Timing of By-Elections and Elections: Not as Easy as You May Think
Right now, there is a vacancy in the Alberta Legislature. This vacancy arose when Laila Goodridge, the then MLA for Fort McMurray – Lac La Biche, resigned her seat on August 15, 2021 to run for Member of Parliament in the federal constituency of Fort McMurray – Cold Lake. She was successful in that bid. One might think that the triggering date for the calling of a by-election is the date of the Member’s resignation. However, when a Member resigns their seat, section 32 of the Legislative Assembly Act, the Clerk of the Assembly must send a warrant to the Chief Electoral Officer informing them of the vacancy. That section provides that the election for that constituency must be held within 6 months of the delivery of the warrant. So, it is the delivery of the Clerk’s warrant, not the date of resignation that is the triggering event. In short, the election must be called, not necessarily held, within 6 months after the warrant is sent from the Clerk of the Assembly to the Chief Electoral Officer.
As a former Clerk, I can tell you that every effort is made to have the warrant delivered to the Chief Electoral Officer the same day as the resignation to avoid confusion. In this case, the warrant must have been delivered on the same day as the resignation because the Elections Alberta website states that the by-election must be called by February 15, 2022.
If the by-election is to be held on a Monday, (the usual practice for elections in Alberta) it would have to be called no later than February 14, 2022, as that is the last Monday before the expiry of the 6-month time limit. Under the Election Act, the by-election occurs 28 days after the writ of election is issued. So, if the writ is issued on February 14th, the by-election would be held on March 14, 2022. As provided for in section 39 of the Election Act, every election is made by the passing of an order of the Lieutenant Governor in Council. That would be Cabinet by another name with the Lieutenant Governor signing the Order.
Some may find it interesting that section 32(3) of the Legislative Assembly Act states that orders for by-elections arising from vacancies “need not be made” if the vacancy occurs “during the last year of the legal life of the Assembly.” The simple question is “what is the last year of the legal life of the Assembly”. Simple questions do not always produce simple answers. Section 38.1 of the Election Act requires that elections be held in the 3-month period starting March 1 and ending May 31 in the “4th calendar year following polling day in the most recent general election.” Accordingly, Alberta does not have fixed election dates but election seasons. The last provincial election was April 16, 2019. Therefore, the next election must be held no later than May 31, 2023 and could be as early as March 1, 2023. The last year of the legal life of the Assembly would arguably start on March 1, 2022. I say “arguably” because section 1(4) of the Canadian Charter of Rights and Freedoms (“the Charter”) states that “…no House of Commons and no legislative assembly shall continue for longer than five years from the date for the return of writs at a general election of its members”.
To my knowledge, no court has yet ruled on whether the last year of a Legislature is the 4-year period under provincial election legislation or the five-year period under the Charter. In any event, the issue does not arise in the Fort McMurray-Lac La Biche by-election as the vacancy occurred before the last year of the Assembly. If the Government waits until February 1st to call the by-election, then it would take place in the last year of the Assembly (if you adopt the 4-year period) but the Legislative Assembly Act stipulates that the vacancy, not the election, occur in the last year of the legal life of the Assembly.
To add a different dimension to the subject of election timing, while elections must be called 4 years after the last provincial election, there is nothing to prevent the election from being called earlier. Section 38.1(1) of the Election Act specifically states that:
“Nothing in this section affects the powers of the Lieutenant Governor to dissolve the Legislature, in Her Majesty’s name, when the Lieutenant Governor sees fit”.
This section of the Act has been used to justify the calling of provincial elections prior to the 4-year mark. One example was in 2015. The previous provincial election was held on April 7, 2012 (remember Alison Redford?). The late Premier Prentice sought dissolution of the Legislature on April 7 for a May 5, 2015, election. As a sidenote, dissolutions of Legislatures or Parliaments are not declared by the Government or the Assembly; they must be granted by the Lieutenant Governor provincially or the Governor General federally. This power to dissolve is one the prerogatives of the Offices.
The early election call was challenged in court. In Engel v Prentice, 2020 ABCA 462, Engel and Rigney had challenged the calling of the election on the grounds that the fixed election period prevented the Premier from asking the Lieutenant Governor to dissolve the Legislature and order an early election. They also argued that their rights under section 3 of the Charter were violated. That section provides that “every citizen of Canada has the right to vote in an election of members of the House of Commons or a legislative assembly and to be qualified for membership therein.” The Court of Queen’s Bench held that the dissolution of the Legislature by the Lieutenant Governor and the resulting “early” election did not violate the Election Act and that there was no violation of section 3 rights under the Charter. The Court of Appeal upheld that decision and leave to appeal to the Supreme Court of Canada was denied.
We will have to wait to see if a Government in Canada with fixed election dates or seasons wanted to go beyond the 4-year limit.
Election timing is not as straight forward as one might think. In this case, there will be a by-election for Fort McMurray-Lac La Biche sooner or later.
