OTTAWA — Almost exactly a year ago, Prime Minister Stephen Harper broke his own law by calling “the most unfair snap election in Canadian history,” the federal court was told Tuesday.
“Prime Minister Harper decided, on Sept. 7, 2008, to contravene the fixed-elections act,” said lawyer Peter Rosenthal, by going to the governor general to seek a sudden election. “That’s exactly the mischief the bill was designed to stop.”
With federal politicians jostling over a possible election this fall, Rosenthal appeared in a dark-panelled courtoom on behalf of clients Duff Conacher and Democracy Watch, who filed legal action against the prime minister in 2008 over the last federal election.
Conacher says the prime minister was either a “dishonest law-breaker” or a “dishonest promise-breaker” when he called an election last year without losing a vote of confidence in the House of Commons. The ensuing Oct. 14 contest returned a Tory minority government.
Blog: Was last year’s fall election justified?
Bill C-16, amending the Canada Elections Act, was passed in May, 2007. It set the date for the next election as Oct. 19, 2009, with subsequent federal elections taking place every four years. The law’s proponents argued the measure would prevent “snap” elections.
Prior to the law’s passage, prime ministers were free to ask the governor general to call an election whenever they wished — usually to take advantage of opposing parties’ relative weakness.
Conacher and Rosenthal argue that once Harper passed the “fixed-date” election law, he couldn’t choose a different date unless his party lost a vote of confidence.
While snap elections are already inequitable, the 2008 vote was “the most unfair snap election in Canadian history,” Rosenthal said, because the new law made everyone think it wouldn’t happen.
Much of the legal argument Tuesday focused on the governor general’s right to call an election. Arguing the government case, lawyer Robert MacKinnon said the change to Canada’s election law did not limit the governor general in any way.
By convention, when the prime minister seeks an election he must go to the governor general, who decides whether or not to dissolve Parliament.
But MacKinnon said conventions “operate in the political domain and remedies lie in the political domain.” They cannot be dealt with as legal matters, he said.
Conacher and Rosenthal, he said, are trying to suggest the law somehow legally restricts the prime minister from “advising” the governor general on an election call.