The Queen’s Representative in British Columbia can order an election at any time, regardless of BC’s Fixed Election Act.
That is the conclusion of BC Supreme Court judge Geoffrey Gomery in a June 21 court ruling.
First off, here’s some history behind how this matter came to court.
When Prime Minister John Horgan was high in the polls in 2020 and decided to call an election, it infuriated his opponents.
They had three major objections to his decision to apply for a mandate on October 24, 2020, three and a half years after the previous election:
1. It was irresponsible to call elections as the second wave of COVID-19 was on the rise.
2. The NDP caucus had a trust and delivery agreement with the BC Green caucus in 2017 that was in effect “for four years, or until the next election on a fixed date as determined by the BC Constitution†
3. BC had a fixed election date law. The legislation, introduced by a former Prime Minister, Gordon Campbell, stated that voters would go to the polls on the second Tuesday in May in the fourth calendar year after the last general election.
Despite these concerns, Lieut.-Gov. Janet Austin has granted Horgan’s request to dissolve the legislature so that elections can be held.
The BC NDP won the largest landslide in history, forming the first majority government since the 1996 elections. That led to the resignation of then BC Liberal leader Andrew Wilkinson.
An Ottawa-based public interest group, Democracy Watch, and BC businessman Wayne Crookes then decided to challenge the legality of the Prime Minister’s and Lieutenant Governor’s actions in a petition filed with the BC Supreme Court.
The petitioners argued that the 2020 BC election was illegal because the Prime Minister had only asked for it to gain a partisan political advantage, which was not allowed under Article 23(2) of the Constitution.
It reads: “Subject to paragraph (1), a last day of voting must occur on the third Saturday in October in the fourth calendar year following the last day of voting for the most recently held general election.”
Attorney General David Eby, on the other hand, argued that petitioners misinterpreted this section and misunderstood the power of the lieutenant governor.
In addition, these lawyers argued that the lieutenant governor, who is the Queen’s representative, has “unlimited prerogative power”. This is despite what the legislature had enshrined in Article 23(2) of the Constitution (BC) when the BC Liberals were in power.
Article 23(1) states: “The Lieutenant Governor may, by proclamation in the name of Her Majesty, suspend or dissolve the Legislative Assembly whenever the Lieutenant Governor considers it necessary.”
State attorneys also argued that the MLAs in the legislature lacked the constitutional authority to set a fixed election date under this law.
Justice Geoffrey B. Gomery rejected this latter argument, concluding that all Section 23 of the BC Constitution is “constitutionally valid.”
However, he also stated in his decision of 21 June that Article 23(1) is “unambiguous”.
“Under its terms, it grants the lieutenant governor the power to dissolve the legislature ‘when the lieutenant governor deems it necessary,'” Gomery wrote. “There is no more room for the exercise of the former prerogative power in the event of dissolution. Strictly speaking, the prerogative power has become a legal power.”
As a result, Gomery rejected the Democracy Watch and Crookes petition.
“To sum up all these reasons, it is better to see that the power of the Lieutenant Governor to dissolve the Legislature under Article 23(1) of the CA(BC) is not affected by the determination of the fixed election cycle under art. 23(2),” concluded Gomery. “The Prime Minister’s power to recommend dissolution is equally unlimited.”
The petitioners have not requested “consequential relief” in their legal petition. This meant that regardless of the outcome, they did not seek a judicial explanation that the 2020 election result was invalid.
Referring to case law, Gomery noted that a request for judicial review is “a request on file with the decision-makers whose decision is under review”. However, the file that the Prime Minister and the Lieutenant Governor were considering was not submitted to the court.
The court was therefore unable to assess whether the prime minister and the lieutenant governor acted reasonably.
“Because this is an issue that only came up during the hearing, I would not have dismissed the petition on procedural and evidentiary grounds if I had determined that the petitioners were on solid legal grounds,” said Gomery. pronunciation. “I would have given both sides an opportunity to consider what further material should be submitted to the Court, and to comment in light of that material. None of this is necessary given the conclusions I have drawn.”