A ‘convention’ is an uncodified rule of a constitution considered binding on political actors but not enforceable by the courts. The Constitution of Canada is comprised of both written or codified rules enforced by courts, and ‘unwritten’ rules or principles necessary for constitutional government. What separates a convention from constitutional law is that the former is not judicially enforceable. Courts may recognize the existence of a ‘convention’, and even help define its nature and scope, but they do not provide remedies for the breach of conventions.[1]

While Canada’s Constitution is most often associated with its ‘written’ documents – chiefly, the Constitution Act, 1867,[2] and the Constitution Act, 1982[3] – in fact, Canada’s full constitutional framework is unintelligible without reference to a prodigious set of constitutional conventions. Consider two examples. Nowhere in Canada’s constitutional documents is it written that the government of the day must resign when it loses the confidence of the legislative assembly. Yet, this central tenet of responsible government is at the core of Canadian constitutionalism, and a political crisis would ensue were its principles ignored by political actors.[4] Similarly, while in a strictly legal sense the Governor General may refuse his or her assent to a bill duly passed by both houses of Parliament, a constitutional convention has developed whereby the withholding of assent would be unconstitutional (see reservation and disallowance).

Conventions arise when there are precedents for a particular principle or practice; when political actors consider themselves or ought to consider themselves bound to follow the principle or practice; and when there are good reasons for the existence of the principle or practice.[5] While the core meaning of a ‘convention’ may be clear, questions of application frequently arise, and political actors may heatedly dispute what precedents apply and what reasons are legitimate. While political actors, for example, are agreed on the confidence convention, what sort of measure exactly constitutes a withdrawal of confidence may be controversial.[6]

[1] Peter W Hogg & Wade Wright, Constitutional Law of Canada, 5th ed (date accessed 30 December 2021), (Toronto: Thomson Reuters Canada), ch. 1, § 1:10. Thomson Reuters ProView.

[2] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[3] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] Marc Bosc & Andre Gagnon, ed, House of Commons Procedure and Practice, 3rd ed (Ottawa: House of Commons, 2017) ch 2, <https://www.ourcommons.ca/about/procedureandpractice3rdedition/ch_02_2-e.html>

[5] Constitutional Law of Canada, supra note 1 at ch. 1, § 1:10.

[6] For further reading, see: Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991); R M Dawson, The Government of Canada, 5th ed by N Ward (Toronto: University of Toronto Press, 1970); B Reesor, The Canadian Constitution in Historical Context (Scarborough: Prentice-Hall, 1992).

During the SNC-Lavalin scandal, former Minister of Justice [MOJ] and Attorney General [AG] Jody Wilson-Raybould stated that there were attempts by the Prime Minister’s Office and other government officials to “politically interfere” with her independent discretion as AG.[1] This episode has called into question whether the positions of AG and MOJ would better serve Canada’s democracy if they were performed by two individuals.

Currently, the positions of AG and MOJ are exercised by one Cabinet minister, and he or she must perform the two distinct roles. Arguments about whether Canada should reorganize the roles into two different positions, like in the United Kingdom and New Zealand, have been ignited by claims of political interference in the SNC-Lavalin affair, but it is unclear whether the government will see fit to separate them.

Why Tension Exists: The Current Role of AG and MOJ

There is a significant difference between the roles of AG and MOJ; however, since they are performed by one individual they can be difficult to distinguish. The roles have been combined since before Confederation and have been occupied by one Cabinet minister since the founding of the Department of Justice in 1868.[2]

The Minister of Justice [MOJ] is described as “a partisan political advisor” with duties which include providing legal advice to Cabinet and overseeing Department of Justice policy.[3] The MOJ is also tasked with reporting if any bill introduced in the House of Commons is inconsistent with the Charter.[4] In contrast, the Attorney General [AG] litigates on behalf of the Crown, oversees prosecutions, provides legal advice to government departments and agencies, and drafts legislation and regulations.[5] In essence, the MOJ is a Cabinet minister and must take in to account partisan plans for policy development; the AG is intended to be an impartial law officer of the Crown.

The combined MOJ and AG roles can lead to conflict of interest concerns because they put two of Canada’s constitutional conventions at odds with one another. The MOJ is expected to adhere to the principle of Cabinet solidarity, which requires that all Cabinet ministers “maintain a public front of unanimity” on Cabinet decisions.[6] However, the AG is expected to adhere to the Shawcross Doctrine which “asserts that AGs should not be pressured or driven by partisan colleagues or considerations” in making decisions about prosecutions.[7] The Supreme Court of Canada stated that, in regard to managing prosecutions, the AG should be “fully independent from the political pressures of the government.”[8] Thus, tension can arises when one individual is expected to act in both partisan and independent manners.

Comparative Analysis: The AG in the United Kingdom and New Zealand

The combination of the MOJ and AG in one Cabinet minister is not a consistent practice in Commonwealth nations. For example, the United Kingdom [UK] and New Zealand [NZ] separate these positions.

The English AG evolved to have political responsibilities in addition to the obligation for executing the Crown’s legal duties.[9] Since 1928, the AG is excluded from a Cabinet post; however, the AG is still a Member of Parliament with the governing party and is appointed by the government. The AG can attend Cabinet meetings “by invitation” to give legal advice and to keep abreast of government business.[10] The AG’s responsibilities include:

• provide legal advice to the government,
• represent the government in court,
• independently control major prosecutions, and
• perform other legal functions as the Crown’s lawyer.[11]

These functions are distinct from ministerial responsibilities and the development of justice policy. The responsibility for overseeing justice policy rests with the Lord Chancellor and the Home Secretary, both of which are senior Cabinet positions.[12]

New Zealand also has the AG and MOJ portfolios exercised by different individuals. The AG is “the senior Law Officer of the Crown” who exercises similar responsibilities to the UK AG.[13] In contrast, the Minister of Justice has responsibilities for the creation of government policy on justice and legal issues.[14] While the NZ AG is a member of Cabinet, by convention the AG is not bound by Cabinet solidarity.[15]

The NZ AG has a similar reporting function to that of Canada’s MOJ. The NZ AG is required to report to Parliament if a legislative bill “appears to be inconsistent with the Bill of Rights.”[16] In the period of 1990-2012, the NZ AG reported 53 bills for being in violation of the Bill of Rights, including 37 government bills.[17] The AG’s reporting function has arguably led to greater transparency and dialogue about the constitutionality of bills.[18]

Independence and Interference: Arguments to Separate the Roles

Arguments for separating the AG and MOJ positions, as has been done in the UK or NZ, include:

1. Eliminate conflict of interest concerns
   • It has been suggested that the current dual role creates an inherent “clash of loyalties and a conflict of interest.”[19] This conflict comes from the tension between Cabinet solidarity and adherence to the Shawcross doctrine, which requires the AG to be independent in overseeing prosecutions. If the roles were performed by separate individuals this concern would be eliminated.
2. Limit risks of political interference
   • Former AG and MOJ Jody Wilson-Raybould has expressed the view that there were “consistent and sustained efforts” by the Prime Minister’s Office to politically intervene with prosecutorial independence during the SNC-Lavalin affair.[20] She thinks there is “merit” in separating the positions to limit future risk of political interference.[21]
3. Bolster public confidence in Canada’s justice system
   • Former Ontario AG and MOJ Michael Bryant believes the public may have lost confidence in the independence of the justice system because of political interference concerns. He argues that separating the roles of AG and MOJ would help to regain public confidence.[22]
4. Increased clarity for Cabinet ministers on how to approach the MOJ and AG
   • Former AG and MOJ Irwin Cotler argues that there is an “inherent tension” between the two roles that can lead to confusion from other Cabinet ministers. He states that it can be difficult for ministers to remember to approach the AG with a “legal hat” and not a political one.[23]
5. Fewer constitutional challenges to laws
   • It has been argued that placing the MOJ’s reporting power in an independent AG would create an improved dialogue about the Charter compliance of bills. Because of Cabinet solidarity, the Canadian MOJ has never deemed a government bill to be incompatible with the Charter; in contrast, this is a consistent practice of the separate AG in NZ.[24] This move could lead to fewer bills being challenged as unconstitutional once they become law.
6. Manageable workload
   • It has been suggested that the incredible workload of the AG and MOJ is reason to consider separating the roles.[25] Currently, the AG and MOJ is responsible for work-intensive areas such as making policy, appointing judges, providing legal advice, and overseeing the representation of the government in court. Splitting the roles could provide more attention to these areas

Much Ado About Nothing: Arguments for the Status Quo

Arguments for the current system, where one Cabinet minister performs the roles of AG and MOJ, include:

1. Corruption has appeared to be rare with the combined positions
   • Current AG and MOJ David Lametti acknowledges that “there are good arguments” to split the roles, but he also believes that there has been a long history of the dual role working in Canada. He states that it is “indicative that the system can work” because concerns of political interference have been rare.[26]
2. Separate roles may not address all concerns about political interference
   • It has been argued that any AG appointed by a government could still face pressure to act in that government’s political interest. Notably, the UK AG has still faced controversy from concerns of improper political pressure.[27]

Conclusion: A Question of Political Will

Generally, there are more arguments in favour of separating the positions of AG and MOJ than those for keeping them combined in one person. For this reason, there has been pressure on the government to consider this change.

Prime Minister Justin Trudeau stated on March 4, 2019 that separating the roles would be a “significant change” that should “require considerable reflection and analysis.”[28] The Prime Minister has appointed former AG and MOJ Anne McLellan to “[impartially] review” whether the dual role should be split; she is due to provide recommendations to the Prime Minister by June 30, 2019.[29]

Thus, it is a real possibility that the dual roles of AG and MOJ could be split into separate individuals. It remains to be seen if the political will exists to change a system that has, until recently, seen little controversy despite being in place since 1868.

[1] “Read the full text of Jody Wilson-Raybould’s statement to the House of Commons justice committee” (27 February 2019), online: National Post <nationalpost.com/news/canada/read-jody-wilson-rayboulds-full-remarks-to-the-house-of-commons-justice-committee> [Wilson-Raybould testimony]. Specifically, Wilson-Raybould argued that government officials sought to interfere in the “exercise of prosecutorial discretion… in an inappropriate effort to secure a Deferred Prosecution Agreement with SNC-Lavalin” that was previously rejected by prosecutors.

[2] Department of Justice, “History of Department of Justice” (last modified: 10 July 2016), online: Department of Justice <www.justice.gc.ca/eng/abt-apd/hist.html>.

[3] Ibid.

[4] Department of Justice Act, RSC 1985, c J-2, s 4.1(1); Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[5] Department of Justice, “Roles and Responsibilities of the Minister of Justice and Attorney General of Canada” (last modified: 28 April 2016), online: Department of Justice Canada Minister’s Transition Book <www.justice.gc.ca/eng/trans/transition/tab2.html>.

[6] Élise Hurtubise-Loranger, “Constitutional Conventions” (11 July 2006), online (pdf): Library of Parliament <https://lop.parl.ca>.

[7] James B Kelly & Matthew A Hennigar, “The Canadian Charter of Rights and the minister of justice: Weak-form review within a constitutional Charter of Rights” (2012) 10:1 Intl J Constitutional L 35 at 54 [Kelly & Hennigar].

[8] Krieger v Law Society of Alberta, 2002 SCC 65 at para 29.

[9] LJ King, “The Attorney General, Politics and the Judiciary” (2000) 29 UW Austl L Rev 155 at 156 [King].

[10] Kelly & Hennigar, supra note 7 at 45.

[11] King, supra note 9 at 157.

[12] Ibid.

[13] Department of the Prime Minister and the Cabinet, “Ministerial Profile Attorney-General” (last modified: 31 October 2017), online: <https://dpmc.govt.nz/cabinet/portfolios/attorney-general>.

[14] Department of the Prime Minister and the Cabinet, “Ministerial Profile Justice” (last modified: 12 October 2017), online: <dpmc.govt.nz/cabinet/portfolios/justice>.

[15] Kelly & Hennigar, supra note 7 at 51.

[16] New Zealand Bill of Rights, 1990 No 109, s 7.

[17] Kelly & Hennigar, supra note 7 at 65.

[18] Ibid.

[19] Adam Dodek, “The impossible position: Canada’s attorney-general cannot be our justice minister” (22 February 2019), online: The Globe & Mail <www.theglobeandmail.com/opinion/article-the-impossible-position-canadas-attorney-general-cannot-be-our/>. Notably, Dodek asks the rhetorical question: “How can the minister and attorney-general provide legal advice on their own policies or legal advice that they have a political interest in promoting?”

[20] Wilson-Raybould testimony, supra note 1.

[21] Tessa Wright, “Lametti floats separating justice minister and attorney general roles in wake of SNC-Lavalin scandal” (2 March 2019), online: National Post <https://nationalpost.com/news/canada/growing-support-for-separating-roles-of-justice-minister-and-attorney-general> [Wright].

[22] Samantha Wright Allen, “Splitting AG from justice minister not a ‘quick fix,’ experts say, but separation a welcome reform” (6 March 2019), online: The Hill Times <www.hilltimes.com/2019/03/06/splitting-ag-from-justice-minister-not-a-quick-fix-experts-say-but-separation-a-welcome-reform/191141> [Wright Allen].

[23] Ibid.

[24] Kelly & Hennigar, supra note 7 at 51.

[25] Wright Allen, supra note 22. This point was argued by Matthew Hennigar, Professor of Political Science at Brock University.

[26] Wright, supra note 21.

[27] Ibid. University of Ottawa Law Professor Elizabeth Sanderson argued that political pressures to agree with the government could remain. See also Clare Dyer, “Attorney general’s prosecution role may be curtailed” (29 October 2007), online: The Guardian <https://www.theguardian.com/uk/2007/oct/29/constitution.politics>.

[28] Ibid.

[29] Elise von Scheel, “Special adviser to Trudeau on splitting attorney general-justice minister role promises impartiality” (23 March 2019), online: Canadian Broadcasting Corporation <www.cbc.ca/news/politics/anne-mclellan-interview-attorney-general-justice-minister-1.5069105>.

The Canadian Senate has long been the object of criticism from Canadians and lawmakers alike[1]. Since its inception, politicians have sought to reform the upper chamber, and Senate reform has repeatedly appeared in the House of Commons.[2] Others have wondered why we even have a Senate, regarding it as a rather useless institution, or one that rewards political loyalty. Under the Harper government, Canadians read about the infamous Senate scandal, reaffirming the chamber’s negative stereotypes. However, under the Trudeau government, Canadians are reading about the Senate even more frequently, and for important reasons.

The Senate’s significant involvement in Bill C-45, the Cannabis Act, has brought the chamber’s role into the forefront. Following on his election promise, Prime Minister Trudeau’s government has introduced Bill C-45, which will legalize cannabis in Canada. With over forty proposed Senate amendments to the bill, C-45 is the most amended bill the Senate has dealt with in this government. Some of the amendments touched on key features of the legislation, presenting the government with unexpected opposition from the upper chamber.

For years, the Senate was criticized for being a mere ‘rubber stamp’ on legislation. Now, the Senate is being criticized for being too involved in the legislative process, and for stalling or even obstructing legislation altogether. Is the Senate acting beyond its mandate? Could the Senate’s recent actions be unconstitutional?

The Senate’s Function, Design and Constitutional Mandate

For a bill to become law in Canada, it must be passed by both the House of Commons and the Senate, regardless of where it originates. A bill must be passed by both chambers in the same form for it to receive Royal Assent and subsequently become law.[3] Upon receiving and reviewing bills, the Senate has the option of passing a bill without amendments, proposing amendments to a bill, defeating it, or choosing not to proceed with a bill altogether. If it chooses not to proceed with the bill, “it dies on the order paper without ever being actually defeated[.]”[4]

Purpose of the Senate

The Senate performs an important legislative function, even though it is often overlooked. As the chamber of ‘sober second thought,’ the Senate was designed to “provide complementary review of governments bills before they become the law of the land.”[5] The Senate’s core function has been described as “complement[ing] the work of the House of Commons through sober second thought” which reviews, analyzes and amends legislation. [6] It is also intended to serve as a counterweight to majoritarianism, providing checks and balances where needed.[7]

Interestingly, the purpose and function of the Senate is not mentioned anywhere in the Constitution Act, 1867. Despite its unwritten nature, the Fathers of Confederation had clear intentions for the chamber. George Brown, one of the founding ‘Fathers’, described the upper house as an independent body that “would be in the best position to canvass dispassionately the measures of this house [the legislative assembly] and stand up for the public interest in opposition to hasty or partisan legislation.”[8]

The Supreme Court clarified the role of the Senate in making Canadian law in the Reference re Senate Reform. In this case, the government asked the Court a number of questions about the role of the Senate, the method of appointing Senators, as well as how the Senate could legally be reformed. The case established what amending procedures in the Constitution should be used to reform or even abolish the upper chamberIt also reiterated that the appointment of senators, rather than their election, was a very deliberate choice by the Fathers of Confederation which serves to “prevent Senators from overstepping their role as a complementary legislative body[.]”[9]

While it is crucial that the Senate be more than a ‘rubber stamp’ for legislation it is widely understood that it is also not its job to arbitrarily reject legislation either. Senators must fulfil their legislative duty of analysing and amending legislation, “with the recognition that the Senate does not have a democratic mandate to override the executive and the duly elected House of Commons.”[10] The Senate does have the power to reject legislation, however this power is sparingly invoked. Since the Second World War, fewer than five bills have been rejected by the Senate. [11]

Senate Process for Approval of Bills

Bills that reach the Senate are read and voted on three times before being sent back to the House of Commons for final approval. Before the third reading, the bill also goes to a committee, where it is studied in detail. The committee can call on experts and those who may be more directly affected by the bill to provide input on the proposed legislation. It can suggest amendments to the bill before sending it back to the Senate, which can make further amendments before the final vote. If the bill passes this vote, it gets sent back to the House of Commons. The House may accept or reject the amendments made by the Senate. The bill then goes back to the Senate for approval.

The Senate’s Mandatory Deference to House

The Senate is one of the three branches of Parliament, the other two being the House of Commons and the Executive. Under the Canadian convention of ‘responsible government,’ the executive branch and the Senate are responsible to the House of Commons, which is in turn responsible to the Canadian people. The House governs on the people’s behalf by introducing and passing legislation.

The Senate convention about not overriding the House is particularly important with bills that are part of an elected party’s campaign. When presenting such bills the government can be seen as legislating on Canadians’ behalf (as this is what the government of the day was elected on). As such, the convention is that the Senate should not stand in the way of the people’s chamber. After all, the Senate is widely regarded as a complementary chamber, not a combative or competitive one.[12]

The idea of the Senate supporting legislation that was born out of a campaign promise forms a Westminster convention.[13] This convention holds that “senators do not defeat Bills implementing promises made in campaigns won by the government party.”[14] The Senate should not defeat bills “or insist on amendments that would have the effect of gutting pledges made during an election campaign.”[15] Senators have recognized the importance of maintaining a bill’s ‘core.’ In 2014, Senator Joan Fraser reiterated that if the government has a mandate from the people to proceed with a measure, we may amend its technicalities, but we will not oppose it root and branch, however wrong we may think it is[.]”[16] In addition, Senator Jack Austin, former leader of the Government in the Senate, reiterated the importance of abiding by the wishes of the Commons. “Senators are keenly aware that, as a parliamentary institution which studies legislation originating in a house of elected representatives, senators must treat with respect the wishes of the government of the day as embodied in the other place.”[17]

Trudeau’s Reformed Senate: Legislative and Constitutional Implications

Senate Reform has been on the agenda of many Canadian governments, including the current and previous governments. Both the Harper and Trudeau governments vowed to make changes to the Senate, however, as the Supreme Court of Canada (SCC) confirmed in the Reference re Senate Reform case, many of Harper’s proposed reforms required constitutional amendments and were therefore abandoned. The Trudeau government has succeeded in implementing a modest reform to the Senate, requiring no constitutional amendments. This came in the form of modifying the appointment process.

Previously, the Governor General would appoint a senator to the chamber, on advice of the Prime Minister. These senators took on the party of the sitting prime minister and subsequently voted with that party. Under the Trudeau government the process changed. An Independent Advisory Board reviews applications of interested senators, and provides its recommendations to the prime minister. The prime minister then makes his/her selections from these recommendations. In addition, appointments are no longer made on a partisan basis, as Prime Minister Trudeau has vowed to have an Independent Senate. New senators are brought on as an independent meaning they do not sit in any formal party caucus (like the Conservative senators, for example) and they are not considered loyal to any of the federal political parties. Taking on the name of the Independent Senators Group (ISG), these senators are not obligated to vote along any party lines.[18]

Following this model, the prime minister may appoint senators who are sympathetic to or even members of their political party. Questions arise as to whether that the upper chamber can really be independent, as voting along partisan lines continues. For example, Conservative Party Leader Andrew Scheer was accused of encouraging the Conservative senators to do whatever it takes to sabotage the Cannabis Act.[19] In addition, some have accused Independent Senators of simply supporting the government on all its legislation.[20] However, senators’ votes on legislations, regardless of their party affiliation, do not always adequately represent the dialogue and deliberations that take place in reviewing legislations pending before the Senate.

Before Trudeau’s Senate reform, the Senate appeared to be less engaged in the amendment process. Across numerous Canadian governments, the average percentage of bills that the Senate amended was around 7%.[21] In the last two years of the Harper government, the Senate amended only one of sixty-one bills it received from the House. The reformed Senate has been far more active in its legislative amendments, leading some politicians to argue that the chamber is over involved and sabotaging the legislative process.[22] Of the forty-four bills it has received since the Trudeau reform, the Senate has “successfully” amended ten, and the number of amendments made to these bills is higher than ever. [23]

Looking beyond the antics of some senators and the final vote count on bills, the amendments being made to legislation in the Senate tell an important story.

The Changing Role of the Senate: Bill C-45

Recently, the Senate was called upon to consider Bill C-45, the Cannabis Act. This bill, introduced in May 2017, would make cannabis legal for consumption and even allow for limited home growth. The bill was also an election promise made in October 2015. After all three readings at the committee stage, the Senate sent back Bill C-45 to the House with over forty amendments – an astonishing number.[24]Although most of the amendments were regarded as minor, and quickly accepted by the House, the House rejected a dozen significant amendments. One controversial amendment would have allowed the provinces to prohibit the home cultivation of cannabis. The subsequent Senate vote on keeping this amendment was very narrow: 45 to 35 senators decided against it.[25] It is worth remembering that this is only one of a dozen crucial amendments that the Senate made to the bill, all of which were rejected by the House. In addition, the passing of C-45 before the parliamentary recess was not a certainty. Some senators wanted to insist on keeping the amendments that were rejected by the House, and others wanted to stall the bill altogether.

Although many notable amendments were not accepted by the House of Commons, the Senate’s work on C-45 was crucial. For example, upon Senate criticism about the lack of Indigenous consultation on the bill, the Minister of Indigenous Affairs promised to establish a dialogue with Indigenous communities on cannabis. [26] Having more agency since the reform, the Senate has raised more concerns about legislation, to which the House of Commons has answered.

The number and nature of the amendments made to the Cannabis Act indicate a more active and empowered Senate. This has important implications in both the political and legal context and presents the need for the chamber to recall what their role is and the importance of abiding by constitutional conventions that mandate its need for deference to the House. Convention suggests that the House is the superior chamber, and it is the Senate’s unwritten mandate to ultimately defer to the Commons. Further, in the Reference re Senate Reform, the Court felt that the lack of a textual procedure or resolution for deadlock between the two houses indicates that the Fathers of Confederation felt that the will of the people, manifested in the House of Commons, takes precedence over the will of the Senate.[27]

The Senate is not a fully independent chamber yet, as some senators continue to sit in party caucuses. However, the commitment to independence made by Prime Minister Trudeau has given more senators the ability to focus on crafting better legislation, rather than engaging in partisan antics in the upper chamber. Ultimately, the Senate should complement or enhance the work of the House, rather than impede it.

Conclusion

Although the Senate conceded on the Cannabis Act and voted with the government, the passing of C-45 reminds us that the new, Independent Senate is not taking its job lightly. The upper chamber is crucial to ensuring that the bills being passed are sound and free of constitutional loopholes. It appears to be taking its legislative duties more seriously since Trudeau’s reform. However, the Senate should not forget where its mandate comes from, nor get carried away with its powers.

Recalling how one of our Fathers of Confederation described the upper chamber, the Senate should be “calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people.”[28] It is important as the Senate moves into this new phase of independence and increased agency that it maintains its commitment to quality legislation, as well serving the government of the day, and in turn the Canadian people.

[1] Jason Fekete, “How to solve a problem like the Senate” 19 June 2015, online <https://ottawacitizen.com/news/politics/how-to-solve-a-problem-like-the-senate >

[2] Reference re Senate Reform, 2014 SCC 32 [2014] at para 17, 1 SCR 704 [Senate Reform Reference]

[3] Canada, The Senate, How a Bill Becomes Law, 14 June 2017, online <https://sencanada.ca/media/345985/com_7panel_howabill-web_2017-06-14_e_final.pdf> [How a Bill Becomes a Law]

[4] Paul G. Thomas, “Comparing the Lawmaking Roles of the Senate and the House of Commons” in Serge Joyal, Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003) at 172-173.

[5] Senator Peter Harder, “Complementarity: The Constitutional Role of the Senate of Canada”  12 April 2018 at 2, online <https://cdn.senate-gro.ca/wp-content/uploads/2018/04/Complementarity-The-Senates-Constitutional-Role-2018-04-12-Final_E.pdf > [Complementarity: the Constitutional Role of the Senate of Canada].

[6] Ibid at 4, Peter Harder, “On cannabis Bill Senate must defer to Canadians’ democratic will” Policy Options April 2018, online <http://policyoptions.irpp.org/magazines/april-2018/cannabis-bill-senate-must-defer-canadians-democratic-will/>

[7] Harder, “Complementarity: The Constitutional Role of the Senate of Canada” supra note 3 at 2.

[8] Janet Ajzenstat, “Bicameralism and Canada’s Founders: The Origins of the Canadian Senate” in Serge Joyal, Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003)  at 5.

[9] Senate Reform Reference supra note 2 at 59.

[10] Chris Montgomery, “Senators should be careful about how the dissent,” Policy Options March 2018, online <http://policyoptions.irpp.org/magazines/march-2018/senators-careful-dissent/>

[11] Harder, “Complementarity: The Constitutional Role of the Senate of Canada” supra note 3 at 37.

[12] Paul G. Thomas, “Comparing the Lawmaking Roles of the Senate and the House of Commons” in Serge Joyal, Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003) at 189.

[13] Harder, “Complementarity: The Constitutional Role of the Senate of Canada” supra note 3 at 4.

[14] Harder, “On cannabis Bill Senate must defer to Canadians’ democratic will” supra note 4.

[15] Ibid.

[16] Debates of the Senate, 41^st Parl, 2^nd Sess, Vol 149 Issue 131 (4 February 2014) at 1700 (Speaker Noël A Kinsella)

<https://sencanada.ca/en/content/sen/chamber/412/debates/031db_2014-02-04-e#34 >  [Debates of the Senate 2014]

[17] Debates of the Senate, 37^th Parl, 3^rd Session, Vol 141 Issue 11 (18 Feburary 2004) at 17  (Speaker Dan Hays) < https://sencanada.ca/en/content/sen/chamber/373/debates/011db_2004-02-18-e>

[18] Senator Mary Jane McCallum, “Modernizing the Senate: the benefit of partisanship taking a backseat,” Hill Times 11 June 2018, online <https://www.hilltimes.com/2018/06/11/modernizing-senate-benefit-partisanship-taking-back-seat/146506>

[19] Kyle Duggan, “Trudeau accuses Sheer of playing Senate games to try to slow down pot bill,” iPolitics13 June 2018, online <https://ipolitics.ca/2018/06/13/trudeau-accuses-scheer-of-playing-senate-games-to-try-to-slow-down-pot-bill/>  [Trudeau accuses Sheer of playing Senate games to try to slow down pot bill]

[20] Rachel Aiello, “Trudeau says Senate reform ‘on the right track,’ blames Conservatives senators for delays” Hill Times 27 June 2017, online <https://www.hilltimes.com/2017/06/27/trudeau-says-senate-reform-right-track-blames-conservative-senators/112040>

[21] C.E.S. Franks, “The Canadian Senate in Modern Times” in Serge Joyal, Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003) at 172 [The Canadian Senate in Modern Times].

[22] Duggan, “Trudeau accuses Scheer of playing Senate games to try to slow down pot bill,” supra note 17.

[23] Senator Grant Mitchell, “Key Senate Changes to the Transportation Bill Possible Under new Independent Model” Senate of Canada 13 June 2018, online <https://sencanada.ca/en/sencaplus/opinion/key-senate-changes-to-transportation-bill-possible-under-new-independent-model-senator-mitchell/>

[24] Kyle Duggan, “Cannabis bill sails through crucial Senate third reading vote” iPolitics 07 June 2018, online <https://ipolitics.ca/2018/06/07/cannabis-bill-clears-crucial-senate-third-reading-vote/>

[25] Kyle Duggan, “Homegrow battle left independent wondering if Senate position on post taken seriously” iPolitics 20 June 2018, online https://ipolitics.ca/2018/06/20/homegrow-battle-left-independent-wondering-if-senate-position-on-pot-taken-seriously/

[26] John Paul Tasker, “Will the Senate pass the cannabis bill tonight? No one knows for sure” CBC 07 June 2018 online <http://www.cbc.ca/news/politics/senate-vote-legal-cannabis-bill-third-reading-1.4694512 >

[27] Senate Reform Reference supra note 10 at 59.

[28] Confederation Debates, 1865 Debates, February 6, 1865, quoted in Reference re Senate Reform,supra note 7 at 58.

On September 8, 2009 the legality of the 2008 federal election will be debated in the Federal Court, one year and one day after Stephen Harper advised the Governor General to call an election. Duff Conacher and Democracy Watch, a “citizens advocacy” group, contend that the Prime Minister broke not only his own fixed-date election law (section 56.1 of the Canada Elections Act), but also the Canadian Charter of Rights and Freedoms.[1]

The background to this case was outlined in an earlier article. In brief, Canadian law has left the decision to dissolve Parliament – that is, to call a general election – in the hands of the Governor General. In all but very rare circumstances, the Governor General is expected to follow the advice of a prime minister to dissolve Parliament. However, in 2006 Parliament passed Bill C-16, which added section 56.1 to the Canada Elections Act. This new section provided for elections at four-year intervals, beginning in October 2009, but also explicitly preserved the “power to dissolve Parliament at the Governor General’s discretion.”[2]

Under the new provision, it was generally understood that when a government lost a confidence vote in the House of Commons, the Governor General would still follow advice and grant dissolution. However, it was a surprise to some, including Conacher, to learn in September 2008 that without any vote of confidence, the Prime Minister still could advise dissolution and the Governor General would grant it. Questions immediately arose about the legality and the propriety of Prime Minister Harper’s advice on September 7, 2008. Conacher has pursued those questions in the Federal Court since last fall.

Mr. Conacher and Democracy Watch filed their written arguments with the Federal Court on April 9, 2009. The Government of Canada filed its response on May 11. The two sides offer sharply differing interpretations of election law and constitutional theory.

This article highlights the key points of disagreement between Conacher, the applicant, and the government as respondent. All of these disputes are now before the court. The court will have to consider the issues and decide at least some of them. Of course, there may be an appeal to a higher court. The outcome could prove to be an important milestone in Canadian constitutional doctrine.

DOES THE FEDERAL COURT HAVE JURISDICTION TO DECIDE THE CASE?

Duff Conacher and Democracy Watch are asking the Federal Court for:

(1) a declaration that “the holding of the election of October 14, 2008 contravened section 56.1 of theCanada Elections Act”;

(2) a declaration that the election timing “infringed the rights of all citizens of Canada to participate in fair elections pursuant to section 3” of the Charter; and

(3) a declaration that a constitutional convention prohibits an early election (according to the section 56.1 timetable) “unless there has been a vote of non-confidence by the House of Commons.”[3]

The Government of Canada responds to these arguments on their merits, and also argues that the Federal Court does not have jurisdiction to grant any of the remedies Conacher is seeking. The arguments about jurisdiction concern the Federal Court in particular and Canadian courts in general. The next two sections of this article outline arguments over the court’s ability to consider the case. Subsequent sections describe the issues the court will have to consider if it concludes that it has jurisdiction to decide them.

The Federal Courts Act and Prerogative Powers

The jurisdiction of the Federal Court is defined by statute. According to the Government of Canada, the Federal Court may only grant a declaration, as Conacher requests, if the Prime Minister’s advice to the Governor General was a “decision” under section 18.1 of the Federal Courts Act.[4] (Section 18.1 refers to “decision, order, act or proceeding.”[5])

The government’s interpretation of the Act is that advice (or a recommendation) is not a “decision.” Nor was Prime Minister Harper’s advice the exercise of a power under a federal statute, as section 2(1) of the Act requires. The government says instead that “[t]he decision is that of the Governor General,” and it was made under the royal prerogative rather than any statute.[6]

The royal prerogative, according to the government’s arguments, is beyond the Federal Court’s jurisdiction under statute.[7] It may indeed be outside the jurisdiction of any court: the government cites the 2000 Ontario Court of Appeal decision in Black v. Chrétien, where the royal prerogative to grant honours was found to be beyond judicial review.[8] (In that case, the court agreed with British precedent that also mentioned “the dissolution of Parliament” as a prerogative power that was not “susceptible to judicial review.”[9])

Justiciability

The Government of Canada makes a more fundamental argument about the court’s lack of jurisdiction to consider the case. It argues that the case revolves around “political considerations” that are not justiciable. Specifically, the government contends that the court must be sensitive to the separation of functions in the constitutional structure, and be careful to not “intrude inappropriately into the spheres reserved to the other branches.”[10]

An issue is not justiciable if the subject matter is not suitable for determination by the courts. If a court agrees that an issue before it is not justiciable, it must decline to decide the issue, leaving it for political resolution.[11]

The written arguments of the applicants, Conacher and Democracy Watch, did not anticipate the government’s arguments about jurisdiction. Conacher will have an opportunity in Federal Court to respond to the government’s position that their application should not be reviewed. If the court does not accept the argument that the entire case is beyond its jurisdiction, it will have to consider Conacher’s three arguments for a declaration about the 2008 election. These arguments will lead the court into an analysis of fundamental constitutional questions.

A NEW CONSTITUTIONAL CONVENTION?

Mr. Conacher and Democracy Watch ask the Federal Court to:

…declare that a constitutional convention has been established that prohibits a Prime Minister’s advising the Governor General to dissolve Parliament before the term mandated by section 56.1 of the Canada Elections Act unless there has been a vote of non-confidence by the House of Commons.[12]

The Government of Canada argues that there is no such constitutional convention, that existing conventions point to the opposite conclusion, and that in any event conventions are “political” and unenforceable by a court.[13]

Both parties refer to the same criteria for a constitutional convention, adopted by the Supreme Court of Canada:

We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.[14]

Although they argue from the same authority, Conacher and the government present starkly different explanations of how a convention may arise and be recognised by the courts.

Convention by Agreement?

Mr. Conacher and Democracy Watch argue that a new constitutional convention can be established quickly, as long as there is “explicit agreement of the relevant actors.”[15] They claim that this explicit agreement is clear from the parliamentary debate leading up to the enactment of the fixed election provision in Bill C-16:

[T]his legislation changed the constitutional convention that in the past permitted a Prime Minister to call a snap election without having suffered defeat in the House of Commons. The discussion and agreement of the politicians on how [Bill] C-16 is to apply is what established the new constitutional convention.[16]

In the records of parliamentary debate, Conacher finds agreement among federal party leaders, who, he says, are the “relevant actors” in establishing this constitutional convention, and who “did not dissent” from the government’s account of its “constitutional implications.” [17]  Conacher’s written arguments provide quotes from the 2006 parliamentary debates on the fixed election provision to illustrate agreement on its purpose and effect.[18]

The Government of Canada does not dispute what parliamentarians intended to accomplish, or why they thought a change was a good idea. Instead, it responds that the “relevant political actors” in respect of the alleged convention are not party leaders or participants in parliamentary debate, but the Prime Minister and the Governor General, in their meeting on September 7, 2008.[19] Neither of them, the government points out, acted as though a new convention was “obligatory or binding upon them.”[20]

It would be necessary … for there to be statements by one or more Prime Ministers supporting the existence of this alleged new restriction.... The fact that the Governor General was prepared to follow the advice indicates that neither the Prime Minister nor the Governor General believe that there was any convention requiring the government to be defeated in the House before dissolution could be sought or granted.[21]

Besides, according to the Government, a loss of confidence in the government on the part of the House of Commons is “a political question to be determined initially by the Prime Minister.”[22] According to this view, Harper was entitled to conclude that his government had lost the confidence of the House without waiting for the formality of a non-confidence vote.

Precedents for a Convention?

In their factum, Conacher and Democracy Watch rely on authority that: “A single precedent with a good reason may be enough to establish the rule.”[23] Citing the “explicit agreement” of political actors on the reason for Bill C-16, they say the new constitutional convention, as of the enactment of the fixed election provision, is that a prime minister can advise the Governor General to dissolve Parliament only after a vote of non-confidence in the House of Commons.[24]

The Government of Canada, referring to the Governor General’s acceptance of the Prime Minister’s request for dissolution in 2008, replies that the sole precedent is cold comfort to Conacher:

There are no precedents to support nor evidence to satisfy the requirements to demonstrate the existence of an alleged new convention. In fact, the only precedent is to the contrary, since the Prime Minister sought and obtained dissolution of Parliament on September 7, 2008 without having lost a vote of non-confidence in the House of Commons.[25]

The government concludes that evidence of a new convention would need to be in the form of “statements by one or more Prime Ministers supporting the existence of the alleged new restriction” on prime ministerial discretion.[26]

Mr. Conacher argues that the new precedent for federal elections is reinforced by precedents in provinces with fixed-date election laws.

The first elections in both British Columbia and Ontario were held on the dates mandated by the Provincial Elections Acts. The examples of British Columbia and Ontario provide precedents that established the convention that restricting the ability of a leader of a parliamentary government to call elections can be accompanied by passing fixed election date legislation with the understanding that elections can be held on days other than those specified in the legislation only after there has been a vote of non-confidence.[27]

The Government of Canada suggests that Conacher’s own witness, Peter Russell, took a contrary view when he said that the convention immediately prior to the enactment of section 56.1 “allowed the Prime Minister to advise the Governor General to dissolve Parliament without a vote of non-confidence.”[28] (This response by the government may misconstrue Conacher’s argument: there does not seem to be any allegation that provincial practices created a new federal convention on their own, only that they bolster a new convention established by Parliament in 2006.) The government also points out that the fixed-date election laws in B.C. and Ontario explicitly maintain the power of the Lieutenant Governor to dissolve the legislature, much as section 56.1 does with the power of the Governor General to dissolve Parliament.[29]

These questions – who must agree and what is a precedent – go to the heart of the “unwritten constitution” which governs much of the work of Parliament. If the court decides to consider them – over the objections of the government, which insists they are non-justiciable and outside its jurisdiction – it will be venturing into relatively uncharted territory.

Enforceability of a Convention?

Mr. Conacher and Democracy Watch ask the Federal Court for three declarations, as described above. Two of them – discussed below – would declare what the Elections Act and the written Constitution mean. They also ask for a declaration of a constitutional convention – specifically, the alleged new convention that a vote of confidence must precede a request for dissolution and a general election.

The Government of Canada argues that no such declaration is available to the applicants:

The realm of constitutional convention is a political one that is not enforceable by the Courts. Sanction for any alleged violation of a constitutional convention lies in the political, not the legal, domain, and the Courts have recognized that legal sanction in this area is not justiciable.[30]

The government submits that whatever the applicable constitutional convention is, no convention isenforceable by the courts.

Constitutional conventions are non-legal rules or norms that prescribe limits on the manner in which legal powers of public office holders are to be exercised. Conventions are non-legal in the sense that they are not enforced by the courts and there is no legal sanction for their breach.[31]

Peter Hogg, a constitutional scholar cited by the government, calls conventions “rules of the constitution that are not enforced by the law courts ... [a]lthough … the existence of a convention has occasionally been recognized by the courts.”[32] Peter Russell apparently conceded this point under cross-examination, stating that if a convention is violated “the court does not give a legal remedy or a legal penalty.”[33]

In the Patriation Reference,[34] the Supreme Court of Canada recognized a long-standing constitutional convention. However, the Court “held that there was no legal obligation” to abide by the convention; they articulated the convention, but did not use the power of the Court to require anyone to follow it.[35]Specifically, the Court’s statement about a constitutional convention did not come in the form of a declaration. Here, the dispute between Conacher and the government appears to centre on the question of whether adeclaration amounts to enforcement, or a remedy.

Mr. Conacher and Democracy Watch appear to recognise that they are arguing a difficult point in asking for a declaration of a convention. They return to the point that Parliament legislated the fixed election date: “Constitutional conventions that have been incorporated into legislation are enforceable by the courts as ordinary statutes, and can be challenged as being inconsistent with the Canadian Charter of Rights and Freedoms.”[36]

They cite Osborne v. Canada (Treasury Board), where the Supreme Court determined that a provision of thePublic Service Employment Act, which legislated a long-standing convention against public servants engaging in work for political parties, could be subject to Charter scrutiny.[37] The Court found:

[W]hile conventions form part of the Constitution of this country in the broader political sense, i.e., the democratic principles underlying our political system and the elements which constitute the relationships between the various levels and organs of government, they are not enforceable in a court of law unless they are incorporated into legislation.[38]

However, Conacher is asking the court to recognize a new constitutional convention, which allegedly emerged from debate on the new section 56.1 of the Elections Act. Apparently, if the new convention pre-dated the enactment of the new section, it only dated back to some point during debate on that section. The government insists that there has been “no enactment of a constitutional convention,” so there “is no legal basis ... on which the alleged new constitutional convention can be enforced.”[39]

CHARTER, SECTION 3

Duff Conacher and Democracy Watch ask for a declaration that the election of October 14, 2008 violated section 3 of the Charter. They say that this declaration would require future prime ministers to abide by the fixed-date election provision. They argue that this declaration is “essential for the future of democracy in Canada.”[40] The Government of Canada, on the other hand, warns the court that a declaration under the Charter “would mean that every federal and provincial election since April 17, 1982 [when the Charter came into force] has infringed the section 3 rights of the electorate.”[41]

Section 3 of the Canadian Charter of Rights and Freedoms states:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.[42]

The courts have considered the purpose of this section, and applied it to various electoral rules and practices. Conacher quotes the Supreme Court’s articulation of “electoral fairness” in the 2003 case of Figueroa v. Canada (Attorney General):

The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens.... Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions.... It is also necessary that the differential treatment have an adverse impact upon the applicant’s right to play a meaningful role in the electoral process.[43]

The next year, in Harper v. Canada (Attorney General), the Supreme Court referred to the Canadian electoral system as an “egalitarian model,” under which “Parliament must balance the rights and privileges of the participants in the electoral process: candidates, political parties, third parties and voters.”[44]

Mr. Conacher and the Government of Canada seem to be in general agreement about the principles that govern the application of the Charter to elections. The government says that under section 3 of the Charter, “A fair election is one that provides voters with the opportunity to become ‘reasonably informed of all possible choices’ so that they can meaningfully participate in the electoral debate and cast a reasonably informed vote.”[45]

However, Conacher and the government part company on the application of the Charter to Prime Minister Harper’s advice to the Governor General on September 7, 2008. The government also questions Conacher’s evidence and his legal status to bring a claim under the Charter.

The Fairness of Snap Elections

Mr. Conacher and Democracy Watch contend that a prime minister’s ability to call a “snap election” grants the governing party “a distinct advantage over opposition parties,” and that eliminating this “structural advantage” in the name of electoral fairness is “a key reason why most parliamentary democracies have established fixed dates for elections.”[46]

They say that this “distinct advantage” violates Canadians’ right to participate meaningfully in a fair election, as protected by section 3 of the Charter:

It is submitted that allowing the Prime Minister unfettered discretion as to when to call an election differentiates between the political parties in a way that does have an adverse impact on the ability of all citizens who support political parties other than that of the Prime Minister to play a meaningful role in the electoral process.[47]

Referring to the 2004 Harper precedent, Conacher argues that the fixed-election legislation achieved a balance of “the rights and privileges of the participants in the electoral process.”[48] Accordingly, he contends that it was “particularly unfair for a Prime Minister to call a snap election after reinforcing a promise not to do so by introducing legislation that was said to ensure that the promise would be kept.”[49]

The Government of Canada offers historical evidence to dispute that a prime minister’s power to request dissolution confers a built-in electoral advantage on the governing party.[50] It adds that media reports and statements from politicians in the summer of 2008 made it “clear that there was going to be an election called for the Fall.”[51] In any case, the government states that the minimum 36-day election period eliminates any advantage; it observes that the applicants are not challenging the election period as too short to “reasonably inform the electorate.”[52]

In particular, the government argues that there is no evidence that Conacher’s Charter rights as a voter were infringed by the early election call. To Democracy Watch’s claim that its rights were infringed, the government replies that “there is no evidence that it could not perform any of its normal functions during the election period.”[53] The Government of Canada concludes that the dissolution request was “not in any way constitutionally unfair”:

The Applicants have not demonstrated that they did not have an opportunity to be reasonably informed of the parties and the candidates during the 37 day period of the election nor have they shown that they were denied a right to play a meaningful role in the electoral process.[54]

Do Conacher and Democracy Watch Have Standing?

The Government of Canada questions whether an advocacy organization can claim democratic rights: “Democracy Watch does not have standing to bring a section 3 claim as it is not a citizen capable of exercising the right to vote, and there is no evidence from the individual Applicant, Duff Conacher, to support the allegation of a breach.”[55]

The government notes that the “general rule is that the provisions of the Charter may only be invoked by those who enjoy its protection.”[56] Democracy Watch should not be granted standing to bring a section 3 claim because “a corporation … does not possess the rights protected by section 3.”[57] They claim it does not represent any community’s voting interest and “cannot claim violation of a Charter right of third parties.”[58]

The government also submits that this is “not an appropriate case” for Democracy Watch to be granted public interest standing before the court.[59] It sets out the test for public interest standing:

A court may exercise its discretion to grant public interest standing where the claimant establishes: (1) that the action raises a serious legal question; (2) that the plaintiff has a genuine interest in the resolution of the question; and (3) that there is no other reasonable and effective manner in which the question may be brought to the court.[60]

The federal government argues there is “no serious issue to be tried” because Conacher, the only applicant with a right to vote, does not raise any evidence to show his right was infringed. [61]  Even if the first two requirements were met, the government claims that Democracy Watch cannot meet the third requirement: “There are any number of other litigants, such as opposition parties and candidates who would have been affected in a direct way by the dissolution of Parliament and calling of an election who would be better suited to bring a [section 3 Charter] challenge.”[62]

Does the Charter Apply to the Governor General?

The Government of Canada takes the position that a declaration limiting prime ministers’ ability to advise the Governor General would, in substance, be a limitation of the Governor General’s constitutional prerogatives. It applies this argument to the Charter issue: “The Governor General’s power to dissolve Parliament is a core constitutional power that is immune from Charter review on the basis that one part of the Constitution cannot abrogate another.” [63] The government claims that if the court were to accept the applicants’ arguments, the Governor General would be forced to “wait until some Charter appropriate time” to dissolve Parliament and call an election.[64] According to the government, under accepted constitutional doctrine the Charter does not give a court the power to “interfere with the relationship between the Governor General and the Prime Minister.”[65]

INTERPRETATION OF THE ELECTIONS ACT

In 2006, Bill C-16 added a new section 56.1 to the Canada Elections Act:

(1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.

(2) Subject to subsection (1), each general election must be held on the third Monday in 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.[66]

Mr. Conacher and Democracy Watch argue that Prime Minister Harper recommended the 2008 federal election in clear defiance of section 56.1(2). Although the language of section 56.1(1) preserves the Governor General’s power to dissolve Parliament, they say that it does not leave intact a prime minister’s power toadvise dissolution. The Government of Canada responds that section 56.1 places no legal limit on a prime minister’s ability to advise the Governor General, and that any such limit would require a constitutional amendment.

Statutory Interpretation and the Interpretation Act

Mr. Conacher and Democracy Watch submit that the proper interpretation of section 56.1 prohibits a prime minister from “requesting early dissolution of Parliament unless there was a vote of non-confidence.”[67]They cite the Supreme Court of Canada, which in 1998 endorsed the following approach to statutory interpretation: “[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[68]

Conacher also points to section 12 of the Interpretation Act, which applies to all federal statutes: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”[69]

The government responds that section 56.1 “does not explicitly or implicitly impose any legal restriction on the Prime Minister’s ability to advise the Governor General” to dissolve Parliament and call an election.[70] In fact, the legislation explicitly states that Governor General’s powers are unaffected, “including the power to dissolve Parliament at the Governor General’s discretion.”[71]

Anticipating the government’s argument, Conacher’s written arguments insist that Parliament’s “sole object” in enacting section 56.1 was to prohibit prime ministers from calling “snap elections”:

If Prime Minister Harper’s request for dissolution is not declared to be illegal, section 56.1 of the Canada Elections Act will be rendered absurd and meaningless, as will the corresponding fixed-election date sections of the election acts of the provinces that have enacted such legislation.[72]

In a 2005 case cited by Conacher, the Supreme Court rejected a proposed interpretation of a section of theImmigration and Refugee Protection Act which the Court deemed would render it “absurd, illogical or redundant.”[73]

The Government of Canada claims in response that the purpose of section 56.1 is not to prohibit “snap elections” but “to create a ‘statutory expectation’ of a certain date for election, without making it legally enforceable.”[74] The government’s written arguments do not explain what a “statutory expectation” is, or give any other examples of unenforceable statutory expectations.

The Constitution as a Guide to Statutory Interpretation

As described above, Conacher and Democracy Watch ask the Federal Court to recognize a new constitutional convention which would prohibit a prime minister from advising the Governor General to dissolve Parliamentunless there had been a vote of non-confidence in the House of Commons. They also ask the court to use this new convention to interpret section 56.1.[75] In other words, if the constitutional convention itself is not enforceable, it may nonetheless be used to guide the court in interpreting section 56.1 as applying to a prime minister’s advice on dissolving Parliament.

Conacher also argues that “the Charter value of fairness in elections implies that section 56.1 of the Canada Elections Act should be interpreted to preclude snap elections.”[76] In this context, Conacher and Democracy Watch cite a 2002 Supreme Court decision: “[T]o the extent this Court has recognized a ‘Charter values’ interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.”[77]

The Government of Canada responds that there is no ambiguity in section 56.1, so there is no basis for consulting other sources to resolve an ambiguity.[78] The government argues that the applicants’ interpretation of section 56.1 would limit the ability of a prime minister to advise the Governor General, and therefore it would unconstitutionally restrict the powers of the Governor General:

The power to dissolve Parliament is part of the Office of the Governor General of Canada…. Amendments to the Office of the Governor General of Canada … require amendments authorized by section 41 of the Constitution Act, 1982…. For the same reason, an attempt to legally limit the ability of the Prime Minister to advise the Governor General to dissolve Parliament risks the need for a constitutional amendment under section 41. By convention, the Governor General can only exercise the power of dissolution on the advice of the Prime Minister. Therefore, limiting the ability of the Prime Minister to request dissolution would likely constitute a fetter on the Office of the Governor General.[79]

Section 41 of the Constitution Act, 1982 refers to “the office of … the Governor General….” The powers the Governor General exercises on the advice of the prime minister are very extensive. The government’s written arguments appear to say that none of these powers, which are effectively exercised at the prime minister’s personal discretion, can be altered by an ordinary statute, passed by Parliament. Parliament, therefore, would apparently have its legislative power drastically curtailed if the courts accepted the government’s interpretation of the Constitution. The government will have the opportunity to elaborate on its position in the Federal Court.

CONCLUSION

A Federal Court judge will have reviewed these written arguments prior to the hearing on September 8, 2009. Conacher and Democracy Watch will have an opportunity to respond to the arguments presented by the Government of Canada in response to their application, and the judge will be able to question lawyers for both sides on their arguments. The court’s decision will be rendered some weeks or months later.

FURTHER READING

Dan Shouldice and Ken Dickerson, "Federal Court to Decide If P.M. Harper Won an Illegal Election" Centre for Constitutional Studies (3 July 2009).

* Dan Shouldice is a student in the Faculty of Law, University of Alberta. The author’s views do not necessarily reflect those of the Management Board and staff of the Centre for Constitutional Studies.

[1] “Harper’s snap election call heads to Federal Court” The Globe and Mail (24 June 2009), “Federal Court to hear election challenge” CTV.ca (23 June 2009).

[2] S.C. 2000, c. 9, section 56.1(1).

[3] Applicant’s Record, Volume IV: Memorandum of Fact and Law, Conacher v. Canada (Prime Minister), Federal Court of Canada, File No. T-1500-08 (9 April 2008) at para. 73 (“Applicant Factum”).

[4] Respondents’ Record, Volume II of III: Memorandum of Fact and Law, Conacher v. Canada (Prime Minister), Federal Court of Canada, File No. T-1500-08 (11 May 2009) at paras. 39-41 (“Respondent Factum”).

[5] Federal Courts Act, section 18.1(3)(b).

[6] Respondent Factum at paras. 40 and 42.

[7] Ibid. at paras. 40-43

[8] Ibid. at para. 43, citing Black v. Chretien (2001) 54 O.R. (3d) 215 at para. 59.

[9] Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374 (H.L.) at 418.

[10] Respondent Factum at paras. 45-46.

[11] Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Toronto: Carswell, 1999) at v-vi and 1-5.

[12] Applicant Factum at para. 73.

[13] Respondent Factum at para. 18

[14] Applicant Factum at para. 43 and Respondent Factum at para. 51, citing respectively Re. Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 at 888 and Re. Objection by Quebec to a Resolution to Amend the Constitution [1982] 2 S.C.R. 793 at 802, both citing Sir W. Ivor Jennings, The Law and the Constitution (5thed., 1959) at 136.

[15] Applicant Factum at para. 30.

[16] Ibid. at para. 36.

[17] Ibid. at para. 37.

[18] Ibid. at paras. 3-13.

[19] Respondent Factum at para. 53.

[20] Ibid. at para. 51.

[21] Ibid. at para. 54.

[22] Ibid. at para. 23.

[23] Applicant Factum at para. 43.

[24] Ibid. at para.s 32 and 47.

[25] Respondent Factum at para. 52.

[26] Ibid. at para. 54.

[27] Applicant Factum at para. 44.

[28] Respondent Factum at para. 48.

[29] Ibid.; Constitution Act, R.S.B.C. 1996, c. 66, section 23; Election Act, R.S.O. 1990, c. E-6, section 9.

[30] Respondent Factum at para. 18.

[31] Ibid. at para. 20.

[32] Hogg, Peter W., Constitutional Law of Canada, 2008 Student ed., (Toronto: Thomson Carswell) at 22-23.

[33] Respondent Factum at para. 21.

[34] Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753.

[35] Hogg, supra note 32 at 24.

[36] Applicant Factum at para. 63.

[37] Ibid., citing Osborne v. Canada (Treasury Board) [1991] 2 S.C.R. 69 (“Osborne”).

[38] Osborne, ibid. at 25 (emphasis added).

[39] Respondent Factum at para. 26.

[40] Applicant Factum at para. 66.

[41] Respondent Factum at para. 78.

[42] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, section 3.

[43] Applicant Factum at para. 49, citing Figueroa v. Canada (Attorney General) 2003 SCC 37 at paras. 49-51, citing Libman v. Quebec (Attorney General) [1997] 3 S.C.R. 569 at para. 47.

[44]Applicant Factumat para. 51, citing Harper v. Canada (Attorney General) 2004 SCC 33 at para. 87.

[45] Respondent Factum at para. 72.

[46] Applicant Factum at para. 17.

[47] Ibid. at para. 50.

[48] Ibid. at para. 51.

[49] Ibid. at para. 52.

[50] Respondent Factum at para. 84.

[51] Ibid. at para. 81.

[52] Ibid. at para. 89.

[53] Ibid. at para. 74.

[54] Ibid. at para. 59.

[55] Applicant Factum at para. 3.

[56] Respondent Factum at para. 63.

[57] Ibid. at para. 64.

[58] Ibid.

[59] Public interest standing is discussed in Jim Young, “Court Affirms Morgentaler’s Standing in Constitutional Challenge” Centre for Constitutional Studies (29 May 2009).

[60] Respondent Factum at para. 65.

[61] Ibid. at para. 66.

[62] Ibid.

[63] Ibid. at para. 60.

[64] Ibid.

[65] Ibid. at para. 62.

[66] S.C. 2000, c. 9, s. 56.1.

[67] Applicant Factum at para. 60.

[68] Ibid. at para. 57, citing Rizzo & Rizzo Shoes Ltd. (Re.), [1998] 1 S.C.R. 27 at para. 21.

[69] R.S.C. 1985, c. I-21, section 12.

[70] Respondent Factum at para. 10.

[71] Ibid. at para. 11.

[72] Applicant Factum at para. 60.

[73] Ibid. at para. 59, citing Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 8.

[74] Respondent Factum at para. 38.

[75] Applicant Factum at paras. 61-62.

[76] Ibid. at paras. 64-65.

[77] Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 62 (emphasis in original).

[78] Respondent Factum at para. 33.

[79] Respondent Factum at paras. 27-29.