The early calling of B.C.’s October 2020 provincial election was not unconstitutional, B.C.’s Court of Appeal ruled Nov. 7.
B.C. voters had been going to the polls every four years between 2005 and 2017 after the BC Liberal government amended the election scheduling requirements in the British Columbia Constitution Act.
However, then-B.C. NDP Premier John Horgan broke that cycle on Sept. 21, 2020, when Lt.-Gov. Janet Austin agreed to dissolve the Legislative Assembly and schedule the 2020 vote.
That prompted Democracy Watch and IntegrityBC founder Wayne Crookes to file for judicial review the day before Horgan’s B.C. NDP won a 57-seat majority.
They asserted Horgan broke the fixed election date law by calling the snap election without testing the confidence of the legislature.
Further, the snap election call was 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.
B.C. Supreme Court Justice Geoffrey Gomery ruled in June 2022 that the B.C. Constitution Act was “unambiguous” because it gives the lieutenant governor the power, whenever he or she sees fit, to act on a premier’s advice to dissolve the legislature.
Government lawyers had argued that there is nothing in the legislation saying the general voting day cannot occur at an earlier date than the fixed date.
So, Democracy Watch and Crookes appealed.
The panel of three appeal judges unanimously ruled that Gomery was overall correct in his decision.
The decision, written by Justice Barbara Fisher with justices Ronald Skolrood and Peter Willcock agreeing, said Gomery was incorrect in concluding that the Constitution Act had converted the lieutenant governor’s prerogative power of dissolution into a statutory power.
But, Fisher added, that error did not affect Gomery’s interpretation of the legislation.
Fisher said Gomery correctly held that the Constitution Act imposes no justiciable limit on the premier’s ability to advise the lieutenant governor to dissolve the legislature and call an election.
The clear words of the statute do not limit the lieutenant governor’s power to dissolve the legislature or the premier’s power to recommend a dissolution.
With files from Bob Mackin