Les Leyne: Injunction bid on vote reform will be longshot

Les Leyne mugshot genericThe forces opposed to the provincial government’s plan to slap a new voting system into place appealed to the B.C. Supreme Court for help on Tuesday.

From an amateur court-watcher’s perspective, their chances don’t look good. Government policies don’t get tossed out of court because they’re wrong. They get quashed when government hasn’t followed the rules.

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It’s not what they’re doing. It’s how they’re doing it that will occupy the judge’s attention.

And there’s probably enough leeway in the Constitution, the charter of rights and the relevant legislation that the NDP-Green power play will at least get to a vote in November.

So some of the valid complaints about how fixed this fall’s referendum is, how self-serving it is and how skewed the process has been to date are just background noise in a courtroom. Nonetheless, two-thirds of the petition against the referendum is an everything-but-the-kitchen-sink encyclopedia about the inequities in the referendum.

The strictly legal arguments, by contrast, amount to a modest 10 pages. They’re based on the premise that changing the voting system is a constitutional change, so the provincial constitution would have to be changed under a section of the 1867 Constitution Act.

Another point is that the referendum results bind governments because they are presumed to represent a clear statement by the electorate. But this two-stage ballot doesn’t offer a clear choice, they argue. The first question offers a choice only between the status quo and a general undefined concept (“proportional representation”).

And the second preferential ballot on three choices of PR systems has a lot of details missing that are left to the government’s future discretion.

An additional wrinkle: Some voters on the second question will have voted against changing on the first choice. So they’ll be ranking the systems on the basis of which they dislike the least. The argument is that can’t be counted as a vote in favour, and would invalidate the results.

Also listed as a legal point are the restrictions on advertising spending during the campaign, something the plaintiffs think violates their free-speech rights.

The overall argument is that that upcoming referendum, with its no-minimum-turnout threshold, uncertain questions and arbitrary government design, doesn’t measure up to democratic standards.

The case is brought by the Independent Contractors and Businesses Association, which is becoming the omnibus challenger of all NDP moves (the Trans Mountain Pipeline stall, community benefits agreements, etc.).

Association president Chris Gardner is joined by a low-profile union leader as a plaintiff. Ken Baerg is the director of the Canada West Construction Union, an unaffiliated organization with members in B.C. and Alberta.

Their game plan is to get the referendum postponed until the legal flaws are corrected.

They say they support a referendum on voting systems, but one that’s done in a more fair and transparent manner. In the meantime, they’re active on the No side.

They lost a skirmish last month. They asked for an immediate expedited full hearing of their case. Justice Miriam Gropper denied that, and told them to file for an interim injunction, on which hearings started Tuesday and will continue today.

If it is granted, the Yes and No referendum campaigns that are technically underway would be suspended or retooled until the full hearing is concluded. That would eat at least several weeks of the time remaining until the ballots are sent out in late fall.

If their case is dismissed, the full hearing on the merits of their objections would proceed in September, with the campaigns likely ramping up around that time.

This week is just a preliminary round, but the tone of the decision will be read with interest. The NDP-Green flagship agenda item isn’t likely to be torpedoed. But some court-mandated course changes aren’t completely out of the question.

Just So You Know: Another of the legal grounds cited in the request for an injunction conjures an amusing image.

There’s an argument that one of the regulations is “inconsistent with unwritten constitutional principles.”

That’s going to be hard for the government lawyers to argue against.

“What section are you saying we violated?”

“The unwritten one.”

lleyne@timescolonist.com

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