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Elections - Federal Cases. Democracy Watch v. Canada (Prime Minister)
In Democracy Watch v. Canada (Prime Minister) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed on stare decisis) an appeal of a denied judicial review challenging the date of the last federal election (it wasn't scheduled regularly every four years), advanced by a well-known public interest group:[1] This is an appeal of an order of the Federal Court (per Zinn J.) dated February 22, 2022. This order struck the appellants’ judicial review application (the Application) challenging the decision of the Prime Minister of Canada made on August 15, 2021 by way of Order in Council 2021-0892 issued by the Committee of the Privy Council, advising the Governor General to dissolve Parliament and call a general election.
[2] The appellants claim that the Prime Minister’s advice to the Governor General violates section 56.1 of the Canada Elections Act, S.C. 2000, c. 9 (the Act).
[3] Section 56.1 of the Act reads as follows:Canada Elections Act, S.C. 2000, c. 9
Loi électorale du Canada, L.C. 2000, c. 9
DATE OF GENERAL ELECTION
DATE DES ÉLECTIONS GÉNÉRALES
Powers of Governor General
Maintien des pouvoirs du gouverneur général
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.
56.1 (1) Le présent article n’a pas pour effet de porter atteinte aux pouvoirs du gouverneur général, notamment celui de dissoudre le Parlement lorsqu’il le juge opportun.
Election dates
Date des élections
56.1 (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.
56.1 (2) Sous réserve du paragraphe (1), les élections générales ont lieu le troisième lundi d’octobre de la quatrième année civile qui suit le jour du scrutin de la dernière élection générale, la première élection générale suivant l’entrée en vigueur du présent article devant avoir lieu le lundi 19 octobre 2009. [4] According to the appellants, that provision prohibits the calling of an election before the fixed election date set out in subsection 56.1(2) of the Act unless, consistent with an emerging unwritten constitutional convention stemming from the 2011, 2015 and 2019 general elections, a vote of non-confidence occurs in Parliament before that fixed date. They contend that this new constitutional convention prohibits election advice driven for purely partisan electoral advantage and that section 56.1 of the Act must now be read accordingly.
[5] The election called by the Governor General on the Prime Minister’s advice was held on September 20, 2021, whereas the fixed election date under subsection 56.1(2) of the Act was October 16, 2023.
[6] The respondents moved for an order striking the Application on the basis that it was moot, bereft of any chance of success, and an abuse of the Court’s process. The respondents also argued that the appellants lacked the requisite standing.
[7] After setting out the test applicable on motions to strike, the Federal Court determined that the Application lacked legal merit and was doomed to fail because this Court had decided the same issues raised therein in Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 F.C.R. 22, leave to appeal to the Supreme Court of Canada dismissed (2011 CanLII 2101 (SCC)) (Conacher). Conacher concerned the advice given by the Prime Minister to the Governor General, on September 7, 2008, to dissolve Parliament and set a polling date for October 14, 2008. This was a year or so after the Act had been amended to include section 56.1.
[8] The Federal Court considered, but rejected, the appellants’ contention that the factual and legal matrix underlying the present matter is different from the one in Conacher. Aside from the fact that the new constitutional convention asserted by the appellants was “far from established”, it determined that Conacher clearly established that section 56.1 of the Act, “as drafted, [did] not affect the Prime Minister’s ability to give advice to the Governor General” (Conacher at para. 7). It further held that, to the extent that constitutional conventions were relevant in deciding whether to call an election, they were only relevant insofar as “in the Governor General’s opinion, [they] may bear upon or determine the matter” (Reasons for Order at paras. 17-18 [my emphasis]). There's more of the stare decisis factual and legislative analysis at paras 13-19.
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