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Last federal election broke law, says government watchdog

VANCOUVER - This fall, politicians were supposed to be campaigning in Canada's first federal election where the date was known in advance. That date was set in law by amendments to the Canada Elections Act introduced and passed by the Conservative government.

Instead, on September 8, a group of political activists will argue in Federal Court that Stephen Harper broke that law last year when he advised the Governor General to call an election one year ahead of schedule.

Democracy Watch, an advocacy group for government and electoral reform, initiated the court case during last fall's campaign. The group originally wanted the case heard before the October 14 election.

That request was denied and a hearing date was only announced this week. But that does not change what they hope to achieve with the case, according to the coordinator of Democracy Watch.

“A lot of people thought we were trying to stop the election,” said Duff Conacher. “We know the Governor General can dissolve Parliament, we can't challenge that, that's in the constitution.

“But we want to challenge what the Prime Minister did.”

If the Court rules the law was not broken, that will also be a “win” for Democracy Watch, Conacher said, since it will prove the Conservatives did not live up to their election promise to implement fixed date elections.

No one disputes that Harper broke a promise, but in the opinion of University of Victoria political scientist Dennis Pilon, the Court is unlikely to conclude he broke the law, since the law specifically acknowledges the Governor General's discretionary power.

“The thing about parliamentary systems is that they always have that flexibility built into them, that this is the fixed election date, barring some other problem,” he said.

In international experience, Pilon continued, “the pretext for the election can be pretty flimsy.”

In court, Democracy Watch will use the Conservatives' own words to argue the flexibility only applies when there is a non-confidence vote in the House of Commons.

“Any law is vague,” said Conacher. But the Court is required to interpret the law in light of statements made in Parliament. “And everything they said was that the law means the Prime Minister will be restricted,” he said.

For example, when Rob Nicholson, then the Minister for Democratic Reform, introduced the bill, he said:

Some opposition members have indicated that this bill is illusory in that the Prime Minister can call an election at any point up until the fixed date for the election, but that is not how our system of responsible government actually works. The Prime Minister has to retain his prerogative to advise dissolution to allow for situations when the government loses the confidence of the House. That has to be there. This is a fundamental principle of our system of responsible government.

Moreover, if the bill were to indicate that the Prime Minister could only advise dissolution in the event of a loss of confidence, it would have to then define confidence and the dissolution of the House of Commons would then be justiciable in the courts, something that we do not want. We do not want the courts to decide what is a confidence measure and what is not.

Conacher wants exactly that.

If matters of confidence were clearly defined, he argues, “then everything else, by default, would not be a confidence vote ... and that would free MPs to vote their conscience and the will of their constituents.”

But new laws would not solve the problem, said Pilon. “You have people who think we can fix all the details of politics in law, and that's where Democracy Watch is coming from,” he said.

“The only problem is that, no matter where you fix the rules, power can find a way around it.”

Pilon argues that enforcing the fixed election schedule is a matter of political -- not legal -- debate.

“People should judge Harper based on these kinds of actions but there's nothing for the courts to do here.”

“If people think this is a terrible, terrible thing, they should punish the Conservatives and put someone else in power,” he said. “The problem here is that most people really don't care that much... Is it going to be a ballot question? No.”

Conacher acknowledges that one purpose of the case is to remind the public “about the Prime Minister breaking his promise and violating his own law.”

But he also said that, now they have all their legal arguments prepared, Democracy Watch would go to court early if the same thing happened again.

“We're ready, if [Harper] is going to try the same snap election trick this summer, we're going to try and stop it,” he said.

The only snap election Democracy Watch could not fight, is if the Prime Minister arranged it to happen on the October 19, 2009 date that is still written into the legislation.

That “would just be so bizarre for him to do,” said Conacher, “but I wouldn't put it past him.”

Amelia Bellamy-Royds reports for The Tyee.

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