Only one year after that legislation was passed however, when the Prime Minister was two years into his term of office, he decided that Parliament had become dysfunctional. He asked the Governor General to dissolve Parliament so that an election could be held. His request was granted. Moreover, the validity of the dissolution of Parliament was upheld by the Federal Court of Canada in a November 27, 2008 ruling. A key consideration was a clause in the fixed term legislation that states “nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.”
This clause, I would argue, was included in the fixed term legislation to ensure that we could continue to observe the principle of responsible government that is fundamental to our parliamentary system of government. This principle holds that a government is responsible to the House of Commons and can only govern as long as it is supported by a majority of the members of the House. If it fails to receive that support, then it is required to step aside so that an election can be held. [The only exception would be if another party in the House claimed that it had sufficient support to form a government. In such a case, it might be given the opportunity, especially if there had already been an election fairly recently.] To pass fixed term legislation without providing for the Governor General’s discretion with respect to dissolving Parliament would effectively terminate responsible government in Canada and allow a government to stay in office for its full four year term even if the House no longer had any confidence in the government.
But that is the only reason to include this clause in fixed term legislation. If such legislation is to make any sense, it must apply except in those rare circumstances in which a House of Commons loses confidence in the government. If we instead interpret the clause to mean that a Governor General must call an election whenever a Prime Minister wants one, regardless of the circumstances, the whole notion of a fixed term is absolutely meaningless. Indeed, when introducing the fixed term legislation, the government explained that it was intended to prevent a Prime Minister from triggering an election at a time that might be seen as advantageous and to ensure all political parties a level playing field.
Calling an early election would violate the fixed term legislation
With a comfortable majority in the House of Commons, the Conservative Government is not going to lose a vote of confidence before the next election (unless through some contrived manoeuvre that is hard to imagine). In the absence of a defeat in the House, the Prime Minister has no grounds for requesting dissolution of Parliament, nor should any such request be granted, I would argue. If, as many pundits seem to expect, the Prime Minister does succeed in triggering an early election, it is absolutely clear that he will have violated the spirit, if not the letter, of his own legislation. He will have abandoned the fixed term for a date deemed to be more advantageous – even though it was to avoid such a tactic that the fixed term was introduced. Any such action by the Prime Minister, by any Prime Minister, should be further challenged in the courts and should be rejected in the court of public opinion.