Law Times

Law timeS • September 14, 2009 NEWS PAGE 3 Election case unlikely to have big impact: lawyers BY ROBERT TODD Law Times challenge to Prime Minister Stephen Harper's September 2008 election call, but law- yers say it's unlikely the case will have meaning outside the political sphere. "I think the real issue here T is, so what? What's going to be the remedy? At best, there will be a declaration that the prime minister's powers are now fettered," says University of Windsor Faculty of Law dean Bruce Elman. Th e challenge comes from Democracy Watch, an orga- nization that monitors gov- ernment ethics. Th e group and its co-ordinator, Duff Conacher, argued Harper broke a law introduced in 2007 by his own government by failing to abide by a fi xed election date. Democracy Watch fi rst sought a court ruling on the is- sue involving Bill C-16, which altered the Canada Elections Act, before last year's election. But a Federal Court judge said there was insuffi cient time to rule on the matter before Ca- nadians hit the polls on Oct. 14 last year. Th e group says the new law should have kept Harper from going to the gov- ernor general to press for dis- solution of Parliament on Sept. 7, 2008, without losing a con- fi dence vote. In its application for judicial review, Democracy Watch ar- gued that s. 56.1 of the Canada Elections Act, which became law in May 2007, "is to be interpret- ed as limiting such discretion of the governor general to dissolve Parliament only to situations fol- lowing a vote of 'non-confi dence' in the government." Th e application went on to suggest the election call violat- ed s. 3 of the Charter of Rights and Freedoms. "Allowing the prime min- ister discretion as to when to advise the governor general to dissolve Parliament gives the prime minister's political party an unfair advantage in contest- ing the ensuing election," the application stated. "Th erefore, even if it is held that the calling of the election of Oct. 14, 2008, does not contra- vene s. 56.1 of the act, the advan- tage over other federal political parties that the prime minister's political party obtained from the calling of the election in the circumstances, and the lack of advance notice to the public that an election was going to be called, contravene the fairness of elections that is required by s. 3 of the Charter." Government lawyers, how- ever, argued the new law did not alter the discretion held by the governor general to dis- solve Parliament and call an election on the advice of the prime minister. "Th e application seeks to FINLAY_Electronic Documents (LT 1-3x4).indd 1 justice Minister rob Nicholson's pre- vious comments about fixed election dates have been coming back to haunt him. have the court recognize a new non-legal constitutional con- vention and enforce it as a legal rule," reads the government's memorandum of fact and law. "Th e courts, however, have recognized, and the applicants admit, that constitutional con- ventions are guides to political conduct that are not enforce- able by the courts." Th e government asserted that any eff orts to restrict the governor general's power to dissolve Parliament "would re- quire a constitutional amend- ment since it would aff ect the constitutionally entrenched of- fi ce of the governor general." Elman, a constitutional spe- cialist, believes the convention that allowed the prime minister he Federal Court heard arguments last week over a legal to advise the governor gener- al to dissolve Parliament was "negated" by the introduc- tion of s. 56.1 of the act. But, he notes, "Th at is as to the prime minister's con- ventional authority to seek dissolution, not as to the governor general's power to dissolve . . . . So I would say the convention has been al- tered by the statute, and it therefore constricts the pow- ers of the prime minister." He adds that Harper "probably did not have the power to seek the governor general's dissolving of the House." Th e prime minister could have gotten around the constraint by repealing it, says Elman, but "he chose to just ignore it. So I think that you can't ignore it." Elman maintains the ar- gument involving s. 3 of the Charter will be tough for De- mocracy Watch to pull off . "Th e argument is based on fairness," he says. "I think it's hard to make that argument when this was the fi rst time we ever had a fi xed election date. It's tantamount to saying all of the previous elections were unfair, or at least all of the elec- tions where the prime minister decided to dissolve the House." Federal Court Justice Mi- chel Shore reserved his deci- sion. Meanwhile, another elec- tion is expected this fall. Elman suggests a decision on the Democracy Watch case will not be out before the looming election. "A declaration would be useful if it came before a call for an election, but I don't see that happening in this Electronic Documents Records Management, e-Discovery and Trial ntitled-6 1 kind of case," he says. University of Western On- tario professor Bradley Miller, who teaches constitutional law, says our constitution simply does not permit the type of fi xed-election date legislation that Democracy Watch seems to be seeking. He suggests the organization knows this and "must have some collateral purpose" in taking the govern- ment to court on the issue. Justice Minister Rob Nich- olson has taken some heat from the case. When Bill C-16 was rolled out, the then-min- ister of democratic reform said the measures would keep the prime minister from calling an election unless the government lost a confi dence vote before the fi xed election date of Oc- tober 2009. Th e Department of Justice de- clined to comment on the case. Conacher, meanwhile, tells Law Times the case is the fi rst of its kind. "It's a worldwide precedent and will aff ect parliamentary democracies worldwide be- cause of the commonality of constitutional convention and the role of a governor-general- type person," he says. LT Presented by LITIGATING MOTOR VEHICLE ACCIDENT CLAIMS September 30 – Oct. 1 | Toronto Bill 198, the governing law of Ontario's automobile sector, is about to undergo a radical facelift. Ontario's industry regulator, the Financial Services Commission of Ontario (FSCO), published its Report on the Five Year Review of Automobile Insurance on March 31, 2009. Learn what this legislative reform will mean for you at this timely Insight conference. Don't miss these conferences… EMPLOYEE TERMINATIONS September 21 – 22 | Ottawa September 28 – 29 | Calgary E-DISCOVERY and E-DOCUMENTS September 30 – Oct.1 | Halifax October 19 | Montréal B.C. NATURAL GAS September 30 – Oct. 1 | Calgary ATLANTIC CANADA POWER October 5 – 6 | Saint John ENTERTAINMENT SUMMIT October 19 – 20 | Toronto CLINICAL TRIALS October 19 – 20 | Toronto INFRASTRUCTURE PROJECTS October 19 – 20 | Toronto CFO SUMMIT October 21 – 22 | Toronto E-HEALTH October 21 – 22 | Halifax October 26 – 27 | Calgary ABORIGINAL LAW October 26 – 27 | Toronto For more information call 1 888 777-1707 or visit www.insightinfo.com Media Partner 9/8/09 11:46:47 AM Effectively navigate the legal challenges posed by electronic documents Electronic data is modifying how lawyers interact, changing how information is collected and used, and transforming the courtrooms. This in-depth resource examines and analyzes the issues relating to electronic documents, including: • the sources and types of electronic documents • records management policies • the legal framework governing e-discovery in Canada • the preservation, collection, processing, review and production of electronic documents • the use of electronic evidence at trial This dynamic and burgeoning aspect of legal practice is clarified and explained with extensive reference to relevant Canadian and U.S. authorities. Order your copy today! Looseleaf & binder • Approx. $210 • December 2009 Releases invoiced separately (2/yr) P/C 0283030000 • ISSN 1920-1737 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com 9/9/09 3:55:32 PM LT0000 Editors: Bryan Finlay Q.C., Marie- W ith contributions from: Caroline Abela, John M. Buhlman, Steve Doak, Paul D. Guy, Nikiforos Vermette and Michael Statham Andrée Iatrou, J. Gregory Richards, Stephanie L. Turnham, David Vitale, John Wilkinson

• Cover
• LSUC Honours
• The Hill
• Focus On Human Rights Law