Those fixed-election-date laws are full of loopholes

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This article was published 31/05/2010 (5896 days ago), so information in it may no longer be current.

Canada’s much-ballyhooed fixed-election-date legislation is so vague, say the courts, that a prime minister can drive a campaign bus right through it.

And that’s exactly what happened in 2008 when, a little more than a year after the Conservative government introduced Bill C-16 setting fixed election dates, Stephen Harper up and called an election, which his party went on to win.

Conservatives had been in power just two years at that point. But the PM argued that Conservatives needed a fresh mandate to deal with a deepening recession.

It was no coincidence that then-Liberal leader Stéphane Dion was hitting new lows in the polls and promising an unpopular carbon tax if his party formed government.

Duff Conacher, head of the federal watchdog group Democracy Watch, says that the recent Federal Court of Appeal ruling "means the Conservatives broke their 2006 election promise to pass a law that fixes federal election dates every four years."

The Conservative law, while establishing set terms, did not curtail elections naturally precipitated by votes of non-confidence.

The purpose of the law, popular with voters, was to remove any natural advantage a governing party has in determining the timing of a vote.

Governments generally call elections when conditions are ripe for them to win, disadvantaging opposition parties.

In support of Democracy Watch’s legal action against the government, veteran political scientist Peter Russell in October 2008, observed that: "Conceding to the prime minister an untrammelled power to order up an election whenever he pleases is bound to contribute to public cynicism and withdrawal from the democratic process."

Be that as it may, a Federal Court of Appeal ruled Wednesday that Harper didn’t break his government’s law when he engineered that September 2008 election.

The court ruled the government’s legislation was sufficiently vague in its wording to allow the PM to do what he did.

Democracy Watch, which initiated its court action in 2008, now plans to apply to appeal the case to the Supreme Court.

In the interim, the group is contending that fixed-date election laws, which have been passed in seven provinces — B.C., Saskatchewan, Manitoba, Ontario, New Brunswick, P.E.I. and Newfoundland — aren’t worth the paper they’re written on. In other words, taxpayers have been had.

An assortment of governments received public relations benefit from touting their fixed-election-date laws without being forced thereafter to deliver on their promises.

In the case of the Harper government, the law was part of a broader pledge by Conservatives to introduce greater accountability to government, in the aftermath of the Liberal sponsorship scandal.

You’d expect that if Conservatives really had intended to carry out their promise, they’d have taken advantage of all the lawyers employed by the federal government to word their law so that it meant something.

Democracy Watch is asserting that, as things stand, Harper may not technically have broken his fixed-election-date law but has shown himself to be "a dishonest promise breaker."

If Harper’s election law had been enforceable, Canadians would be facing the next election in the fall of 2012, as long as Conservatives weren’t brought down beforehand by a non-confidence vote in the Commons.

As things stand, most political observers — who appear to have discounted the Conservatives’ fixed-date election law — believe a vote is likely in 2011, most likely precipitated by disagreement over a government budget measure.

» Barbara Yaffe is a national affairs columnist for the Vancouver Sun.