Originally posted on the School of Public Policy blog, July 6, 2015.

The Alberta and PEI elections of 2015 were the first early elections called by Canadian majority governments in contravention of fixed-date legislation. Since British Columbia enacted such legislation in 2001, all Canadian jurisdictions except Nova Scotia, Nunavut and Yukon have followed suit. None of the Canadian laws are legally binding, and they were never expected to prevent early elections when minority governments lost the confidence of their elected legislative assemblies. The framers of fixed-date laws did, however, hope they would foster a convention against snap elections called by governments that continued to enjoy confidence. This hope was dashed in minority-government circumstances when the undefeated Harper government called the 2008 election, twelve months before the 2009 date set by its own fixed-date law. Has the hope now also been dashed for majority governments by the recent Alberta and PEI elections?

Nova Scotia premier Stephen McNeil is certainly pessimistic about the efficacy of fixed-date laws in majority circumstances. His government had been preparing to enact fixed dates, but abandoned that plan in April 2015. The laws “haven’t been working,” McNeil explained, and Nova Scotia wasn’t “in the business of creating legislation that people don’t adhere to or wouldn’t be adhered to in this province.” As evidence of the futility of fixed-date laws, McNeil singled out the early elections that had just been called by majority governments in Alberta and PEI.

Fixed-date statutes are not legally binding in Canada for constitutional reasons. Formally, the governor general and lieutenant governors have the discretionary power to call elections at any time, a power almost always exercised on the advice of the relevant first minister. Under section 41(a) of the Constitution Act, 1982, the royal discretion over election timing can be changed in a legally binding way only through a virtually impossible constitutional amendment having the unanimous support of the federal parliament and all of the provincial assemblies. This explains why the fixed-date statutes passed unilaterally by Canadian jurisdictions explicitly announce their non-binding status. British Columbia’s pioneering law set the pattern by subjecting its legislated dates to the continuing discretion of the lieutenant governor to “dissolve the Legislative Assembly when [he or she] thinks fit.” All of Canada’s fixed-date statutes contain similar loopholes.

These loopholes provide the safety valve necessary when a minority government loses confidence and no viable or willing alternative exists to take the reins of power. In such circumstances an early election is needed.  But is it realistic to believe that an undefeated minority premier or prime minister would forgo use of an early-election loophole that everyone agrees is available to the opposition? Federal opposition leader Stéphane Dion apparently thought so when he announced in 2008 that “the power [of calling an election] has been given to me. I will use it. Be ready at any time.” As it turned out, this and similar claims provided the rhetorical cover Harper needed for his own early election call. Dion was naïve if he believed the fixed-date law had simply transferred the discretion to trigger early elections from the prime minister to him.  The failure of fixed-date laws to prevent undefeated minority governments from calling snap elections was predictable.

A majority government, by contrast, entirely “owns” an early election, and thus bears all of the associated political risk. Until this year, no majority government subject to a fixed-date law has been willing to take the risk, and a strong presumption against early election calls by majority governments was evolving. Did the Alberta and PEI elections kill this presumption, as Nova Scotia’s premier suggested? Premier McNeil made his comments about Alberta and PEI before he knew what their electorates would do. He might have come to a more nuanced conclusion had he awaited the outcome of the two elections.

When governments call early elections, they always offer justifications more high minded than taking advantage of favourable polls. In Alberta, Jim Prentice argued that the dramatic collapse of oil prices required a provincial budget so unusually tough that only an early election could supply the needed democratic mandate. As everyone knows, this argument failed spectacularly, and the Alberta Progressive Conservatives went down to ignominious defeat. For a variety of reasons – including, for some, that the budget ultimately wasn’t as tough as advertised – Albertans weren’t happy with the early election call. As Janet Brown wrote before the vote, “if the PCs are defeated … it won’t simply be because they called an early election. But the early election has certainly been a factor in setting the tone for the PC’s rocky campaign.” Brown correctly predicted that a Tory defeat would be “a cautionary tale on the perils of calling an early election.”

In PEI, a mid-term change of leadership in the governing party was used to justify the early election. It was argued that the new premier needed a democratic mandate not only from the party that chose him as its new leader, but also from the electorate at large. Outgoing PEI premier Robert Ghiz, whose government had enacted PEI’s fixed-date law, maintained that “in a parliamentary democracy, there should be certain reasons why you should have [early] elections, and a leadership change is one of those.” PEI’s governing Liberals even tabled a motion indicating a likely early election once their new leader had been chosen.  Thus, few were surprised when the new premier, Wade MacLauchlan, called the spring election, though his opponents nevertheless criticized the move as “naked opportunism.”

The opportunism charge could not be made in similar circumstances in Newfoundland, where the fixed-date law uniquely requires a new leader to call an election within 12 months of taking power. Elsewhere, early elections to ratify a leadership change remain politically risky. In 2011, for example, Christy Clark considered, but ultimately rejected, an early election in B.C. after her mid-term replacement of Gordon Campbell. Similarly, although Jim Prentice could have relied on the leadership-transition argument to justify his early election call – he had replaced Allison Redford mid-term – he emphasized the tough-budget instead. PEI’s Wade MacLauchlan was thus the first majority premier to ignore legislated dates mainly on the grounds of leadership transition.

MacLauchlan’s early-election gambit was as successful as Prentice’s was disastrous. The PEI Liberals were returned with a renewed legislative majority, while Alberta’s PCs were reduced to a third-party rump. What do these different outcomes imply for the long-term fate of fixed-date laws in majority-government circumstances? First, the “cautionary tale” told by Alberta’s election will surely deter imitation. Second, while MacLauchlan’s victory shows that leadership transition can support an early election, this justification obviously applies only to a subset of majority-government situations. Moreover, the leadership-transition justification will (outside Newfoundland) continue to carry political risk. Overall, we should not expect the events of 2015 to generate a substantial increase in snap elections by majority governments. Premier McNeil’s suggestion that the Alberta and PEI elections have killed fixed-date laws in majority-government circumstances looks like a premature overreaction.