Yeah, it's a crisis

The path out could be political, legal, or a combination

Political scientist Kelly Blidook produced a great video that gives a basic civics lesson about the current crisis in Newfoundland and Labrador.

If you haven’t seen it, take the time to do it now.  It is short.  It is very accessible.  Blidook has made his usual, worthwhile contribution to an important public issue. And even if you know the subject, you will get something out of it.

There is a problem, though, in the section titled “Recommendations” and in some of the Twitter comments about it.  This is a short explanation of my criticism of this specific aspect.

The first is the denial in some Twitter comments that this is a crisis.

Yeah, it is.

We are faced with questions about the validity of the election.  Not one or two seats.  The whole thing.

There’s no Canadian example for something like this.  There is a Newfoundland example from 1837.  The 1893 controverted election is close because it involved almost half the seats.  This could wind up looking like that.

But no matter what, the members of the House returned once Bruce Chaulk finishes with the ballots will be faced with an unprecedented challenge to their right – legal and political – to sit there.

The government formed out of that House will therefore be suspect.  It’s ability to do anything beyond some very basic stuff will be suspect until there is some solution to this fundamental defect.

That’s a crisis.

No good comes from saying it isn’t a crisis.

Yes, there are rules that will help people find a way through it but that is only a comfort.

It doesn’t stop this from being a crisis.

And it is a constitutional crisis of the first magnitude.

They don’t come worse than a challenge to the validity of an entire election and the government that comes out of it.

Fundamental crisis of the political system and the constitution.

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It is a crisis that we must address in the context of the *Newfoundland and Labrador* constitution as well.  This may in some respects be different from the experience in other parts of Canada and the constitutions of the individual provinces. The federal constitution and practices may be helpful but are not decisive.  It is different because our history is different and the constitution – the Terms of Union and the Letters Patent from before 1934 that it mentions – are different.

There are not a lot of people around who understand what the provincial constitution is or even recognize that it is exists.  Few if any of them live outside Newfoundland and Labrador. As a guide, if they quote Canadian examples a lot, they are not knowledgeable of the Newfoundland and Labrador constitution most likely. 

With that as a preface, let’s get to the core objection to Blidook’s recommendation and some other public comments by others, namely that the most important thing to do is freeze the current administration in place and change the election law.

One of the reasons why we need to be careful in dealing with this issue is that we do not know what the outcome of the vote is, yet.

Therefore, we cannot say that the best solution is to keep the current folks in power.

To know what to do next, we need to see the vote result.  That will guide the parties – in the political or legal sense – as they decide what comes next.  That’s how this will play out over the coming weeks and months:  the parties will decide by themselves or together what to do.

For example, if the election results in a tie or a Liberal minority, the other parties could always let the House meet and not challenge the outcome of the election. The opposition from the old House could let things carry on but run the government with a whip hand.  They could threaten to bring it down and cause an election, which would keep the Liberals from doing anything.

This could wind up like 1908 or 1971.  Furey would try to form an administration with the confidence of the House.  If he failed, constitutionally the Lieutenant Governor would be obliged to let someone else have a go at trying to form an administration.  It could be *anyone* who appears to have the confidence of the House.  And in the Newfoundland practice, which is what matters here, the Canadian six-month convention that was crucial in British Columbia recently would not apply.  In other words, if a minority staggered on for six months and then fell, the LG could still legitimately go to someone else to see if they could form a stable government.  We wouldn’t need an election.

That’s how the constitution of Newfoundland and Labrador becomes important, not the Canadian or other provincial constitutions apply.

Now that is still a crisis, mind you, since the cloud of invalidity will still hang over this and remain unresolved.

But it is a set of outcomes that could turn up as this crisis unfolds.

The parties might also wind up forming a coalition government if there is a close result. That’s a political way out of the crisis.  Newfoundland and Labrador is famous for its coalitions whether in the Great War or throughout the 1920s when politicians constantly make and remake coalitions.

That doesn’t actually diminish the crisis, either, in the sense that political instability would remain for some time.  But it is an alternative path that potentially could turn up.

So leaving the current bunch in place is not the only possible or even the optimum answer here.

Let’s turn to the next pressing matter and that will almost certainly be crucial in determining the politicians’ response to the election outcome.

It isn’t fixing the Elections Act, 1991.

Look at the timelines.

The government runs out of money on 31 July.

It will take about two months to remount an election, including prep time, the aftermath, and the 30 dayish campaign.

To get interim supply passed, the new House will need a couple of weeks after a remounted election to sort itself out procedurally. Counting backwards that puts us in the middle of May,

The courts will not be able to resolve the largest political legal action in Canadian history in the couple of months they have been the end of Chaulk’s fumbling and the Victoria Day weekend.  Not happening. Not realistic. Even if they get a push on, we could easily be looking at six months of billable hours for lawyers and weeks of court-room time.

This is the point where we have to bring up incomplete analysis of scenarios and sweeping generalizations like “courts are reluctant to deal with….”  Anyone who makes sweeping generalizations about what courts will and will not do in constitutional matters or things related to elections is talking through his or her hat.

Those sorts of sweeping generalizations are true, except for all the times they aren’t.

They are useless.

And analysis that leaves out politics is equally unhelpful. It is incomplete, like not having the other side of the Staff of Ra.

If there are compelling legal aspects to this crisis, like say the Section 3 Charter issues, that someone wants to lay in front of the courts, then the judges will fight over tackling it.  On Chaulk’s conduct of the election, they will happily apply the two-part test in s. 123 of the Elections Act, 1991.  They will not hesitate. Courts have done it before and will do it again.

To go back to the point, legal action and its worst-case remedy – another election - would not finish before the government runs out of money.  

So the most pressing question facing the politicians coming out of this election will be how to find money to keep schools, hospitals, jails and the like running with no valid legislature or with a legislature impaired or hindered by ongoing legal action.

The courts cannot resolve that.

That’s a political problem.

The courts will not resolve it.  Cannot resolve it.

And here, again, we have a range of potential options.  Some we have discussed.  One we haven’t is the prospect that Andrew Furey could go to the Lieutenant Governor and ask for a new proclamation and do the election over again. Another could be an agreement to meet, vote supply for six months and then adjourn, again until the court fight is done.

Those are options.

But changing the Elections Act, 1991 is not even close to the most important thing the next government will face.

Not by a long shot.

It may not even be a wise thing to do if we face an election very soon again after this mess.  Hard to imagine a better way to make things worse than changing the rules for running elections in the middle of a crisis.

Long before we turn attention to the Elections Act, we will have to get out of the crisis we are in now.

The path out of that crisis could be political, could be legal (in the courts), or it could be a combination of both.

We don’t know what the path will be.

But we do have to find it.