How we head to the polls, fixed dates or not

Despite Canada's fixed election dates legislation, the prime minister still has the power to request and receive a dissolution of Parliament from the Governor General, legal scholars say.
If history is any guide, Gov. Gen. Michaëlle Jean, seen with Prime Minister Stephen Harper in May, won't be able to stop an early election if the PM decides to call one. ((Fred Chartrand/Canadian Press))
Calling a federal election in this country is generally straightforward, if a bit more complicated this time around by minority government and the politics of fixed election dates.

A former British colony, Canada follows the Westminster system of parliamentary democracy.

That gives a sitting prime minister, who already has the confidence of the House of Commons, the de-facto right to call an election when he or she chooses to.

Granted, Canadian election law and the British North America Act of 1867 state that Parliament is dissolved by the Governor General but that is only supposed to happen when the prime minister so advises.

Convention dictates that such advice is binding, not simply a polite suggestion.

A prime minister goes to Rideau Hall, has a discreet chat with the Queen's representative, then emerges to tell the country that it's off to the polls in up to six weeks time.

In typically British fashion, the process is largely left to precedent and convention, not spelled out explicitly in law.

No wriggle room on dissolution

That makes it no less mandatory, says political scientist Curtis Johnson Cole of the University of Toronto. The Governor General doesn't have a lot of wriggle room when given advice by a sitting prime minister. 

From the Canada Elections Act, Section 5


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

Election dates

(2) Subject to subsection (1), each general election must be held on the third Monday of 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.

S.C. 2007, c. 10, s. 1.

"Theoretically, yes, a Governor General has discretionary powers in this situation, but in practice [is] bound by law and convention to dissolve the House when asked to," Cole says.

This time around, there is a complication.

In May 2007, a bill to amend the Canada's Elections Act became law and suddenly this country joined the list of nations that have fixed dates to go to the polls.

In this case, the next federal vote was supposed to come in October 2009, with future votes on the third Monday of October at four-year intervals.

That was a central part of Prime Minister Stephen Harper's plans to reform Canadian democracy, as he explained in a speech touting the proposal in May, 2005.

"Fixed election dates stop leaders from trying to manipulate the calendar simply for partisan political advantage," the prime minister said, but he added a proviso.

"Unless we're defeated or prevented from governing,"  he said, "we want to keep moving forward to make this minority Parliament work over the next three years."

Prime Minister Stephen Harper, seen with and Gov. Gen. Michaëlle Jean in Quebec City in July, won't be breaking his own law if he decides to call an early election, according to one expert. ((Jacques Boissinot/Canadian Press))
Thus Harper's oft-repeated refrain that Parliament isn't working and the opposition is preventing governance.

He's making that argument to Canadians, who will make up their minds as they see fit. But one Canadian who will be listening to the prime minister's reasoning in somewhat different circumstances is Gov. Gen. Michaëlle Jean.

Some are asking whether she might see her role as somewhat more interventionist than usual, given the fixed election dates law.

King-Byng affair

Commentators have delved into history to find an example of a Queen's representative turning down a Canadian prime minister's request to dissolve the House of Commons.

In 1926,  William Lyon Mackenzie King's minority Liberal government was wracked with scandal. A powerful Conservative opposition had moved a motion of censure against King, who then went to Governor General Lord Byng to request a dissolution.

It didn't happen.

Byng refused, not once but twice, and King had no option but to resign. Byng swore in Conservative Leader Arthur Meighen as prime minister.

A combined Liberal and Progressive Party opposition denied the Tories a vote of confidence, forcing an election, which King eventually won with a majority.

William Lyon Mackenzie King, who was prime minister six times between 1921 and 1948, asked Gov. Gen. Lord Byng for a dissolution of Parliament in his second term in office but was refused. (CBC)
The episode forced a redefinition of Britain's role in Canadian affairs that emphasized the prerogative of prime ministers to call elections.

The opposition's turn?

So where does it leave the current occupant of Rideau Hall, assuming she'll have some prime ministerial advice to consider in the near future?

Might Jean, for example, tell Harper to sit tight while she consults with Stéphane Dion to see whether the Liberal leader is interested in trying to form a government?  Or Bloc Québécois Leader Gilles Duceppe or Jack Layton, leader of the NDP?

No way, according to constitutional scholar Ned Franks of Queen's University, who says consultation between the Governor General and other political leaders can only happen very early in the life of a minority Parliament as a way of examining all options for political stability.

"We're way past that in Ottawa now, way past it," he says.

Franks also believes Harper isn't breaking his own law by calling an early election.

"What he's doing is breaking a commitment he made to the House of Commons. This isn't the first time this government, or any other government for that matter, has done something like that," Franks says.

History and precedent look set to prevail, sending us to the polls whenever Harper chooses.



With files from the Canadian Press