the by-elections that important? Is the Couillard book going to be that damaging?
T. Thwim

It’s not the by-elections, and I doubt it’s Couillard’s book. There remains, however, the in-and-out court case by Elections Canada, which I expect will likely have some conservative campaign managers being sent to jail for a couple months. There’s no way he wants that to happen mid-campaign.

In addition, there’s the Cadman tapes, Harper tried to bluff the liberals into a settlement to keep them from using those tapes. Unfortunately for him, “Not-a-leader” Dion didn’t blink and it’s gone to court. If the independant expert concludes it’s legit, he has some ‘splainin’ to do about why he didn’t act to stop an offer of “financial considerations” to Cadman in exchange for a vote — normally known as bribery.

Then on top of *that* his constant “Not-a-leader” campaign seems to be hitting the point of diminishing returns, because Dion’s leadership numbers have started to climb upwards. Libs say that’ll only improve once people start to hear him speak. I’m still not sure that I buy that one,but we’ll have to see.

Finally, more details are coming about comparing the proposed Liberal Green Shift to the Conservative and NDPs environmental plan.. turns out the experts say either one is going to cost us. The difference is that the one by the Lib’s (and the Greens, to be fair, since they came out with it first) tries to help out those who will be hurt most by the increases in cost. The conservative and NDP plan leaves people fending for themselves. I find that if I actually talk to someone about the Green Shift plan, if they’re willing to listen at all, usually end up either thinking it’s not bad albeit with some reservations, or approve.

So I don’t think Harper is going because he can win big now.. heck, even he says it’ll probably be another minority. I think he’s going because if he waits, things will only get worse.
http://robertede.blogspot.com/2006_05_31_robertede_archive.html Robert Ede

I welcome the call of this election ONLY to trigger the Professor’s court case challenging it’s legality.
The resulting case will clarify who/what holds the Crown’s Executive Power (BNA Act ss. 9-16) and who is simply the leader of the largest ‘bunch’ in the lowest ‘order of gov’t’ within our One Parliament (s.17).
Gen. Lee Wright

This is just a poor column in general. I say that only because of the headline – poorly chosen, Andrew.

There’s no case in your article or the Moscow Citizen to suggest this could be illegal in any way, shape, or fashion. Illegal in this sense sounds like ‘illegal war’ in the American-communist sense. (Do we have a world government yet?)

If Stephen Harper chooses to ask the GG (no one suggested he’s doing anything other than that) and she agrees to dissolve parliament, that’s her call. If he asks and she shows some form of partisanship (gratitude for Paul extending her already-past-its-due-date career?) by way of denying his request, that’s also her call.

To suggest anything here is illegal is just irresponsible journalism.
Jack Mitchell

Robert Ede, what’s unclear about the current arrangement? My understanding was that the leader of the largest bunch in the House got to be PM and he managed the Executive on behalf of the Crown. Who disputes that?
Frank Scott

Harper’s law is clear: the Governor General shall not be advised to call an election. Since only the Prime Minister may advise the GG in this matter, the law makes it illegal for Harper to ask her to call an election, The law does not constrain the GG, but it does constrain the PM.

But is the law constitutional? Does Parliament have the right to constrain the PM’s prerogative? Does the GG have the authority to interpret constitutional law? Should she side with Parliament or the PM on this question?

The GG should refer the matter to the Supreme Court if asked. If the law turns out to be Constitutional, she should block an election and reconvene Parliament. If the law is unconstitutional, she should call the election. It is the GG’s place to follow the law and convention, not interpret or establish them.
Pingback: Injunction to Stop Illegal Election? | Vlad Glebov
7th Generation CelticCdn

And our ancestors landed on the beaches of Normandy on DDay and paid the ultimate sacrifice to…have we forgotten…

wasn’t it to liberate the European peoples, to restore their respective democractic states and free them from the oppression of the self-proclaimed “ruling elite”.

Obviously if the early election call is contrary to the law, the Canadian people would be equally within their rights to refuse to participate in same…now that would be interesting.
Pingback: Chris Tindal » Nomination meeting tonight
http://www.illegalelection.ca GP

There are certainly lots of opinions on this on both sides. There is not doubt, however, that it is against the intent and spirit of the Act. There’s a good website on this: http://www.illegalelection.ca
Neil Harpham

I would like to know who is going to represent voters like myself that were morally unable to vote by participating in an illegal act. My vote was taken from me in absolute violation of my Constitutional RIGHT TO VOTE. Democracy Watch, with Peter Rosenthal filed an action T-1500-08 in the Federal Court. The material contained in their filings are great reading in their arguement as to the legal status of the call of the election. I have asked that they pigiback my individual problem with my rights being violated for the same reason and argument. I have not had any responce from them. Also through the Canadian Human Rights Commission in Halifax I have been given the idea that they are unable to help. Who can? I am a semi-retired Taxi driver and can”t afford to take the Government to court on my own. Is their help or suggestions out there? Or; are we ALL to accept that the Prime Minister, Governor General of Canada, along with everyone else that participated in the election are above the law.
Pingback: My Blahg » KARMA’S BACK IN TOWN
Btok

Part 1

Two Party Paradyne Elitist Bilderberg Trick

The Elitists hone two candidates in their employ and train one to be a Left wing Candidate a Liberal or Democrat then take the other and hone him or her to be a Right wing candidate a Conservative or Republican! Via the elitists scientific study of mind control methods and psychology these two candidates are trained to do the right moves at the right time in order to be elected in various countries wherby they will arrange financial benefits and various controls of these countries for the financial and power gain of the Elitists!

Let’s say the elitist boss in this example is named David from the Bilderberg group! And the Left wing candidate is Obooba the Liberal or Democrat and the Right wing candidate is Sarah Conservative or Republican!
Btok

Part 2
Now because the elite are the super wealthiest on earth they have lots of Corporate Lobbying and money power and they are able to supremely promote and and create great PR and convincing extraordinary Press Kits for these two candidates which enables them to gather much credibility among the voters and are heavily promoted by David and the elitist organizations to become the Dominant candidates for the election!

Now David the Elitist boss really doesn’t care who wins between these two as both candidates have been honed to perfection to be able to produce results for all the Elitists and Bilderberg Group and David their Puppet Master!
Btok

Part 3
Now these two candidates can come out on the scene in an election competition and impress their voters!

So if Liberal – Democrat Obooba gets voted in as Prime Minister or President depending on the country, he will provide and perform nicely first and foremost for David and the Elitists! In spite of the oath he has taken to perform to the best of his ability for his country!

Should Sarah Conservative – Republican get elected as President or Prime Minister depending on the country, she will provide and perform nicely first and foremost for David and the Elitists, despite the oath she has taken to perform for her country!
Btok

Part 4

In this scenario regardless of which way the election goes – the Elitists win!

The head of the Elitists may not always be from The Bilderberg Group, they could also be from one of these affiliate organizations: Council on Foreign Relations ( CFR ), Trilateral Commission ( TC ), Federal Reserve, International Monetary Fund ( IMF ),

World Health Organization ( WHO ), United Nations

This explains the basic procedure for the Left Right Wing Paradyne Election game very basically so that it is easy to understand what is happening!
Btok

Part 5
The Illuminatti play this game of divide and conquer in most of their ploys!

Eg; man against woman, Black against White, Israel against Iran, England against Germany, Gay against Straight, Palestinian against Jewish etc. Throughout almost the last 100 years the Elitists have been manipulating these problems and wars around the world for their financial gain and power! They love to keep people divided and enemies as this all goes toward the Elitists benefit – if people won’t join together to help one another the Illuminatti Elitists will always be able to defeat the citizens of the world!
Paul Revere and Friend Btok
Btok

Part 6
Watch out during the next Canadian election , we believe the Elitists may try it here as they did in the last American election! USA ended up with a Fascist, Marxist President and Government that sympathizes with the Foreign Off-Shore Bankers! Help keep manipulations out of Canadian politics!