Just after this past election call I had written a column questioning the legality and integrity of calling an election in advance of the new fixed election date, and given that there was no confidence motion in the House of Commons wondered why the Governor General didn’t offer to the opposition parties a chance to form a second minority government.
The story included a spoof conversation between the Governor General and the Prime Minister to better understand what should have happened instead of an election call and also included an imaginary scrum around Liberal Opposition Leader Stéphane Dion who said, “The Liberal Party believes it can form a coalition government in order to continue parliaments mandate to October 19, 2009. Our government will ensure that the people of Canada will not be subjected to endless court challenges questioning the legitimacy of an election which was called in a negligent manner.”
As it turns out as this column is read far and wide across the country I wasn’t alone in my belief that there was far to many questions that remain unanswered as to the circumstances by which this federal election was called and whether the Governor General and the opposition enforced the protocol, which insures our democratic process.
Now it appears that these very court challenges that were sketched in the article are beginning to emerge as the organization Democracy Watch launched the first one on October 2. The suit names the prime minister, the governor-in-council — essentially the cabinet — and Gov. Gen. Michaëlle Jean.
The challenge was heard in Ottawa and with a ruling made this past Friday by Federal Court Judge Prothonotary R. Aronovitch who settled one question concerning Democracy Watch's application challenging the legality of the recent federal election call. The ruling states that there is not enough time left before Election Day to have the application fully considered by the Federal Court.
A full consideration of Democracy Watch's application is needed, the ruling states, because "the application raises important issues." Democracy Watch's application will now proceed through Federal Court on the regular schedule, which will likely result in a court hearing in about six to eight months.
Democracy Watch is Canada's leading citizen group advocating democratic reform, government accountability and corporate responsibility, and the most successful national citizen advocacy group in Canada over the past 13 years in winning systemic changes to key laws. It is a non-profit, non-partisan organization based in Ottawa that opened its doors in October 1993 and launched its first campaign in April 1994.
Democracy Watch works with Canadian citizens and organizations in pushing Canadian governments and businesses to empower their roles as voters, citizens, taxpayers, consumers and shareholders. Its aim is to help reform Canadian government and business institutions to bring them into line with the realities of a modern, working democracy.
In this latest round of advocacy, Democracy Watch has applied 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, and therefore the dissolution of Parliament and the calling of the election was illegal.
"All of the 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 current federal election," said Duff Conacher, Coordinator of Democracy Watch.
Democracy Watch has filed the case not only to challenge the calling of the current election, but also to win a ruling that will prohibit future prime ministers from calling elections before a vote of non-confidence in the House of Commons has occurred.
The case is not without its experts, University of Toronto Professor of Political Science Lawrence LeDuc and University of Ottawa Professor of Law Errol Mendes have both supplied Affidavits in support of the case.
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 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 make 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 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.
In addition, Democracy Watch believes that, given the fixed election date measures, Prime Minister Harper's election call violates section 3 of the 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 well, the clear intent of the fixed election date measures is to make elections fair for all political parties 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 current federal election," said Conacher.
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.
Today, the case continues to be buried in the back pages of newspapers but it will emerge as one of the most embarrassing events produced by the Harper government as the question surfaces after the election, as to how legitimate our government is after having won an election based on an illegal call?
It would be wise to throw this one into the national debate from coast to coast so that all of our political leaders can explain themselves on this one.
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Don Elzer writes and comments about the future, current affairs, lifestyle and the natural world. He is a director of the Watershed Intelligence Network publishers of The Monster Guide, which can be found at www.themonsterguide.com
He can also be reached by email at: treks@uniserve.com
