Fixed date elections, parliamentary dissolutions and the court.

• Author: Stoltz, Doug

Bill C-16, An Act to amend the Canada Elections Act, received royal assent on May 3, 2007. It provided that a general election would be held on the third Monday in October in the fourth calendar year following polling day for the preceding general election, thereby setting up a system of fixed election dates. It provided for the first such election to be held on Monday, October 19, 2009. However, the amended Act also stipulated that the powers of the Governor General were to be unaffected, in particular the power to dissolve Parliament at her discretion. In 2008, the Prime Minister asked the Governor General to dissolve Parliament, and the first general election following the amendment of the Act was held on October 14, 2008. That prompted an outcry from a number of observers, some going so far as to suggest that the new law had been infringed. An application was made to the Federal Court challenging the government's action. The Court's judgment refusing the application was handed down on September 17, 2009. This article looks at the issues raised by the parties and the decision of the Court.

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The decision of the Federal Court in Conacher v. Canada (Prime Minister) (1) offers a glimpse from a judicial perspective of a feature of the constitution that generally escapes the purview of the courts, despite its crucial role in the functioning of our legal institutions: the Crown's power to dissolve Parliament and precipitate a general election. Wrapped up with it is the Governor General's obligation under most circumstances to exercise her powers on the advice of the government of the day, an obligation founded not in law but in convention and therefore not enforceable by the courts.

The application for judicial review sought a declaration that the calling of the election in October 2008 was contrary to the new section 56.1 of the Canada Elections Act, (2) which ostensibly provides for a regime of regular fixed-date elections. The grounds of the application involved the interpretation of the statutory language, but also led the court to a consideration of the nature of the royal prerogative and constitutional conventions. It became necessary for the Court to consider at some length its jurisdiction to hear and determine the issues raised. In particular, it addressed an argument that the Governor General's decision was ultimately political in nature and that judicial scrutiny of such actions would upset the "separation of powers" between the executive and judicial branches of government. The Court accepted this argument, among others, and denied the application.

Prerogative and Statutory Powers

The prerogative of the Crown, in Canada as in the United Kingdom, comprises the residue of royal powers and privileges that have survived over centuries as parliaments gradually became ascendant. These powers form part of the common law and so fall outside the "written" constitution, made up of enactments such as the Constitution Acts, 1867 to 1982. Prerogative powers generally relate to core executive functions or matters of "high policy" that require wide discretion and political judgment. Among the most significant are the choice of ministers of the Crown, the conduct of intergovernmental relations, issues relating to national defence, the direction of parliamentary business and the summoning, prorogation and dissolution of Parliament itself. In Canada, the Sovereign's prerogatives are formally delegated to the Governor General, currently in "letters patent" issued in 1947 by George VI on the advice of Prime Minister Mackenzie King. (3) By virtue of the conventions of parliamentary government, the Governor General as a rule exercises her powers, both statutory and prerogative, on the advice of the Prime Minister and Cabinet. (4)

In very limited circumstances, a Governor General may act without or even contrary to ministerial advice. Convention dictates that the Prime Minister is the party leader who, for the time being, can command a majority of the members in the House of Commons on a vote of confidence. In a minority Parliament, the Prime Minister and his party can lose such a vote, in which case he can either resign or request a dissolution. Resignation leads to a transfer of power to the incumbent's adversaries, so there is a natural tendency to seek an election and the opportunity to improve one's party standings. The Governor General retains a "personal" prerogative which operates as a brake against this tendency. Following a loss of the House's confidence, she may decline advice to dissolve Parliament and instead select another party leader who stands a chance of gaining that confidence. The clearest occasion for such refusal would be the defeat of a government's first throne speech following a general election. On the other hand, refusal would be considered unusual after a minority Parliament had survived as long as two years.

The major source of executive power, in terms of volume and visibility, is today found in statutes and regulations. The extensive powers conferred by enacted law on the Governor in Council (the Governor General acting on the advice of the Cabinet) tend to be specific and detailed. The nature of prerogative powers makes them less amenable to codification in a rigid set of written rules. Although they confer a wide latitude on government, it is not unlimited and when exceeded is subject to judicial review. The distinction between statutory and prerogative powers becomes an issue when governmental action is challenged in the courts.

The jurisdiction of the Federal Court to review illegal action under the Federal Courts Act is limited mainly to the exercise of powers conferred "by or under an Act of Parliament." (5) On its face, this language excludes the Governor General's power of dissolution, being an element of the Crown's prerogative rather than a power conferred by statute. The Federal Court appeared to appreciate this distinction but did not expressly rely on it to deny the...