Friday, October 16, 2015

Inside Politics from 'E-day' to 'Shy Tories'

     ‘Inside baseball’, is an expression that describes something that is so detailed in sports that only true aficionados would understand, see here.  In American politics, a comparable expression is 'inside the Beltway', named for the highway that circles Washington.  Similarly, some Canadian pundits describe Ottawa centric issues as 'inside the Queensway'.

     The fact is, like sports commentators, political analysts often use a range of unfamiliar language. Below I identify and describe some of these terms and phrases, that are ‘inside politics’, which people will likely hear in the next few days before the 2015 Canadian National election.
     Election or 'E'-day, on Monday October 19, will be the final showdown in a long political season.  Broad details of the campaign, like party platforms, major debates and advertising are all part of what is sometimes called the ‘air campaign’. On E-day, all parties shift focus from the ‘air’ to play on the ‘ground’.

     The ‘ground’ battle in politics largely involves the employment of as many volunteers as possible to ‘pull’ or ‘get out’ the vote.  That is, each political party makes a maximum effort to encourage its own identified supporters to mark their ballots.

      The increased likelihood that supporters will vote is called ‘vote efficiency’.  Though ideology plays less of a role in party affiliations in Canada, left-leaning New Democrats have traditionally been viewed as more committed political activists, with a very efficient vote because they are better at turning out their supporters on E-day. In modern times, the same high commitment may be true of some Canadian Conservative voters, whose core base of supporters are characterized as both strongly loyal and motivated, see here.

       However, most political wisdom has it that ‘people do not vote for an opposition party, they vote against a government’.  Canada’s 42nd election appears unusual in that there has been a large increase in the number of people who have voted before the official E-day, in advance polls held last weekend, see here.  If the high turnout in advance polls reflects increased participation after E-day on Monday, and the accepted wisdom is sound, this may presage a change in government.

      Canada has a ‘first past the post’ electoral system, see here.  No matter how many candidates are in a specific riding, the one who gets to the ‘finish line’ of the most votes, will win.  In a campaign with 3 or more candidates, this means that someone can win with a ‘plurality’, or less than a majority, of the votes. In fact, pluralities are more the rule than the exception in Canada.

      For the last 100 years there have been a host of 3rd parties that have split the vote, making actual majority support difficult for anyone in Canada at the Federal level.[1]  In 2015, this means that there are even some ridings with four-way races, where a successful candidate may only need 25%, or less, of the votes cast, see here.

       It's sometimes said that the only poll that matters is the one on E-day. One phenomena to watch for in 2015, apparent in other elections, may be what has been described as the ‘shy Tory’ vote, see here  That is, advance polling has repeatedly understated the level of actual support a governing Conservative party may garner on E-day, since supporters may be reluctant or ‘shy’ to admit their voting intentions to pollsters.

      If this 'shy' voter factor is real, it’s not clear that it applies only with respect to conservative voters.  For example, advance polls in one recent Canadian provincial election also appeared to understate support for the Liberal incumbents, who went on to win a 'stunning' victory, see here.  Moreover, in the face of sustained advertising targeting Canada's Liberal Leader, see here, its possible that people might also be 'shy' about admitting their support, but will vote for him anyways.

      In any event, the end of any political campaign is something like the playoffs in sports. While sportscasters and political pundits may similarly employ ‘inside’ language to describe things, 2015’s Federal election also features a more direct overlap.

     Canada’s major league baseball team, the Toronto Blue Jays, have a scheduled playoff game of their own on October 19, when they will play in the 3rd game of the American League East Championship series.  Even though there is a possibility that divided political views will result in a minority Parliament, it seems likely a strong majority of Canadians will, at least, be supporting the Blue Jays on E-day - Go Blue Jays!. 
Update:  On Monday October 19, 2015, the Conservative Party lost its bid for re-election to Justin Trudeau's Liberals, who won a majority victory.  Turnout for the election approached 68% of registered voters, the highest in 20 years at the Federal level in Canada. The Blue Jays, playing at the same time, beat the Kansas City Royals 11 - 8 in the American League Championship series.

 [1] Since the early 20th century this includes, inter alia, Progressives, the CCF party, the Reconstruction Party, Social Credit, New Democrats, Reform Party, Bloc Quebecois and Green Party.

Friday, October 2, 2015

Who Gets Stornoway If There's a Tie for Second Place?

The big electoral prize in any election is always the capacity to form government. However, the closeness of Canada's 2015 federal campaign between Conservatives, Liberals and New Democrats also raises an unlikely, but real possibility, of a tie in the number of seats won by two second-place parties. 

Opposition is an important consolation for an electoral runner-up in Canada's Parliamentary system.  Official status brings both prestige and profile as a 'government in waiting', and the very real benefits of money and resources for administration and research.  Compared to conventions for determining the winner though, there are only a few practices in place to choose who is entitled to take the residence at Stornoway, the official home in Ottawa of the Leader of 'Her Majesty's Loyal Opposition'.[1] 

Based on the limited precedents,[2] and the uncertainty of outcomes in the current 3-way election, there are a few possible scenarios in the event of a second place tie.

Scenario 1

The governing Conservatives win and Liberal and New Democrats tie for second place in the number of seats. 

Unlike concerns about who would form government, determined by the Governor-General, Opposition status is determined by the Speaker of the House of Commons.  The key factor in making such a decision in the event of a tie would likely be incumbency.[3] 

That is, the party that served in the Opposition role in the previous Session of Parliament would likely be awarded Official Opposition status if the second place parties had the same number of seats.  In this hypothetical, this would mean the current Opposition, led by Thomas Mulcair's New Democrats, would retain their official status

Scenario 2

Current Opposition, the New Democratic Party, wins election and the Conservatives and Liberals tie for second. 

In this case the incumbency principle would not apply.  Though there appears to be little precedent, I would argue that a reasonable corollary to the incumbency principle would be to award Official Opposition status to the party with the higher standing in the last Parliament.  In this hypothetical, as the former government, the Conservatives would consequently win the right to occupy Stornoway.

Scenario 3

Justin Trudeau’s Liberals win and Conservatives and New Democrats tie for second in the number of seats. 

What would happen in this situation seems uncertain.  As the incumbent Opposition, New Democrats would likely argue that they should form Opposition.  However, the Conservatives might well have an argument that, as the defeated government, their status in the previous session meant that the incumbency principle should be superseded. 

In this case, few precedents and no clear rules might mean other considerations are taken into account.  For example, the Speaker might well apply other minor factors to help determine the matter, such as who amongst the second place parties had the higher share of the popular vote.[4]

To be fair, all 3 scenarios described above appear improbable.  However, it’s worth remembering that unusual things do sometimes occur in Canadian politics.  Who would have predicted in advance, for example, the unexpected and seemingly unprecedented request by Prime Minister Harper for prorogation in 2008, in the face of the prospect that he would be defeated in the House of Commons within a few weeks of the previous election?   

In a similar unlikely, but not impossible circumstance, that there was a tie for second place in the 2015 election, who would form the Official Opposition and be entitled to the keys to Stornoway, is not entirely clear.

[1] Usually the party that wins the second highest number of seats in Parliament. For a good overview see Stewart Hyson, “Determining the Official Opposition in New Brunswick and the House of Commons”, (1996) Canadian Parliamentary Review, Vol 19 No 3.  A
[2] Though not exactly factually consistent with the scenarios set out below since ties occurred during the legislative session, rather than immediately following an election, the two modern precedents occurred in New Brunswick in 1994, see Speaker’s Ruling “Tie or Equal Number of Members in Two Opposition Parties” Journals of the Legislative Assembly of the Province of New Brunswick, Third Session of the Fifty-second Legislative Assembly, December 16, 1994, pp 330-335, and; briefly at the Federal level in 1993, ibid.
[3] Supra note 1.
[4] In 1983 the Alberta NDP was granted opposition status in part on the basis of its popular vote.  Another possible factor that might apply immediately following an election might include party status, if there was an organized party as compared to a number of independents

Friday, September 4, 2015

The Labour Day Tradition in Canada

     Labour Day is a milestone in Canadian life.[1]  For many in Canada, true summer begins early on the Victoria Day long weekend in May, and ends on the Labour Day weekend.  Like the USA, Canada celebrates Labour Day on the 1st Monday in September.  Though the holiday is widespread, many other countries celebrate it at different times, most frequently on May 1. 

     For many Canadians, Labour Day is the end of holidays and one last chance for a swim at the lake, to enjoy a family BBQ in the waning summer sun, or to watch one of Canadian footballs' classic regional rivalries, see here. For me, as a suburban Toronto kid, the holiday weekend often meant going to the carnival, agricultural fair and international air show held at the Canadian National Exhibition, see here.

     In 2015, Labour Day also marks the midway point of Canada's 42nd National Election, see my previous post on holidays and elections, here .  Of course, Labour Day has always been closely connected to both politics and law in Canada.  

     Given the antipathy of many modern conservatives towards labour unions, some might be surprised to hear that it was Tory Prime Minister John Thompson who declared the day a National Holiday in 1894.  However, the close connection between organized labour and Conservatives also extends back, at least, to Canada's 1st PM, Conservative John A. Macdonald.[2]

     In 1872, Macdonald's chief political rival was leading anti-union efforts to repress a printer’s strike that was hurting his own newspaper business.  With an election in the offing, Macdonald came out in support of the unions, whose leaders had been jailed under Canada's antiquated criminal laws.

      Macdonald saw his chance to gain "a little cheap political capital",[3] and promptly passed the Trade Union Act in June 1872.[4]  For the 1st time in Canadian history, participation in a labour union was no longer a criminal act. PM Macdonald cheerfully declared to crowds that "as a maker of cabinets, he was himself an industrial worker", and consequently won broad labour support.[5]

     Of course, the origins of Labour Day are only one part of a long story that stretches to the present day.  Like millions of other Canadians on the long weekend, I will probably enjoy a little family time, watch for the 1st signs that the leaves have started to turn their Fall colours, and enjoy the last of the good weather. But I will also give a thought to the many who laboured over decades, to improve working conditions, and helped to build modern Canada.

[1] For example, see Joanna Dawson, “The First Labour Day” Canada’s History,, retrieved September 4, 2015,
[2] See Mark Chartrand, “The First Canadian Trade Union Legislation: An Historical Perspective” (1984) Ottawa LR 16 267.
[3] See Richard Gwyn, Nation Maker Sir John A Macdonald: His Life, Our Times, (Toronto: Random House, 2011) at 196, quoting Macdonald's political rival ,George Brown.
[4] 35 Vict, c. 30.  Also see An Act to amend Criminal Law relative to Violence, Threats and Molestation, 35 Vict, c 31.
[5] Supra note 3.

Saturday, August 29, 2015

Incumbents Usually Lose Holiday Elections

I spent Sunday morning of the August long weekend watching TV coverage of the call for Canada's 2015 federal election.  The current campaign has been run through the typical Canadian summer holiday in August.  At 11 weeks, the unusually long campaign means that it will also continue over the Labour day holiday in September, and through Canadian Thanksgiving in early October.

In some political circles, the received wisdom is that people don't follow political campaigns during the summer, or over other significant holiday periods.  A quick look back at past federal elections though, suggests that the theory that Canadians are inattentive to politics during their vacations may be flawed. 

In fact, Canadians have generally not been kind to those who have held elections during holidays. For example, at the federal level, you have to go back to 1953, to Louis St. Laurent's Liberals, to find a successful summer campaign by an incumbent.* There is a similar trend for campaigns that have extended over the week between Christmas and New Year's.  For example, the election of 1980 occurred partly over the Christmas holiday of 1979 and led to the defeat of Prime Minister Clark's Progressive Conservative government.

In total, there have been 14 Canadian national elections that were held in whole, or in part, over traditional holiday periods since 1867.  In these campaigns the government has lost 9, won 4 and was returned with 1 minority (1972).  More recently, 2006 was a loss for the governing Liberals (over Christmas), while partial summer campaigns in 1993 and 1984 both saw incumbents routed at the polls. 

Some think that holidays mean that Canadians are too busy with travel, family and friends to turn their attention to the political scene.  However, the historical pattern of loss for incumbents suggests that explanation is flawed. Canadians may well tune out official campaigns during holiday periods.  But, perhaps instead they engage in informal (and maybe more civil) discussion about policy issues, within their immediate social circles.  If this is true then it seems that, as an historical matter, a holiday campaign has often proven a chance for electors to come to a collective decision that leads to change.

No one knows what will happen on election day on October 19. But if the historical trend holds, messing with the Canadian traditional summer vacation and other holidays in 2015 could spell trouble for the governing Conservatives.

Update:  On Monday October 19, 2015, the governing Conservative party lost Canada's 42nd election to Justin Trudeau's Liberal party, which won a majority government.  *Note: The 1974 campaign ended on July 8, so was a partial summer campaign that ended in a majority victory for incumbent PM Pierre Trudeau.

Saturday, August 22, 2015

Lawyers, Political Scandal & Canada's 'Watergate'

The presence of so many lawyers at the heart of political scandals is neither accident nor coincidence… they have operated at a level in the political culture where the attitude to conflicts of interest can best be described as ‘don’t get caught’.[1]

The current Senate scandal in Canada has implicated senior officials in Prime Minister Stephen Harper's office, some of whom are also members of the Bar. The status of legal professionals as ‘officers of the court’ might incline people to think that they are less likely to become involved in political skullduggery. Yet, as suggested above, the involvement of lawyers in public scandals is nothing new. 

Canada’s 1st political controversy occurred early in its history.  In 1873, there was an apparent break-in and theft of documents at the Montreal offices of Conservative lawyer and future Prime Minister J.J. Abbott.  The documents stolen, which were released publicly, implicated a number of high ranking politicians, including ‘Father of Confederation’ G. E. Cartier and Prime Minister Macdonald, both of whom were lawyers. 
Amongst other things, what became known as the ‘Pacific Scandal’ revealed widespread graft in election financing, reaching to the highest levels of the Conservative Party.  The imbroglio ultimately resulted in the fall of Macdonald’s Conservative government in 1873[2].
Interestingly, the Pacific Scandal bears some similarity to the most famous modern American scandal, which occurred 100 years later.  The events surrounding ‘Watergate’ in the 1970s also involved allegations of a politically motivated criminal burglary.  President Nixon and the Prime Minister Macdonald were, of course, both lawyers, but so were many others implicated in each scheme.  Each scandal directly connected the leaders of the United States and Canada to highly unethical behaviour. 
One difference between the two events is that while both men lost office, Macdonald was defeated in an election, while Nixon resigned from office.  Another difference was that while Nixon resigned as a member of the California Bar, Macdonald remained a lawyer in good standing throughout his entire political career.

In the end, the effects of the past Canadian scandal had minimal long-term impact.  It’s true that the Pacific Scandal was a major factor in a later Liberal victory over the Conservatives.  By 1878 however, Macdonald was back in power, and remained Prime Minister of Canada until his death in 1892.  For its part, the Conservative Party still managed to hang on until another of Canada's great lawyer-politicians, Wilfred Laurier, defeated them in the election of 1896.

Some have described the legal profession as a kind of 'fifth estate’ that protects democracy by upholding the rule of law.
[3]  Many, if not most lawyers, play this role by providing professional representation to clients involved in legal proceedings. At a broader level though, there has long been a close connection between the Bar in Canada and politics.  The record of lawyer involvement in scandal, illustrated above, but in many other instances as well, suggests their contribution to our political culture may be sometimes be mixed with less democratic behaviours and values.    

[1] Carol Wilton, “Introduction: Beyond the Law – Lawyers and Business in Canada, 1830 to 1930”, Essays in the History of Canadian Law Volume IV (Toronto: U of T Press for Osgoode Society, 1996) at 28.
[2] Richard Gwyn, Nation Maker, Sir John A Macdonald: His Life, Our Times Volume Two 1867 – 1891(Toronto: Random House, 2011) at 244 – 258.
[3] Peter Russell, The Judiciary in Canada: The Third Branch of Government, (Toronto: McGraw-Hill Ryerson, 1987) at 38.

Saturday, August 15, 2015

Similarities Between Canada's 1945 Election and 2015

History has a funny way of repeating itself.  A recent news article highlighted several similarities between the 2015 national election in Canada and the one in 1993, here:

CBC Comparison 2015 to 1993

But there is a least 1 other past campaign, that also has several curious similarities with the 42nd national election.

Canada's 20th federal contest took place in June of 1945.  A national Gallup poll in 1943, had shown that the Co-operative Commonwealth Federation (CCF), a party of the left, was leading in a 3-way race against the governing Liberals and the Progressive Conservatives (PC).  By comparison in 2015, the successor to the CCF party, the New Democratic Party (NDP), has also been leading their 2 rivals in the polls for several months, see here:

CBC Poll Tracker Mid August 2015

The CCF's surge in 1945 was likely part of  a wave of support for the Party, following their surprise success in a provincial contest in Saskatchewan in 1943.  Today's NDP has also been energized by its victory, last spring, in what many consider the home province of modern Canadian conservatism, in Alberta, see my previous comment on that election here:

Landslides in Alberta's Provincial Politics

In Canada's 20th electoral contest, the longstanding incumbent, Prime Minister King (Liberal),    faced 2 new opposition leaders in John Bracken (PC) and MJ Coldwell (CCF), neither of whom had led their respective parties in a national election.  Similarly, today Harper, in his 10th year as Prime Minister, faces two new opposition leaders in Liberal Justin Trudeau, and the NDP's Thomas Mulcair, both in their 1st national campaigns. 

At least some of the election issues, like international security, are also common to both 1945 and 2015.  With the war winding down in 1945, King demanded a new majority mandate, saying without it: "We would have confusion to deal with at a time when the world will be in a very disturbed not over".  Audio of King's campaign kickoff speech is available here:

Prime Minister King Starts 1945 campaign.
Interestingly, just as King raised international concerns in the wake of World War II, so too did Prime Minister Harper also raise national security issues as one election issue in his own campaign kickoff on August 2, 2015, see a summary in this news item here:

Harper Says Other Leaders Can't Be Trusted With Country's Future

Today the constitutional role of Canada's Senate is a campaign issue.  The NDP has taken the position that the Senate, a non-elected upper Chamber in Canada, should be abolished.  One of the platform planks of the upstart CCF party in 1945 was also Senate abolition. 

Finally, in 2015 the Conservatives rolled out a new program, the Universal Child Care Benefit (UCCB), which saw many families receiving a cheque from the government last July.  In 1945, one of the major platform planks of King's Liberals was the establishment of a similar program, the "Family Allowance", which also promised a subsidy for families with children.

Studying Canadian politics and law, I am always struck by how often similar issues seem to arise over time.  What is old, it seems, may be new again.

In the 20th election, King's demand for a new mandate resulted in his re-election, but only with a minority government, which required the support of several independent Members of Parliament.  Given how close the polls show today's election to be, its impossible to say with any certitude what will happen on election day this October. Only time will tell if the historical synchronicity between the 1945 and 2015 will continue.

Sunday, August 9, 2015

Landslides in Alberta's Provincial Politics

A recent news report got me thinking about my favourite History professor from Queen's University at Kingston Ontario, who sadly died much too early. In the 1980s I was lucky to study Canadian political history there, with the late great Don Swainson. I wrote a couple of papers for him studying Alberta's tendency to elect consecutive landslide governments.

First the Liberals, then the United Farmers, Social Credit, then the Progressive Conservatives, each time virtually wiping out the opposition. I predicted at the time, wrongly, that the cycle would continue and that the government would change dramatically. Sometimes individuals change history and I had no idea, like many others, of the effect that Ralph Klein's premiership would have on the province.

Since then though, I have watched to see if the trend might re-assert itself. It seemed a few years ago that, in the great Western tradition, a new political party might do just that, but the PC'S were able to pull one out. Now, looking at reports of polls in the news, it sounds like that change that has been typical of Alberta politics historically may be in the offing. Its a 3 way race in their provincial election between the new kids on the block the Wild Rose, the PC'S and the NDP. In politics anything can happen. But if I had to guess, there is about to be that once in a generation, or so, change that I pictured many years ago. As I write this I can see Don smiling, and hear him saying, "we will see". Indeed.

Postscript: Comments created April 23th, 2015. The Province of Alberta's 29th general election occurred on May 5, 2015 when Rachel Notley's New Democratic Party ended more than 4 decades of PC party reign, with a majority victory. The recent election date of May 5, 2015 can be added to a similar list of watershed ALTA elections: July 18, 1921 (United Farmers), August 22, 1935 (Social Credit) and August 30 1971 (PCs). 25 years later than I predicted, but even a broken clock is right twice a day!