The British Columbia Civil Liberties Association (BCCLA) and Avigail Eisenberg, a director of the Association and a registered voter, have today filed in B.C. Supreme Court a constitutional challenge to the Province’s recall legislation.

In 1994, the BCCLA issued a report urging the B.C. Legislature not to enact legislation which allows for recall. Four serious drawbacks to recall were identified:

Recall would disadvantage policy solutions requiring compromise between different constituencies.

• Recall would impair the ability of MLAs to tackle political issues involving difficult choices between competing interests and possibly conflicting sectors of the population.
• Recall would undermine Cabinet and Caucus solidarity, thus discouraging teamwork in government.
• Recall would invite political mischief by organized interest groups.

Recall is not just a minor addition to our political structures but, in the view of the BCCLA, a profound change to our system of representative democracy. It entrenches a theory of government that sees members as merely mouthpieces of their constituents, rather than their representatives in the Legislature. In so doing, it weakens the fabric of responsible and deliberative government.

The civil rights group will argue that section 3 of the Canadian Charter of Rights and Freedoms, the right to vote, includes not just the right to cast a ballot, but the right to do so within a political system where winning candidates will serve as the representatives not just of those who voted for them, nor just the residents of their ridings, but rather of the citizens of our province as a whole.

“We want our MLAs to be free to balance competing interests and to act in the public interest,” said Ms. Eisenberg, “without having to be continually looking over their shoulders to see whether a disgruntled minority of constituents will start a recall campaign. Those who believe that recall is pure democracy in action are sorely mistaken; in actual fact it encourages demagoguery and leads to bad government.”

Some of the Association’s worst fears were realized during the recent campaigns to recall MLAs Paul Ramsey and Helmut Geisbrecht, but the BCCLA’s concerns transcend what happened in those particular instances.

One of the principal grounds for the Constitutional challenge is that recall introduces political institutions foreign to, and incompatible with, the Canadian system of parliamentary democracy.

Recall provisions frustrate, and undermine the votes of, those citizens who voted for a member when that member has committed no crime or otherwise engaged in conduct that warrants lawful impeachment.

The BCCLA has retained Joseph Arvay of the law firm Arvay Finlay to bring and argue the case, which should be heard early next year.