...and broken records

Certain provincial politicians, who should know better, have recently repeated the lie — and it is a lie — that the House of Assembly Act (sometimes it's erroneously given as the Elections Act) would have to be amended in order to legally allow Chairman Dan to break his solemn 2003 campaign promise (supra) of fixed election dates.

And certain reporters, at last count three of them, have swallowed this line, hook, and sinker, and repeated, like a broken record, the misinformation that such a legislative amendment would be necessary.

It would not.

As the late Jack Harris pointed out in debate on the "fixed election" bill on December 7, 2004:

We heard comments yesterday from the Premier talking about notwithstanding clauses, how they might be used, how they might have effects on what might happen, notwithstanding clause having the ability to overrule everything else that is in the piece of legislation. What do we have here? "Notwithstanding subsection (2), the Lieutenant-Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit."

Who does the Lieutenant-Governor take his advice from? He takes it, I think, from the Lieutenant-Governor in Council, the Cabinet, the Premier. I guess it depends on what kind of advice the LG is going to get, then.

What is the point of a fixed date, four years, if, under this section, the Lieutenant-Governor is still required to take the advice of the Lieutenant-Governor in Council as to when he calls an election?

[...]

What if the Premier gets up some morning and decides, I want to have an election next month? He does not have to wait. There is nothing that I see in here that prohibits the Premier, the Lieutenant-Governor in Council, from telling the Lieutenant-Governor to call an election.

Prescient words. Possibly a little too prescient.

The text of the Bill itself, and the House of Assembly Act as thereby amended, provide:

Duration of House of Assembly

3. (1) Notwithstanding subsection (2), the Lieutenant-Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit.

(2) A polling day at a general election shall be held on the second Tuesday in October, 2007 and afterward on the second Tuesday in October in the fourth calendar year following the polling day at the most recently held general election.

See?

Reading between the constitutional lines, "when the Lieutenant-Governor sees fit", translated from Westminsterese to the real world, means "when the Premier sees fit". Chairman Dan already has the power, under s. 3(1), to cynically break his "fixed election" promise. The election date is only as "fixed" as Chairman wants it to be.

Any reporter or political panellist who has trouble understanding this should get it explained to them by a good lawyer, not by The Great Lawyer.

Go ask Jack Harris.