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Government lawyer defends B.C.'s 2020 snap election call

Lawsuit seeks ruling that Premier John Horgan and Lt. Gov. Janet Austin broke B.C. election law in approving vote that gave majority to BC NDP.
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The petitioners behind a lawsuit that claims Premier John Horgan and Lt. Gov. Janet Austin broke B.C. election law "seek to have the judicial branch weigh in on what are fundamentally political question," a lawyer for the B.C. government told BC Supreme Court.

A lawyer for the provincial government said in B.C. Supreme Court on May 13 that a judicial review of B.C.’s 2020 snap election is a waste of time.

“A new government has been formed, passed a budget and enacted numerous pieces of legislation,” said Emily Lapper, on the second of two days before Justice Geoffrey Gomery. “In so doing, the petitioners seek to have the judicial branch weigh in on what are fundamentally political questions.”

After the BC Liberal government amended the law in 2001 to schedule elections, B.C. voters went to the polls in May once every four years between 2005 and 2017. BC NDP Premier John Horgan broke the cycle on Sept. 21, 2020, when Lt. Gov. Janet Austin agreed to dissolve the Legislative Assembly and schedule the Oct. 24, 2020, election.

Democracy Watch and IntegrityBC founder Wayne Crookes filed for judicial review the day before Horgan’s BC NDP won a 57-seat majority. They say Horgan broke the fixed election date law by calling the snap election without testing the confidence of the legislature. It was also contrary to the May 2017 confidence and supply agreement with the BC Greens, which said there would be no election for at least four years.

What’s more, the NDP and Greens had amended the fixed election date law to move the next election from May 2021 to October 2021. But Horgan exploited a perceived lull in the pandemic to call the fall 2020 election in order to seek a majority.

Before the 2001 amendment, elections could occur whenever the lieutenant governor accepted a premier’s advice to exercise the Crown prerogative to dissolve the assembly, Lapper said.

“This was subject only to the constitutional requirements that an election occur within a five-year window,” Lapper said. “And that constitutional requirement is derived from the Charter.”

Lapper noted that the BC Liberal government did not amend the clause that left the lieutenant governor’s power to dissolve the legislature intact.

She also mentioned how Premier Christy Clark unsuccessfully sought dissolution in June 2017, after the NDP and Greens defeated the BC Liberal minority in a confidence vote.

“The power to dissolve the legislature is the lieutenant governor's alone, that only she exercises that power. The first minister does not have the prerogative power to dissolve the legislature. By convention, the first minister advises the lieutenant governor, but it is the lieutenant governor.”

Canadian courts, Lapper argued, have repeatedly recognized the Crown’s prerogative and that the conventions governing their exercise “are not amenable to judicial review.”

On May 12, the lawyer for Democracy Watch and Crookes said the purpose of the 2001 amendment was to restrict a premier’s power.

“If premiers could time elections when their opponents were at their weakest, then they would gain political advantage from that scheduling,” MacKinnon told the court.

How much are taxpayers spending to defend Horgan’s snap election call?

During the final week of the election campaign in 2020, after Democracy Watch announced it was going to court, a reporter asked Horgan if the BC NDP would pay the legal bills to defend his election call.

“I don’t believe that this case is warranted,” Horgan said on Oct. 21, 2020. “And I don’t believe that the cost will be significant. I’ll certainly take a look at that when it concludes.”

Gomery is expected to reserve his decision.