Judge to rule if 2008 Harper election call legal

OTTAWA — It’s now up to a judge to decide whether Prime Minister Stephen Harper’s snap election call a year ago was not just politically self-serving but also illegal.

OTTAWA — It’s now up to a judge to decide whether Prime Minister Stephen Harper’s snap election call a year ago was not just politically self-serving but also illegal.

Lawyers squared off Tuesday in the Federal Court of Canada in a case that could set a precedent across Canada, and even around the world.

Arguments began exactly one year after Harper forced an early campaign last September — the third in four years.

He did so despite passing changes to the Canada Elections Act in 2007 that set the next vote for Oct. 19, 2009, unless the government fell on a confidence matter first. Federal votes were to be held every four years after that.

The law does not clearly prohibit the prime minister from pre-empting a no-confidence vote and asking the Governor General to dissolve Parliament, which she agreed to do.

Still, watchdog group Democracy Watch says Harper’s opportunistic move broke the spirit if not the letter of the legislation — what it calls the “convention” established by the law.

Co-ordinator Duff Conacher said outside court that Harper either broke the law or his 2006 campaign promise to ban snap elections at a prime minister’s partisan whim.

He also claims Harper’s action breached his Charter right to a fair election, a right affirmed by the Supreme Court of Canada.

Conacher wants a clear ruling that what Harper did was illegal.

“It was exactly the mischief the (fixed-date) bill was designed to stop,” Democracy Watch lawyer Peter Rosenthal told Justice Michael Shore.

Democracy Watch says there was no reason for Harper to force last year’s vote, other than his hunch that he could win majority power. He did not. And his minority government now faces growing pressure for another election this fall — the fourth in five years.

Shore reserved judgment and likely won’t release his decision for weeks or months.

When it comes in, it will set precedent for fixed-date election laws in B.C., Newfoundland and Labrador, Ontario, Prince Edward Island, Saskatchewan and the Northwest Territories. It could also help guide interpretations in other countries that commonly review Canadian law.

If Democracy Watch wins, Conacher said his group will consider a class-action effort to recoup the $350 million taxpayers spent on the last vote. It will also push for a legislated 30- to 60-day “cooling off” period to allow all parties fair chance to prepare for future campaigns before they start.

Government lawyer Robert MacKinnon stressed that the fixed-date election changes in no way diminished the Governor General’s discretion to dissolve Parliament “as she sees fit.”

Democracy Watch is wrongly asking a court to consider what is essentially a moral debate on political fair play — not a legal matter, he argued.

At issue is whether the Harper government’s 2007 changes altered the constitutional “convention” or past practice allowing prime ministers to engineer sudden elections even if they had not been defeated in the House of Commons.

Democracy Watch argues they did. Leading constitutional and political science scholars have taken contrary positions.

Rosenthal and the Liberal opposition cited remarks by Attorney General Rob Nicholson — then minister for democratic reform — and several Tory MPs during fixed-date debates in 2006.

Nicholson and others offered repeated assurances that cynically timed votes would be a thing of the past.

“This prime minister will live by the law and spirit of this particular piece of legislation. He and this government are driving this democratic reform,” Nicholson said as he introduced the legislation in Parliament.

But he also stressed in the Commons on Nov. 6, 2006, that the bill would not mean Harper could only visit the Governor General if he’d suffered a no-confidence defeat.

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