Case is not to overturn election – just to have court rule, as New Brunswick appeal court did last December, that Premier can’t call snap elections

UK Supreme Court in 2019, and New Brunswick appeal court in 2022, both ruled that courts can rule on whether a political decision violates the law

FOR IMMEDIATE RELEASE:
Thursday, October 19, 2023

OTTAWA – Democracy Watch announced that, after a long delay caused mainly by a backlog in the B.C. courts, the B.C. Court of Appeal (BCCA) will today hear its appeal, filed together with Wayne Crookes (founder of IntegrityBC), of the June 21, 2022 ruling by the B.C. Supreme Court (BCSC) that contradicted itself in rejecting the lawsuit challenging former Premier John Horgan’s September 2020 snap election call one year before the fixed election date of October 2021.

The appeal, BCCA file #CA48434, is being heard today from 10 am to 4 pm PST in Courtroom 50 of the Vancouver courthouse at 800 Smithe St., and can be watched online by clicking the link on this webpage. Emily MacKinnon and associates at Osler, Hoskin and Harcourt LLP in Vancouver are providing legal counsel to Democracy Watch and Wayne Crookes for the court case.

BCSC Justice Gomery’s June 21, 2022 ruling concluded that the B.C. Legislative Assembly intended to prohibit the Premier from calling snap election when it enacted changes under Bill 7 in 2001 to s. 23 of B.C.’s Constitution Act (which the Assembly confirmed when it changed the fixed election date from May to October with Bill 5 in 2017). He also ruled that the measures legally can prohibit the Premier from advising the Lieutenant Governor to call a snap election (every Premier had complied with the fixed election date requirement in the four elections before Premier Horgan’s 2020 snap election call).

However, the justice then contradicted himself by ruling that the measures don’t actually prohibit snap elections because that would give voters the right to challenge snap election calls in court, and courts shouldn’t rule on such political decisions.

Democracy Watch and Mr. Crookes are arguing that many laws have been enacted to prohibit premiers and prime ministers from doing many political things, just like the fixed election date law clearly prohibits the Premier from calling a snap election (unless a vote of non-confidence in the government occurs in the Legislative Assembly, based on the constitutional principle of the sovereignty of the legislature and the constitutional convention of responsible government).

As a result, it is the proper and constitutional role of the courts to issue a ruling if anyone files a lawsuit challenging the Premier’s violation of the legal prohibition on calling a snap election.

In further arguments filed in response to the B.C. government’s arguments, the lawyers for Democracy Watch and Mr. Crookes argue that the fixed election date measures don’t just require the Premier to call an election at least every four years, but also clearly prohibit the Premier from calling an election before the fixed date (again, unless a vote of non-confidence occurs in the Assembly).

“By calling a snap election during a pandemic instead of waiting for the fixed election date, Premier Horgan acted like an old-school power-crazed politician, not a new democrat committed to fair and democratic elections,” said Duff Conacher, Co-founder of Democracy Watch. “The B.C. legislature wanted to keep operating when the Premier called the snap election, and no single MLA, not even the Premier, has the right to shut down the legislature for no good reason, as the UK Supreme Court ruled unanimously in 2019 and the New Brunswick Court of Appeal ruled unanimously last year.”

“Hopefully the B.C. courts will rule that the Premier violated the law when he called his self-interested, hypocritical and unfair snap election, which will prevent snap elections in the future,” said Conacher.

The UK Supreme Court ruled unanimously in 2019 that Prime Minister Boris Johnson’s prorogation of the British Parliament was illegal because it violated the constitutional principles of the sovereignty of parliament and responsible government. Last December, the New Brunswick Court of Appeal ruled on the appeal filed by Democracy Watch and Mr. Crookes that the province’s fixed election date measures in its election law prohibit the Premier from calling a snap election for purely partisan purposes when an election favours the ruling party.

Calling a snap election in violation of B.C.’s constitution is bad – Premier Horgan calling a snap election during the COVID pandemic was even worse. Elections B.C. was forced by Premier Horgan’s cynical power grab-scheme to issue 16 emergency orders to change how polling stations will run and people will vote, and it will likely hurt voter turnout. Wayne Crookes filed an affidavit in support of the case setting out all the evidence about how bad the snap election call was.

Snap elections are unfair to opposition parties (as they are usually called when having an election favours the ruling party, as was the case in B.C.) and also to people who want to run as a candidate but can’t afford to suddenly drop everything and run. That’s why the federal Parliament, and every province, followed B.C.’s lead and have enacted fixed election date measures over the past 20 years.

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FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

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