It didn’t take United Conservative Party Leader and premier designate Danielle Smith long to change her story about why there will be no by-election in the Calgary-Elbow riding, which has been without an MLA for two months.

Former Calgary-Elbow UCP MLA and Kenney Government cabinet minister Doug Schweitzer (Photo: David J. Climenhaga).

On Friday, the province’s premier designate told a CBC interviewer there would be no by-election in the Calgary riding previously represented by former cabinet minister Doug Schweitzer because it would cost too much.

This was obviously nonsense, but not really a surprise. Ms. Smith is well known for glibly confident explanations that are only tenuously connected to the facts.

Yesterday morning, Ms. Smith offered her new story at a news conference with Brooks-Medicine Hat MLA Michaela Frey, who has agreed to step aside to let the new UCP leader run in her rural riding.

Ms. Smith, who is expected to be sworn in as premier on Tuesday, knowingly told reporters that “there has been a convention that when a leader is chosen who does not have a seat there’s an expectation that she will seek a seat at an early opportunity, so I think the exception can be made for this by-election, but there is also a convention as well that if you’re within a year of having a general election that you don’t need to call by-elections.”

Most of this isn’t quite right, but the key message is closer to the facts than her statement Friday.

Rob Anderson, Ms. Smith’s UCP leadership campaign manager and soon-to-be director of the Premier’s Office (Photo: David J. Climenhaga).

There is a constitutional convention that leaders without a seat in the Legislature must seek and win one within a reasonable period of time, generally considered to be three or four months.

However, calling a by-election now to accommodate that convention would not require an exception to any Parliamentary rule or practice, as she suggested. 

In addition, there is a law in Alberta that a by-election to fill a vacancy like the one left by Mr. Schweitzer must take place within six months of the member’s resignation

However, as former Clerk of the Legislature Rob Reynolds has explained, 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.’” (Emphasis added.)

Note the wording. The by-election in Calgary-Elbow need not be called, but nevertheless can be. 

Former Clerk of the Alberta Legislature Rob Reynolds (Photo: David J. Climenhaga).

The drafters of the legislation clearly contemplated circumstances in which it would be appropriate to call a by-election despite there being less than a full year until the next general election. 

For example, one such circumstance would be if a riding had already been without an MLA for two months and if the general election were not scheduled for an additional eight, by which time the riding would have been without representation in the Legislature for nearly a year. 

In addition, if another by-election were also planned on an earlier date, given the standard practice throughout Canada of holding multiple by-elections on the same day, the already compelling case would become overwhelming.

These are, of course, precisely the circumstances in which the voters of Calgary-Elbow find themselves and which Ms. Smith is determined to ignore.

The reason Ms. Smith intends to avoid a by-election that her party might not win – especially now that she has insulted the voters of Calgary-Elbow – is transparent.

Historically, most Canadian governments facing this situation, including recent Conservative governments, would have suffered the loss in one location to get their leader elected in another. 

University of Calgary law professor Martin Z. Olszynski (Photo: University of Calgary).

Voters in Calgary-Elbow have every right to be furious with their treatment by the United Conservative Party and its new leadership. 

As an aside, Ms. Smith’s claim there’s a parliamentary convention to have adjacent MLAs take care of the issues in neighbouring ridings is preposterous, for the obvious reason that adjacent ridings are frequently represented by politicians from different parties. 

This is not the only Danielle Smith tall tale that changed within hours of her election as leader of the UCP in a close vote by party members. 

As Rob Anderson, the influential chair of Ms. Smith’s campaign who will now take over as director of the Premier’s Office, admitted to the CBC in an interview published yesterday, her much-touted though never seen “Sovereignty Act” won’t attempt to let Alberta disregard Supreme Court rulings after all.

He should know. He’s one of the three authors of the “Free Alberta Strategy” whence the Sovereignty Act scheme springs. They’re probably still rewriting drafts in anticipation of the government’s lawyers getting their hands on it. 

Perhaps Mr. Anderson has just realized that if Alberta is going to empower itself to ignore the Supreme Court, British Columbia might do the same thing with some interesting impacts on Western Canada’s pipeline politics. 

University of Calgary constitutional lawyer Martin Z. Olszynski observed yesterday on social media in a message to Ms. Smith’s supporters in the UCP: “What was that, less than 48 hrs? … you got duped. We tried to tell you — to warn you — that it wouldn’t fly, that she was exploiting you. Now she’s premier & y’all are back to gnashing your teeth.”

I suppose we can expect another flip-flop soon on Ms. Smith’s charmingly mistaken belief that you can re-litigate cases that have been decided by the Supreme Court of Canada if you believe circumstances have changed. 

Nope. Res judicata. Here endeth the lesson.

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32 Comments

  1. Yes, the story seems to keep changing – not a good sign that those making the argument feel they have a strong case. The cost argument was never a strong one as by elections are not that expensive compared to general elections. Another thing to consider is if two (or more) are held at the same time there are probably some administrative savings by holding them together at the same time. This is not an uncommon practice in the past, to choose a Conservative example which Smith herself should well remember, when Prentice became Premier there were some other by elections held at the same time. Of course, despite all her self serving justifications, I suspect that if Calgary Elbow was likely to vote UCP again, that by election would also be held promptly with no debate or excuses.

    Also, as urban ridings tend to have higher populations, even if there is a nearby riding with an MLA of similar political affiliation, their plate might already be fairly full and it may be harder for them to look after more people. Obviously there is also not a strong incentive for an MLA to focus on people who will not vote in his or her area in the next election, so you would have to be a fairly altruistic politician to do so. So it is likely the people of Calgary Elbow will be somewhat ignored for nine months (or maybe even for longer if Smith also later flips her position and delays the fixed election date due to lacklustre polls).

    I suspect Alberta may become a unique case of ASA causing headaches, not fixing them. If the Smith team’s inclination is now to water their proposal down to ensure it is constitutional, I suspect some of its stronger supporters, she sold this to will be disappointed. Of course, this wouldn’t be the first time Smith disappointed her own supporters. Guys, get used to all this again, as she said she’s back. She might be more bitter, but not better.

  2. Considering how Danielle Straitjacket’s campaign website was scrubbed of anything resembling anything to do with the so called Alberta Sovereignty Act (AKA. Alberta Karen Whining) it maybe that Smith is looking at things in a more pragmatic way?

    I recall Turkish president Recep Tayyip Erdoğan comment on democracy as “Like riding a bus; once you get to your stop, you get off.” and believe that Smith has the same notion in mind.

    So, Smith, leading up to the next election, decides to undo everything Jason Kenney did when he first became premier and the so called ‘Summer of Repeal’. Smith decides to own the NDP by coopting their entire platform and then some just to make everyone happy. There will be restored funding for everything, health care workers will be respected, trust in public education restored, and all the nonsense she spread during her campaign that appealed to the lunatics will be wiped away. Smith campaigned from the right, but intends to govern from the left.

    This is all well and good, but how long will it last? Until the next election, when Smith bags herself a win and turns the crazy taps back on again.

  3. The slim amount of people who voted for Danielle Smith in the UCP leadership race, clearly lack any understanding of how politics functions in Canada, much like Danielle Smith lacks understanding of the matter. They basically were fooled. Danielle Smith is basically full of hot air, and has as much power as a dead alkaline battery. Come to think of it, Danielle Smith lacks understanding in different matters. Danielle Smith isn’t a lawyer, isn’t an expert in medicine, isn’t an expert on economic matters, and knows nothing about the Constitution.
    She won’t run in the riding where Doug Schweitzer was an MLA, because she knows she’ll get defeated. In the meantime, Danielle Smith will make life in Alberta as miserable as possible for Albertans, in the next eight months, because of her other bad policies that she will want to enact. Hopefully, after the next provincial election in Alberta, she’ll be thrown out, and the UCP will go along with her. Rob Anderson, as I recall was like a ping pong ball, going back and forth, with his floor crossing, from the Alberta PCs, to the Wildrose, and back to the Alberta PCs. Once Danielle Smith’s supporters realize they’ve been had, and were sold a bunch of misinformation, maybe they will smarten up? Or maybe they won’t, because they clearly don’t remember what Danielle Smith did, when she was leader of the Wildrose. If anyone in the riding where Danielle Smith was running, was smart, they wouldn’t elect her. If Albertans were smart, they wouldn’t give the UCP a second chance, because the UCP has done enough damage, in under four years.

  4. As Christy Clark in BC found, she wasn’t electable in Vancouver, and had to run in a safe seat which resulted in more than one costly by election after Ben Stewart stood aside, and one more for Ben to get re-elected after Christy stepped down. Ben was rewarded with a government stint in China while out of his safe seat in the Okanagan.

    1. I would like to see an end to the practice of no name politicians being bribed/coerced into stepping aside so that their “betters” can have their seat. The practice is corrupt, wasteful and undemocratic. Elections are expensive, we shouldn’t spend all that money on them then ignore the results.

      1. Neil Lore: I’d like to know what kind of dead weight position Michaela Frey will get from Danielle Smith, in exchange for giving up her seat as an MLA. It will be some very well paying position that has no actual value, which is commonplace in the UCP. I don’t know how long Michaela Frey has been a politician, to qualify for any political pension. It has to be about 7 years, as I recall.

  5. “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.’” ”

    David, in a recent column you made the very salient point that the Act is unclear about what determines the end of the legal life of the assembly – is it the four year period required by the fixed election date legislation, or the five year period that is required by the legislation in place before the passing of the fixed election date? Presumably this would be the federal Alberta Act.

    Where I am coming from is a comment a Danielle Smith representative made during CBC’s phone-in show, early in the leadership race. The fellow suggested if Danielle Smith won the leadership it would probably be prudent for her to postpone the next general election to give Albertans a better chance to see what Danielle Smith is all about. To do so would, of course, require Ms. Smith’s government to repeal the fixed election legislation, and I am wondering if she could do so given that it would push the legal life of the assembly beyond the one year window required by the Legislative Assembly Act.

    1. Bob: This is an extremely important point, as was the point argued by Middle Dave. I think my response to Middle Dave might apply to your comment as well – that someone should seek a writ of mandamus to force the government to hold a by-election or reveal it is in contempt of the rule of law. DJC

      1. Once the fixed date election is repealed by the UCP — and it most surely will be — that pretty much takes any and all bets off the table for when there need to be byelections to fill the vacated seats. Indeed, with the appropriate legislation in place, byelections may occur at the pleasure of the premier and only in specific ridings. It’s very likely a rural seat will be filled before an urban one for entirely partisan reasons. If a seat in Edmonton becomes vacated, a byelection will be called when the premier bloody well feels like one. Such a measure could be tailored to serve the interest of ensuring political peace, making sure that rural voters don’t get all up in their FreeDUMB racket. After all, they not only have guns, but they are inclined to use them.

  6. This flavor of Kenney is the worst flavor of Kenney.

    The Twitterverse asks when the folks in Calgary Elbow going to organize a truck convoy to protest this injustice and their right to representation in this democracy.

    Danielle Smith might not believe in LIFO (last in, first out), but she might find out what it means.

  7. How can she expect to be taken seriously? I’m sure that the rest of Canada won’t miss the message that Ms Smith is rarin’ to take on Ottawa; Calgary-Elbow, not so much.

  8. Hello DJC, not to get into the minutiae of constitutional law, but, disregarding the Election Statutes Amendment Act, 2021 (No. 2), which while passed by a simple majority, can also be extended, changed, or abolished by a simple majority, sets the fixed date of the next provincial election on the last Monday in May in the fourth calendar year after a general election (May 29, 2023 in this case), the actual constitutional term limit (Section 50 of the Constitution Act, 1867 and section 4 of the Canadian Charter of Rights and Freedoms) is 5 years from the date of the previous general election. With this fact, we are well outside the 12 month period that does not require a by-election to be called. With the previous provincial election held April 16, 2019, that means as per the Constitution (to be clear the Canadian one, to my knowledge at this time we are still using that as the basis for law in Canada, aspirations of our freedom loving brethren notwithstanding – speaking of – Alberta does not have the authority to override the constitutional 5-year limit as the notwithstanding clause does not apply to Sections 3, 4 or 5 of the Charter which govern said processes), so Alberta is in fact 18 months away from being Constitutionally obligated to hold an election (April 2024). Thus a by-election should be held.

    Enjoy your turkey day and keep up the great work.

    1. Thanks, Middle Dave, for this very useful comment. Rob Reynolds touched on this point too in his essay (slightly out of date as it references the previous version of the Elections Act, with its “fixed election period”) which I linked to from my post. I’m no lawyer, but it sounds to me as if there might be grounds for someone from Calgary-Elbow to seek a writ of mandamus to command the government to hold a by-election in Calgary-Elbow. If nothing else, this would usefully keep this issue front of mind in Alberta and perhaps illustrate once again Danielle Smith’s respect for the rule of law, such as it may be. DJC

      1. Of course, if such a writ were to drop, given the present mindset of the UCP, they may just enact such legislation telling that writ to GTFO. Enforcing the legislation also believes in upholding the spirit of the legislation; however, I suspect that Danielle Straitjacket and the UCP are inclined to just “tut tut” such claims before blaming Trudeau for something.

        Put Kaycee Madu on the case as the restored Atty Gen. I’m sure he can come up with some kind of legal-kinda bafflegab to rationalize all the nonsense. Maybe he’ll say that such action is provocative and may cause the Convoy FreeDUMB fighters to take up their righteous cause and smash the bad intentions of those who seek fairness. Oh, well.

  9. Apparently according to Smith rural Albertans are a lot easier to fool than city folk so she doesn’t dare take a chance on letting them kick her out. I’m hoping they aren’t as stupid as she thinks they are.

  10. I read the legislative act too yesterday and Mr. Reynold’s piece; it seems to me that in regards to life of an assembly, we have an untested grey area between the alberta elections act 38.1 specifying 4 years and the charter of rights saying 5 years.

    So what would happen if the UCP government decided to delay the general election because of bad polls for them (which I quite frankly expect to happen) AND the Calgary-Elbow by-election has NOT been called? The 6 month clock for by-election runs out end of Feb 2023.

    As for the Sovereignty Act flip flop, no surprise there … Lt. Gov. Lakhani fired the warning shot.

  11. Help me with the logic. So the voters there voted for the ucp last election? And they would regret doing what’s best for the ucp now? Can you provide some help, your thesis doesn’t appear to have the backing if logic.

    1. 55.66 % of the electorate in Calgary Elbow voted for someone other than the UPC candidate. So I imagine the majority of the electorate would want the by-election to be held. Greg Clark (Alberta Party) was the incumbent and as expected polled strongly but I doubt that there will be a strong third party candidate this time.

      As for what’s best for the UCP, losing a seat in Calgary might actually be good for them – make them wake up and realize that they have to work harder, and offer more centrist policies to stay in power.

    2. For what reasons do the voters and residents of Calgary-Elbow want the best for the UCP after everything that’s happened?

      At this point the best is a coulda-shoulda-woulda. And that would have been an approach to the next scheduled election with the promising MLA they elected to contribute to the new party’s fortunes which, if the UCP had been even halfway okay, should have been in fair condition to campaign on its record, its platform going forward and, with a modicum of humility, the likelihood that voters forgive rookie foibles of a maiden term. The best would have been Doug Schweitzer sitting in cabinet of a government comfortably ahead in the polls and virtually sure to win its first incumbency. Doubtless that’s what Calgary-Elbow wanted and they helped the UCP the best way they could back in 2019.

      But Doug bailed on them—and not in that most helpful way for the party, either, considering (as he surely must have) his timing left a controversy which looks like it will dog the new UCP leader all the way to E-Day (that is— he gave the NDP a truckload of ammo for free).

      The best would have been a government not bothered with unity issues that its maiden mandate should have proved solved, uniting the two right-wing parties being absolutely prerequisite, presumably its most treasured asset—especially, one would expect, during its debut term. Indeed, voters generously endorsed the new party trusting just that.

      But Jason Kenney was bounced. He picked fights that, in addition to losing in detail (Keystone, carbon tax, Covid, Sasquatch, &c), stressed the sutures upon which party unity and his leadership depended completely. UCP unity was tested, yet only a little frayed (not that many caucus members were booted or demoted) until the only compromise the two factions could agree on was to sack their own creator and leader, he presumably one of the main factors in the 2019 victory. But just the prospect of Danielle Smith running to replace Kenney probably informed Schweitzer’s decision to resign (maybe even the parting shot of his timing), predicated of course by disappointment in Kenney’s leadership. Thus two of the main reasons a voter casts they way chi does—party leader and riding candidate can only be a disappointment to Calgary-Elbow.

      As if to top it off, Smith’s foolhardy boldness is patently incongruent with the weakness of her leadership win (six ballots to get only 2% more votes than the 51% which got Kenney bounced) and the deep divisions within caucus which the ostensible marriage of existential convenience cannot hide. Even Kenney—still a sitting UCP MLA—is openly attacking Smith’s reckless platform. As a result, party unity is still questionable, effectively rendering the third main reason to expend one’s vote, the party itself, another disappointment for Calgary-Elbow.

      Through all this the UCP has done nothing but disappoint the citizens of Calgary-Elbow, almost incredibly all the more now because Smith, premier designate, has just informed them that they will have no representation in the party you presume they want to help on the simplistic premise that they voted for the UCP back when it looked and promised to be united and good for Alberta. In fact, if Smith has her way, Calgary-Elbow won’t be represented by anyone in the provincial parliament until the next election and, if she’s as consistently a loose cannon as she’s been known so far , she might even repeal the fixed- term for the same reasons (the incredible expense and more credible risk of losing) that she’s hanging Calgary-Elbow out to dry for.

      So help me with the logic here: why would the voters of Calgary-Elbow want to help the UCP now after all of the things it hasn’t done for them?

    3. Bret Larson: If an MLA steps down, to make it so that the leader of their party can run in that riding, and doesn’t complete their term, while another riding has a vacated seat, and still has no MLA, it proves that both politicians only care about themselves. Why didn’t Michaela Frey remain in her riding of Brooks Medicine Hat, and Danielle Smith run in the vacant riding of Calgary Elbow? There is nothing logical about this. It’s also costly, and isn’t democratic. The people in Calgary Elbow definitely won’t be impressed with this, and rightfully so.

  12. Imagine you have a neighboring districts mla filling in for yours. Suppose funding is granted to one big project. Do you think your neighboring districts mla will try to put that project in your district, or the one they will seek reelection in? Are they going to be putting their best work into your district, or the one they will be seeking reelection in? Wearing 2 mla hats at once is a massive conflict of interest, but more so with neighboring districts. Springfield doesn’t want to be governed by Shelbyville.

    This is a really good article. Thanks for making a good loud squawk about this. Postmedia is already producing unabashed propaganda for her. You would never know that such a “conservative” media empire ever had a problem with her.

    1. I suppose that’s a problem if it’s a liberal or ndp government. Good thing it’s not! These MLA are dealing with bigger issues then local porkbarreling. They have to fend off the federal pork barreling before anything else.

      1. Bret Larson: Federal pork barreling? The pork barreling is coming from the UCP. Constituents still need an MLA. In Calgary Elbow, they will be infuriated with Danielle Smith and the UCP.

  13. Wouldn’t that be just so fun if Smith lost in Medicine Hat?
    What about K-Boy’s riding? Kenney so called quit, but is he going to milk a paycheck out of Albertans until the next election and not show up as the elected rep for Calgary Lougheed? We note he was absent from the first Danielle Smith caucus meeting.

    1. Thanks, Old Albertan. Interesting point! Kenney is, of course, still an MLA; he was demoted from Leader to Goat by the UCP party members. That doesn’t change his status as a Member of the Legislative Assembly. (And didn’t Kenney’s government award themselves the title of “Honourable” for life? Hmmm….)

      Kenney has the status, the pay and the perks of an MLA. He also has the responsibilities. Where is Jason Kenney, and what is he doing to help his constituents?

  14. As a brief aside, the Brooks- Medicine Hat riding she has decided to run in contains within its boundaries a foreign owned meat plant from where those pesky federal inspectors seized and disposed of more than 5.5 million kilograms of recalled E.coli tainted beef that Ms. Smith suggested could instead be fed to poor people. During her victory speech reference was made, between repeated and overly milked allusions to an NDP – Liberal alliance, to ‘…the single mum who has to resort to smaller and less nutritious meals…’ One hopes that the CFIA, a federal agency, will continue to remain unhindered in its law mandated obligations to monitor and maintain the safety of food we consume.
    The people of Brooks-Medicine Hat could possibly elect to the legislature an absentee, parachuted – in candidate whose political career features serial blips and gaffs. Your choice folks.

  15. The popularity of Ms. Smith’s woo woo on things legal and medical demonstrates the high level of fantasy in Alberta’s polity. For further evidence, watch the pathetic cos-play of Albertans dressing up as cowboys when most of their great grandparents had no idea which ends of the cow to avoid or the fact Alberta was settled to raise and export wheat.

    The Sovereignty Act is another con job on a population so disconnected from reality they believe their Premier can affect world oil prices and create another oil boom. The Cons’ genius has been to dupe rural landowners and small business into thinking they respect their property rights. This has all served to cover the trillion-dollar looting of Alberta by the oil and gas sector.

    With all due respect, there also seems to be a certain level of fantasy from constitutional lawyers. In my view the UCP game plan is to build on the alienation from Alberta’s industry-captured regulatory system to undermine the Judicial system. Something the Cons have laid the ground work for by passing laws to make the system irrelevant or even hostile to the public interest.
    This all stops being amusing when you start talking about a provincial police force under the direction of the UCP.

    On a lighter note, there is a draft flag the UCP can use to replace Alberta’s crest. It starts with an orange background (orange for leaking hydrocarbons). A large sphere with stitching like a baseball takes up the right-hand half representing the unity of the UCP. Next to it we have a large wood screw to symbolize how Albertans are treated by Edmonton and the energy industry. A black-gold fringe around the edge is optional.
    https://i.redd.it/whav45uwbw701.jpg

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