B.C. snap election was illegal, says Democracy Watch as it prepares lawsuit

VANCOUVER — Days before British Columbians go to the polls to elect a new government, a national advocacy group is calling on the B.C. Supreme Court to declare NDP Leader John Horgan’s snap election illegal.

Democracy Watch co-founder Duff Conacher called Horgan’s decision to call an election a year in advance of the October 2021 fixed date “unfair, self-interested and hypocritical.”

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The non-profit, non-partisan group based in Ontario, plans to file a petition in the court this week.

The goal is to set a precedent so future B.C. governments will honour fixed-date elections set out in a section of B.C.’s Constitution Act passed in 2001, Conacher said.

“We’re not trying to stop the election,” he said. “We’re hoping it (the snap election call) will be ruled illegal. We think a convention has been violated and it’s illegal to violate them.”

Horgan’s snap election call for Saturday, instead of waiting for the third Saturday of October four years after the previous election, deprives candidates the year they expected to prepare for the next election, Conacher said.

Because NDP candidates would have knowledge about the election before non-NDP candidates, “it gave them two weeks’ jump on everyone else.”

Conacher also called Horgan “hypocritical” because the NDP government passed a bill after being elected in May 2017 to move the fixed date election to October from May.

“If they had no intention of honouring it, why didn’t they eliminate the fixed date law in 2017,” he said.

Earlier this year, before the election was called, Andrew Heard, a political-science professor who specializes in constitutional issues at Simon Fraser University, said “the principle of fair elections would be seriously undermined if premiers thought they could simply disregard the need to wait four years.”

Democracy Watch filed a similar lawsuit against former Conservative Prime Minister Stephen Harper after he called a snap election in 2008, a year after a fixed-date law was passed. The election was to be held in 2009 based on fixed-date law.

That case ended up in the Federal Court of Appeal, where judges upheld the Federal Court ruling that Harper did not contravene the 2007 fixed date law or conventions supporting the law.

Heard, in an analysis, wrote that the courts’ reasoning in the case was “deeply flawed” and illogical because constitutional conventions were ignored.

Conacher said he is hoping the B.C. court will rule the snap election illegal because there have been four fixed-date elections in B.C. since 2001, which he said established a constitutional convention.

“We think a convention has been violated,” said Conacher.

Conacher expects to file the petition by Friday. It took until the last week of the election to file because it took weeks to find lawyers willing to take on the case and to give them time to prepare it, he said.

Conacher didn’t consider waiting until after the election to file because “if the premier did something illegal, the voters have the right to know.”

A spokesman for John Horgan said a statement would be coming Monday afternoon but it had not been received by deadline.

He said in an email the Constitution Act “is pretty clear on the issue,” including the section 23 (1), which says the Lieutenant-governor may dissolve the Legislature when she “sees fit.”

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