Law Prof to Seek Injunction Against “Illegal Election”

By: Law is Cool · September 2, 2008 · Filed Under Politics · 2 Comments

Christina Spencer of the Winnipeg Sun reports,

If Prime Minister Stephen Harper forces a federal election in the coming days, a law professor at the University of Ottawa may go to court to challenge the legality of the election call.

“This is not about politics, this is about the rule of law in this country,” Errol Mendes told Sun Media. “I spend my entire life in this profession to uphold the rule of law.”

Citing parliamentary “dysfunction,” the prime minister has said he might call an election. Mendes argues that wouldn’t be legal because the Conservatives introduced, and Parliament passed, a law that “fixes” the next election for Oct. 19, 2009.

h/t Vlad Glebov

Post tags: Vlad Glebov

Comments

2 Responses to “Law Prof to Seek Injunction Against “Illegal Election””

Annie on September 2nd, 2008 10:11 am

Someone has to do something. I do not see anywhere in the Fixed Elections bill, that says it does not apply to a Minority. Harper is lying. It has to be looked into, pronto !
Constantinos Ragas on September 2nd, 2008 10:38 pm

Now, now… Let’s be honest here.

Here’s the text of the bill: http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3294668&file=4

“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.

(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.”

The key thing to emphasize here are that s. 56.1(1) stipulates that nothing in the section prohibits the Governor General, who according to Parliamentary custom acts on the Prime Minister’s advice, from dissolving Parliament. The fixed election date, i.e., subsection 56.1(2) is “subject to” the aforementioned subsection.

It would therefore seem to me that this uOttawa professor’s claim is based more on politics than law. It took me a considerable amount of time as a law student to realize and appreciate the distinction between the two. It is imperative that this distinction be maintained, and the claim dismissed. To allow such a suit to be heard beyond a hearing for summary dismissal (should the claim be brought forward), is not, in my opinion, in the interests of justice.

Should the learned professor wish to challenge the Prime Minister, perhaps a more appropriate forum would be the House of Commons. He is, after all, free to run as an MP in his own riding, and take the Conservative government to task on this issue (and many others).

But to clog our courts with a frivolous claim – when all the nation is shouting for more access to justice, speedier trials and proceedings, and the rest – it seems antithetical to encourage such behaviour from a member of a Faculty of Law.

There is an old saying in politics, “if you don’t like ‘em, through the bastards out!” A democratic people’s power lay in the active participation of its citizenry. The passivity under which we permit our politicians to pervert our institutions, laws, and values is as much our the product of our own apathy as it is to be pinned on the poor leadership of others.

Vote. Be engaged. Let your voice be heard. But to abuse our courts with such reckless and irreverent disregard for our most sacred and independent judicial branch – a true pillar of any democracy – is nothing more than a base attempt at self-promotion and aggrandizement.