[2011] 4 F.C.R. 22
A-427-09
2010 FCA 131
Duff Conacher and Democracy Watch (Appellants)
v.
The Prime Minister of Canada, the Governor in Council of Canada, the Governor General of Canada and the Attorney General of Canada (Respondents)
Indexed as: Conacher v. Canada (Prime Minister)
Federal Court of Appeal, Létourneau, Layden-Stevenson and Stratas JJ.A.—Ottawa, May 25, 2010.
Elections — Appeal from Federal Court decision dismissing judicial review of Prime Minister’s conduct in advising Governor General of Canada to dissolve 39th Parliament of Canada, set election date — Whether Prime Minister contravening Canada Elections Act, s. 56.1 — Governor General’s discretion, power to dissolve Parliament, set election date preserved by Act, s. 56.1(1) — That power also extending to Prime Minister — Governor General not bound by s. 56.1 — Having to consider variety of factors before dissolving Parliament, calling election — Act, s. 56.1 not prohibiting dissolution of Parliament, calling of elections at times other than those set out in Act, s. 56.1(2) — Prime Minister not infringing Canadian Charter of Rights and Freedoms, s. 3 — Appeal dismissed.
Construction of Statutes — Prime Minister advising Governor General of Canada to dissolve 39th Parliament of Canada, set election date — Whether Prime Minister contravening Canada Elections Act, s. 56.1 —That section having to be interpreted in light of Governor General’s constitutional status, role — Powers, discretion of Governor General preserved under s. 56.1 — Preservation extending to Prime Minister’s advice-giving role — Had Parliament meant to prevent Prime Minister from advising Governor General with respect to dissolution of Parliament, setting of election date, would have used specific wording to that effect — Wording of Act, s. 56.1 not preventing dissolution of Parliament, calling of “snap election” at times other than those set out in s. 56.1(2).
Constitutional Law — Charter of Rights — Democratic Rights — Prime Minister advising Governor General of Canada to dissolve 39th Parliament of Canada, set election date — By doing so, Prime Minister not infringing rights of Canadians to vote, run for office under Charter, s. 3.
Constitutional Law — Conventions — Prime Minister advising Governor General of Canada to dissolve 39th Parliament of Canada, set election date — Canada Elections Act, 56.1(1) preserving Governor General’s discretion, power to dissolve Parliament, set election date — Federal Court finding no new constitutional convention limiting Prime Minister’s ability to advise Governor General in present circumstances — That finding amply supported by evidentiary record in this case.
This was an appeal from a Federal Court decision dismissing an application for judicial review of the Prime Minister’s conduct in advising the Governor General of Canada to dissolve the 39th Parliament of Canada and to set an election date.
At issue was whether the Prime Minister contravened section 56.1 of the Canada Elections Act, which preserves the Governor General’s powers and provides for set election dates.
Held, the appeal should be dismissed.
Section 56.1 must be interpreted in light of the constitutional status and role of the Governor General. Subsection 56.1(1) preserves the Governor General’s discretion and power to dissolve Parliament and set an election date. The preservation of that power and discretion may also extend to the Prime Minister’s advice-giving role. If Parliament meant to prevent the Prime Minister from advising the Governor General that Parliament should be dissolved and an election held, it would have used explicit and specific wording to that effect. Subsection 56.1(2) is a clear expression of the will of Parliament that, on the express terms of subsection 56.1(1), does not to bind the Governor General. But under the constitutional framework and as a matter of law, the Governor General may consider a wide variety of factors in deciding whether to dissolve Parliament and call an election. The wording chosen by Parliament in section 56.1 does not prohibit dissolution of Parliament and the calling of a “snap election” at times other than those set out in subsection 56.1(2). Finally, by advising the Governor General, the Prime Minister did not infringe the rights of Canadians to vote and to run for office under section 3 of the Canadian Charter of Rights and Freedoms.
STATUTES AND REGULATIONS CITED
Canada Elections Act, S.C. 2000, c. 9, s. 56.1 (as enacted by S.C. 2007, c. 10, s. 1).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 3.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 50.
CASES CITED
referred to:
Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, (1992), 88 D.L.R. (4th) 193, 2 Admin. L.R. (2d) 229.
appeal from a Federal Court decision (2009 FC 920, [2010] 3 F.C.R. 411) dismissing an application for judicial review of the Prime Minister’s conduct in advising the Governor General of Canada to dissolve the 39th Parliament of Canada and to set an election date. Appeal dismissed.
APPEARANCES
Peter M. Rosenthal for appellants.
Robert B. MacKinnon and Agnieszka Zagorska for respondents.
SOLICITORS OF RECORD
Roach, Schwartz & Associates, Toronto, for appellants.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment of the Court delivered orally in English by
[1] Stratas J.A.: This is an appeal from the judgment of the Federal Court dismissing the appellants’ application for judicial review: 2009 FC 920, [2010] 3 F.C.R. 411.
[2] Before that Court, the appellants applied for various declarations. These focused on the conduct of the Prime Minister in advising the Governor General of Canada to dissolve the 39th Parliament of Canada and to set an election date. The Governor General dissolved Parliament and set an election date of October 14, 2008.
[3] The appellants submit that, in giving the advice he gave to the Governor General, the Prime Minister contravened section 56.1 [as enacted by S.C. 2007, c. 10, s. 1] of the Canada Elections Act, S.C. 2000, c. 9. That section provides as follows:
| Powers of Governor General preserved |
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. |
| Election dates |
(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. |
[4] Section 56.1 must be interpreted in light of the constitutional status and role of the Governor General. Section 56.1 does not prohibit the Governor General from dissolving Parliament and setting an election date. In fact, this discretion and power (enshrined in section 50 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]) is specifically preserved by subsection 56.1(1). The Governor General’s status, role, powers, and discretions are unaffected by section 56.1.
[5] Various conventions are associated with the Governor General’s status, role, powers, and discretions. Some of these conventions, which are open to debate as to their scope, concern the Prime Minister’s advice to the Governor General about the dissolution of Parliament and how the Governor General should respond: Peter W. Hogg, Constitutional Law of Canada, 5th ed., Vol. 1, loose-leaf (Toronto: Carswell, 2007), at pages 9-29 to 9-33. In our view, given the connection between the Governor General and the Prime Minister in this regard, the preservation of the Governor General’s powers and discretions under subsection 56.1(1) arguably may also extend to the Prime Minister’s advice-giving role. In any event, it seems to us that if Parliament meant to prevent the Prime Minister from advising the Governor General that Parliament should be dissolved and an election held, Parliament would have used explicit and specific wording to that effect in section 56.1. Parliament did not do so. In saying this, we offer no comment on whether such wording, if enacted, would be constitutional.
[6] The appellants forcefully argued that this interpretation leaves section 56.1 with no meaning. We disagree. Subsection 56.1(2) is a clear expression of the will of Parliament, a will that, on the express terms of subsection 56.1(1), in no way binds the Governor General. But under our constitutional framework and as a matter of law, the Governor General may consider a wide variety of factors in deciding whether to dissolve Parliament and call an election. In this particular case, this may include any matters of constitutional law, any conventions that, in the Governor General’s opinion, may bear upon or determine the matter, Parliament’s will as expressed in subsection 56.1(2), advice from the Prime Minister, and any other appropriate matters.
[7] If the section were interpreted in the manner suggested by the appellants, the Prime Minister would be prohibited from advising the Governor General that an election should be held because of dire need or an event of grave importance. We do not accept that section 56.1 has that result. Such a drastic result would require the clearest of statutory wording. This is a further indication that section 56.1, as drafted, does not affect the Prime Minister’s ability to give advice to the Governor General.
[8] The appellants urge this Court to have regard to the purpose of section 56.1, as exemplified by Parliamentary statements in Hansard. We see no need to have to resort to Parliamentary statements, as the wording of section 56.1 is clear. In any event, the Court below found the Parliamentary statements concerning the purpose of section 56.1 to be unhelpful, as there are statements that go in opposite directions. Based on our review of this material, we see no reason to disagree with and interfere with that finding of the Court below.
[9] In any event, the purpose behind section 56.1 that the appellants proffer—to prohibit dissolution of Parliament and the calling of a “snap election” at times other than those set out in subsection 56.1(2)—is not reflected in the wording chosen by Parliament in section 56.1. As we have held above, the wording of section 56.1 expresses the will of Parliament but leaves the Prime Minister and the Governor General able to act in the way they did.
[10] Therefore, based on our interpretation of section 56.1, the Court below was correct in declining to issue a declaration that the Prime Minister contravened section 56.1.
[11] Likewise, we agree with the Court below that the Prime Minister’s act in advising the Governor General did not infringe the rights of Canadian citizens to vote and to run for office under section 3 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. In this regard, the appellants submitted that the Prime Minister caused the election to take place before the times set out in subsection 56.1(2) and this may have caught certain political parties unprepared. To the extent that this may have caused any infringement of section 3 of the Charter, as a matter of law it was the Governor General that called the election, not the Prime Minister. Further, on this issue, the political parties allegedly affected by this are not before this Court. We query the appellants’ standing to litigate those parties’ section 3 rights; those parties were well placed to bring such a claim themselves: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, at pages 254–256.
[12] Finally, we decline to make a declaration that there is a new constitutional convention that limits the ability of the Prime Minister to advise the Governor General in these circumstances. The Court below found as a fact that no such convention exists. That finding is amply supported by the evidentiary record in this case.
[13] As a result, we will dismiss the appeal. In these unusual circumstances and given the novel issues involved, we will not order costs.