Was The 2008 Federal Election Illegal?

In reading the December/January issue of The Beaver magazine, I was reminded that in the wake of this past fall's election, Democracy Watch is suing the government claiming that Harper's election call broke the law.

Sadly, I think that Democracy Watch has it all wrong. While I have no issue whatsoever with the claim that Harper broke the spirit of his fixed election dates law, I think that Democracy Watch failed to notice that in fact nothing about that law actually limits the Prime Minister's discretion in asking the Governor General to dissolve parliament. It unquestionably obliges Elections Canada to set up the apparatus for voting on a fixed date, but it at no time obliges the sitting Prime Minister to ask the Governor General to dissolve Parliament prior to that date, nor does it demand that the Governor General sign the Writ of Election prior to that date.

Harper did not per se break his own law because his own law has absolutely nothing in it to constrain when an election is called. In fact, the real tragedy of Harper's Bill C-16 is that Canada already has fixed election dates, and has had them since the days of the old BNA Act.

From the Constitution 1867 Act: (Formerly known as the British North America Act)

50. Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.

It is only by tradition that our parliaments typically are dissolved somewhere after the end of the fourth year.

Harper's bill C-16 is, in fact, completely redundant, since the constitution already mandates that a parliament has a maximum duration of five years, after which it must be dissolved. All Harper had to do to make his law work was to limit the powers of the PM to demand early dissolution of parliament. He didn't do that.

As a result, although Harper has certainly broken the stated intent of Bill C-16, he actually has done nothing more than demonstrate that he holds Canada and Canadians in contempt. Not only is he woefully ignorant of our traditions and constitution, but he also has shown us that his disrespect for Canada will drive his legislative agenda. Truly ironic for the tradition of conservatism in Canada is to preserve that which is right and good about our nation, not to hold it in contempt.