One of Stephen Harper’s first acts as Prime Minister was to enact Bill C-16, An Act to Amend the Canada Elections Act, which purported to establish the principle of fixed election dates in federal law. As it was sold to the public (and particularly to Conservatives of Reform-Alliance heritage), the law was supposed to curtail the power of the Prime Minister to unilaterally trigger an election at a time politically convenient to governing party. Harper would go on to betray his supporters by unilaterally triggering an election at a time politically convenient to the governing party. Recently, the Federal Court of Canada threw out a challenge to the legality of that decision which had been filed by Democracy Watch.

Bill C-16 essentially contains three parts. The first part says that we will have elections every 4 years on the third Monday of October. The second says that there will be federal election on October 19, 2009. The third part says that nothing in the first two parts affects the power of the Governor General to call an election. The specific wording of these provisions appears below:

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.

[Emphasis added.]

In the Federal Court’s decision, Justice Michel Shore emphasized that s. 56.1(1) essentially overrides the other provisions insofar as the Governor General is not prevented from calling an early election on the advice of the Prime Minister. However, the ruling in that case is limited in scope to the calling of an early election and does not specifically deal with the refusal of the Governor General to call an election on 19 October 2009, as mandated in the Elections Act.

In their apparent zeal to bring down the Harper government and trigger a federal election, it might be reasonable for the Liberal Party to raise the issue of the legal effect of s. 56.1(2) of the Elections Act, either privately with the Governor General or in the federal court system. In all likelihood a legal challenge would fail, given that s. 56.1(1) seems to undercut all of s. 56.1(2). However, raising this challenge in a public way might have strategic political benefits for the Liberals, regardless of the outcome.

If successful, the Liberals would get the federal election for which they have so much enthusiasm. If unsuccessful, the Liberals would have concrete proof of something that most legal scholars and political observers have long suspected: that Stephen Harper’s fixed election date law is a complete sham that is of no legal force whatsoever. That might give the Liberals an opportunity to regain a much-needed foothold in Western Canada, where Harper’s popularity is largely predicated on his Reform-Alliance credentials. The West, after all, wants in (or so I have read).

Besides, it would be a nice change of pace for the Liberals to take the Conservatives to court for once.