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Statement of Claim in BC Supreme Court regarding Recall Legislation

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VANCOUVER REGISTRY 

IN THE SUPREME COURT OF BRITISH COLUMBIA 

BETWEEN: 

THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and AVIGAIL EISENBERG  PLAINTIFFS

AND: 

THE ATTORNEY GENERAL OF BRITISH COLUMBIA DEFENDANT

 

STATEMENT OF CLAIM

  1. The Plaintiff, The British Columbia Civil Liberties Association, (“the BCCLA”) is a Society duly incorporated as such pursuant to the Societies Act with its registered office at 425 – 815 West Hastings Street, Vancouver, British Columbia, V6C 1B4, the objects of which are to promote, defend, sustain and extend civil liberties and human rights.
  2. The Plaintiff, Avigail Eisenberg, is a Professor of Political Science at the University of British Columbia and is registered as a voter in the electoral district Vancouver-Mount Pleasant. She is also a Director of the BCCLA.
  3. The Defendant Attorney General of British Columbia has an address for service at 1001 Douglas Street, Victoria, British Columbia, V8V 1X4.
  4. On July 8, 1994 the Recall and Initiative Act (the “Act”) received Royal assent and was brought into force on February 25, 1995. The Act was consolidated in the 1996 Revised Statutes of British Columbia as RSBC 1996 chapter 398. The Act, as its name indicates, has two main components: “Initiatives” and “Recall”. This claim concerns only the Recall Provisions.
  5. Part 3 of the Recall and Initiatives Act which is the subject of this claim is set out in full as follows: (the “Recall Provisions”)

Part 3 – RECALL
Division 1 – Recall Petition
Application for recall petition

19

  1. A registered voter for an electoral district may apply under subsection(2) for the issuance of a petition for the recall of the Member of the Legislative Assembly for that electoral district.
  2. The application for the issuance of a recall petition must be made to the chief electoral officer and contain the following:
    1. the name of the Member;
    2. the name and residential address of the applicant;
    3. a statement, not exceeding 200 words, setting out why, in the opinion ofthe applicant, the recall of the Member is warranted;
    4. a solemn declaration of the applicant that he or she is not disqualified under this Act from making the application;
    5. any other information that may be prescribed.
  3. The application for the issuance of a recall petition must be accompanied by a processing fee of $50.00.
  4. No application for the issuance of a recall petition masy be made during the 18 months following general voting day for the last election of the Member.

Issuance of recall petition 20 

  1. If satisfied that the requirements of section 19 have been met, the chief electoral officer must
    1. notify the proponent, the Member in relation to whom the petition is to be issued and the Speaker that the application has been approved in principle, and
    2. issue the petition in the form set out in the regulations within 7 days after notice is given in accordance with paragraph (a).
  2. A recall petition must be signed within 60 days from the date on which it is issued by the chief electoral office.
  3. Once an application has received approval in principle, it may be inspected at the office of the chief electoral officer during its regular office hours.

Who may sign a recall petition

21

  1. In order to sign a recall petition, an individual
    1. must have been a registered voter for the electoral district for which the Member was elected on general voting day for the last election of the Member, and
    2. on the date he or she signs the petition, must be a registered voter for an electoral district in British Columbia.
  2. An individual may sign any one recall petition only once.
  3. An individual who signs a recall petition must also indicate his or her residential address on the petition.

Who may canvass for signature

22

  1. A registered voter may canvass for signatures on a recall petition if, before the date on which he or she begins canvassing,
    1. the voter has been resident in British Columbia for at least 6 months, and
    2. the voter has registered his or her name and residential address with the chief electoral officer.
  2. A person must not, directly or indirectly, accept any inducement for canvassing for signatures on a recall petition.
  3. A person must not, directly or indirectly, pay, give, lend or procure any inducement for a person who canvasses for signatures on a recall petition.

Requirements for recall petition 23

  1. A recall petition must comply with the following requirements:
    1. the petition must be submitted to the chief electoral officers within 60 days after the date on which the petition was issued under section 20;
    2. the petition must be signed by more than 40% of the total number of individuals who are entitled to sign the recall petition under section 21.
  2. To be counted for the purpose of subsection (1)(b), a signature on the petition must be accompanied by the residential address of the individual who signed and must be witnessed by the individual who canvassed the signature.

Time limit for determination 24

  1. When a recall petition is submitted to the chief electoral officer, he or she must determine within 42 days and in accordance with the regulations, if any, whether the petition meets the requirements of section 23.

Result of successful recall petition 25

  1. If the chief electoral officer determines that
    1. the recall petition meets the requirements of section 23, and
    2. the proponent has complied with Part 7,

    The Member ceases to hold office and the seat of the Member becomes vacant.

  2. The chief electoral officer must report to the Member and to the Speaker of the Legislative Assembly as soon as possible after making a determination under subsection (1).

Division 2 – By-election
Election

26

When a Member’s office becomes vacant as a result of a recall petition, an election must be held to fill the vacancy in accordance with section 35 of the Constitution Act.

Prohibition on multiple elections with respect to the same electoral district

27Only one election for any electoral district may be held under this Act during the period between elections.

Application of Election Act

28

The Election Act applies to an election under this Act.

British Columbia is the only jurisdiction in Canada with Recall legislation.

 

  • To date there have been seven petitions that the Chief Electoral Officer has given approval in principle to, for the recall of Members of the Legislative Assembly. They are as follows:
    1. On December 1, 1997 the Chief Electoral Officer gave approval in principle to the Petition to recall the Honourable Paul Ramsey (“Ramsey”), MLA for Prince George North and Minister of Education, Skills and Training. The proponent of the Petition provided the following opinion as tow hy the recall of the Minister was warranted:
      1. Paul Ramsey has not adequately represented the citizens of Prince George North.
      2. Mr. Ramsey won his seat in the 1996 provincial election by leading constituents to believe the budget was balanced when in fact it was not. This misrepresentation of the province’s financial well-being resulted in calcellation and dealys in promised capital expenditures.
      3. Mr. Ramsey as Minister of Health and Minister of Education condoned the firing of democratically elected hospital boards and has threatened to dismiss a democratically elected school board.”
    2. On December 1, 1997 the Chief Electoral Officer gave approval in principle to a Petition for the recall of Helmut Giesbrecht (“Giesbrecht”), MLA for Skeena. The proponent of the Petition provided the following opinion as to why the recall of the Member was warranted:
      1. “Mr. Giesbrecht has repeatedly, throughout both his terms in office, refused to listen to, or represent, the people of Skeena riding on numerous critical issues. On many of these issues he has even publicly ridiculed and verbally attacked the very people who brought these requests to him. He has demonstrated by his decisions and actions that he does not work for the people—he works for the government. This has left the people of Skeena riding without a voice in Victoria.”
    3. On December 8, 1997 the Chief Electoral Office gave approval in principle to a second Petiton for the recall of Helmut Giesbrecht. The proponent of the Petition provided the following opinion as to why recall of the Member was warranted:
      1. Because we can’t blame everything on el Nino, Helmut Giesbrecht should be called to account for the current state of affairs in Skeena.”
    4. On January 6, 1998 the Chief Electoral Officer accepted an application for a Petition to recall Gordon Campbell, MLA for Vancouver-Point Grey and Leader of the Official Opposition. The proponent’s opinion as to why the recall of the Member was warranted is as follows:
      1. “The incumbent stated frequently during the 1996 election campaign that his party would win the election. Only after the ballots had been counted was this revealed as a falsehood that had wrongly influenced many Point Grey voters. His constant whining since then has caused his constituents great embarrassment and they desire recall so they may elect someone less boring and more truthful.”
    5. On January 9, 1998 the Chief Electoral Officer accepted a second Petition for the recall of the Honourable Paul Ramsey, the Member of the Legislative Assembly for the Electoral District of Prince Geore North, the Minister of Education, Skills and Training. The proponent of the Petition provided the following opinion as tow hy recall of the Minister was warranted:
      1. “Mr. Ramsey has forgotten the socialist roots of the New Democratic Party in the Cooperative Commonwealth Federation and the Regina Manifesto. Many of his positions are indistinguishable from those of his Social Credit predecessors.
      2. He has failed to aggressively pursue progressive taxation of luxury consumption, wealth and inheritances and the abolition of hidden gifts to large corporations and churches in the form of tax exemptions.
      3. He should have persuaded his colleagues in Cabinet to increase the minimum wage to a level where a full-time worker would always be above the poverty level.
      4. He should have shut down all bee-hive burners in Prince George.
      5. He should be working forcefully against Canada’s participation in international agreements, such as the Multilateral Agreements on Investments, which diminish Canada’s sovereignty without corresponding benefit to our nation.”
    6. On January 20, 1998 the Chief Electoral Officer accepted an application for a Petition to recall Rich Coleman, MLA for Fort Langley-Aldergrove. The proponent’s opinion as to why the recall of the Member was warranted is as follows:
      1. “He has misled his constituents about his close relationship with the Langley Leadership Team. This group has taken over the administration of the Town of Langley and is working with Mr. Coleman to advance the interests of a small number of developers, not the constituents of Langley.
      2. The LLT has removed award-winning administrators from Langley Township and replaced them with political friends. The LLT has refused to listen to the large numbers of citizens concerned about unrestricted development in rural areas of Langley. Mr. Coleman is working on behalf of these special interests in Victoria.
      3. Despite the stronger need for other municipal works such as an overpass at 200th Street, Coleman and the LLT are working to divert resources to an unnecessary overpass on 208th Street, which would benefit the developer friends of Coleman and the LLT.
      4. Mr. Coleman has worked against the interests of his constituents who oppose the development of rural areas of Langley. I am without proper representation in the BC Legislature as long as Mr. Coleman is MLA.
    7. On February 5, 1998 the Chief Electoral Officer accepted an application for a Petition to recall Evelyn Gillespie, MLA for Comox Valley. The proponent’s opinion as to why the recall of the Member was warranted is as follows:
      1. “Evelyn Gillespie has failed to adequately convey the wishes of her constituents to Victoria. And, at times, she has actually acted against our interests. Examples, such as the Glacier View Lodge and the B.C. Ferry issues, amply demonstrate her unwillingness to listen to the people of the Comox Valley. Instead, she chose her bosses in Victoria over us. As such, I believe she is liable to be made accountable. And subject to this recall.”
  • Petitions for the recall of Ramsey and Giesbrecht that were filed and approved on December 1, 1997 failed to obtain the requisite number of signatures within the 60 days from which the date the Petition was issued by the Chief Electoral Officer. The recall campaigns were, however, divisive, disruptive, polarizing and abusive.
  • None of the persons against which Petitions for recall have been issued have indicated any willingness of intent to challenge the constitutionality of the Recall Provisions; nor have any of the registered voters in any of the electoral districts that have been the subject of Petitions for recall. The BCCLA has demonstrated a long-standing, genuine and continuing concern for the institutions of government in our system of parliamentary democracy. In June of 1994 the BCCLA issued a Report on Recall and Initiative in which it, inter alia, urged the British Columbia Legislature not to adopt legislation which allows for recall. The vast majority of the members of the BCCLA are voters who are registered under the Election Act as voters for an electoral district.
  • The Recall Provisions violate section 41 of the Constitution Act, 1982 because they alter the Office of the Lieutenant Governor. In particular, the Recall Provisions (a) dilute or undermine the Lieutenant Governor’s power to dissolve the Legislative Assembly by creating a power of dismissal of all or part of the Assembly in a minority of the electorate; (b) interfere with the ability of the Lieutenant to select and dismiss Ministers at pleasure; and (c) undermine the legal and constitutional principle that the government’s authority is derived from the Crown.
  • The Recall Provisions are also ultra vires the Legislature of British Columbia because they offend against the Preamle to the Constitution Act, 1968which guarantees a “Constitution similar in Principle to that of the United Kingdom.” The Recall Provisions introduce political institutions foreign to and incompatible with the Canadian system of parliamentary democracy. In particular, but without limiting the generality of the foregoing, the Recall Provisions:
    1. weaken the fabric and practice of responsbile and representative government;
    2. entrench a theory of government which sees Members as merely the delegate or “mouthpiece” of their constituency rather than their representatives in the Legislative Assembly;
    3. interferes with the tenure of the Members even through they have committed no crime or otherwise engaged in corruption or other serious misconduct;
    4. undermines the established sytems of party discipline and determination of confidence in the government;
    5. undermines the effectiveness of Cabinet and renders the Ministers of the Crown particularly vulnerable to special interests and pressure groups (ncluding those that are not constituents) who are critical of governmental policy and legislative decisions;
    6. interferes with the enactment of laws and other public policies that are in the public interest, for example:
      1. Members may become advocates of their electoral districts to the exclusion of Province-wide or societal interests;
      2. policy solutions that require a compromise between different communities may be disadvantaged;
      3. the interests of the organized, wealthy and dominant in the society may be favoured to the disadvantage of minorities, the poor and the less well organized;
      4. Members may become overly concerned with keeping their seats and thereby refrain from action in the public interest in order to avoid conflict or controversy.
    7. undermine government stability, particularly when the government is elected with only a small majority;
    8. are demogogic and anti-democratic;
    9. will result in recall campaigns that might be divisive, disruptive, polarizing and abusive.
  • Furthermore the Recall Provisions are ultra vires the Legislature of British Columbia as constituting an amendment to the Constitution of Canada without compliance with s. 43 of the Constitution Act, 1982for reasons which include:
    1. the Recall Provisions are contrary to the Preamble of the Constitution Act, 1867 which guarantees a Constitution “similar in Principle to that of the United Kingdom”;
    2. the Recall Provisions are contrary to s. 33 of the Constitution Act, 1871 which limits the grounds for which a Member shall forfeit his or her seat to situations where the Member shall “become a bankrupt, or an insolvent debtor, or a public defaulter, or be attainted of treason, or be conficted of felony or any infamous crime,…”
  • Furthermore the Recall Provisions infringe the citizen’s right to vote as guaranteed by section 3 of the Canadian Charter of Rights and Freedomsfor reasons which include the following:
    1. they infringe the citizen’s right to representative democracy;
    2. they infringe the citizen’s right to effective representation in the Legislative Assembly;
    3. they frustrate and undermine the votes of those citizens who voted for a Member even through the Member committed no crime or otherwise engaged in serious misconduct;
    4. there is no secret ballot;
    5. the votes of those not signing the petition are not counted;
    6. the result is not determined by a plurality of votes;
    7. the citizens are not presented with a choice of candidates;
    8. the citizens are not provided with sufficient information about public policies to permit an informed decision;
    9. the citizens of the electoral district in which recall petitions are successful are denied representation in the Legislative Assembly until a by-election and, by virtue of section 27 of the Act, may be denied representation until a general election in the case of a second recall petition.
  • As well, the Recall Provisions infringe the right of every citizen of Canada to be “qualified for membership” in a Legislative Assembly constrary to s. 3 of the Charter of Rights and Freedoms which includes the right to remain a Member until resignation, electoral defeat or removal from the Legislative Assembly in accordance with s. 31 of the Constitution Act, 1871 or pursuante to the Legislature’s privilege to expel a Member.
    • In offending against sec. 3 of the Canadian Charter of Rights and Freedoms Act, the Recall Provisions cannot be saved under section 1 of the Charter.

      WHEREFORE THE PLAINTIFF SEEKS:

      1. A declaration pursuant to section 52 of the Constitution Act, 1982 that the Recall Provisions are unconstitutional and of no force or effect; and
      2. Costs.

      PLACE OF TRIAL: Vancouver, British Columbia. Dated this 16th day of March, 1998.
      Joseph J. Arvay
      Solicitor for the Plaintiffs