An Illegal Election?

Weary Canadians are about to be forced into another election. And, in a mark of how many elections there have been recently, we're still fighting about the last one.

On Tuesday, Democracy Watch, an advocacy group, went to court challenging the legality of the October 2008 election. The case has received a lot of media attention (see here and here).

A little history: In 2007, Prime Minister Harper's Conservative government changed the Canada Elections Act to require an election every four years. There was a qualification though. The Act said that it didn't affect the powers of the Governor General, "including the power to dissolve Parliament at the Governor General's discretion." In September 2008 - long before the four years were up - Harper asked the Governor General to dissolve Parliament, which she did, prompting an election.

Democracy Watch is arguing that by asking the Governor General to dissolve Parliament, Harper violated his own law.

According to the Globe and Mail report on the court hearing, "[a]t issue is whether the Harper government's 2007 changes altered the constitutional 'convention' or past practice allowing prime ministers to engineer sudden elections even if they had not been defeated in the House of Commons."

But if Democracy Watch actually made this the "issue", then they're in trouble. According to the Supreme Court of Canada, even if there were a convention, it wouldn't be legally enforceable.

So what's Democracy Watch really up to? Their written materials (available here) give a better idea. They seem to think something like this: The fixed date election law created a convention that the Prime Minister would only ask for an election every four years. The convention bears on the law's interpretation. The best interpretation of the law, given the convention, is that it prohibits the Prime Minister from asking the Governor General to dissolve Parliament before four years are up.

Yet if this argument is any better, it's not better by much. The trouble is that the Act only requires one thing: for an election to be called every four years, unless the Governor General calls one earlier. By asking the Governor General to dissolve Parliament, Harper wasn't calling an election; he was asking the Governor General to do so, which the Act permits. The point might seem technical, but the divide between the Governor General and the Prime Minister is at the heart of Canada's constitutional system. No amount of "interpretation" can bridge it.