Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates

Andrew Heard

Abstract


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.


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