(Download) "Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates (Canada)" by Andrew Heard * Book PDF Kindle ePub Free
eBook details
- Title: Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates (Canada)
- Author : Andrew Heard
- Release Date : January 22, 2010
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 107 KB
Description
Given the fundamental role that conventions play in the Canadian constitution, it is not surprising that litigants try from time to time to engage the courts in defining or even enforcing the terms of a particular convention. The Federal Court's September 2009 decision in Conacher v. Canada (Prime Minister) (1) is the latest high-profile example. Duff Conacher, Coordinator of Democracy Watch, had launched a court case that challenged the 2008 federal election call as contravening either the provisions of the government's fixed-date election law (Bill C-16, (2) passed in 2007), or conventions supporting the law. The Federal Court rejected Conacher's application, holding among other things that there was no constitutional convention constraining the prime minister from advising an election before the October 2009 date prescribed in the statute. Conacher's appeal was also rejected. In May 2010, the Federal Court of Appeal upheld the lower court's decision, stating that "no such convention exists" based on the evidentiary record. (3) For many observers, the Conacher decision may seem unsurprising and solidly based on the existing jurisprudence dealing with constitutional conventions. A closer examination of the Federal Court's decision, however, reveals some disturbing logic and flaws in reasoning. Some of these problems are not peculiar to the judge in the case, but flow from the positions adopted by the Supreme Court of Canada in the patriation cases. (4) Conacher usefully highlights the flaws of orthodox thinking in Canadian legal circles about the nature of conventions. In particular, there are major problems with the three-part Jennings test adopted by the Supreme Court of Canada in the Patriation Reference and employed in Conacher. A fresh analysis of the issues in Conacher is needed to determine whether in fact a constitutional convention had arisen to support the fixed election date legislation.