UPDATED: Judge upholds Horgan’s 2020 snap election call

John Horgan's NDP government broke its agreement with the Greens on Sept. 21, 2020 to seek a majority mandate. | Twitter

A B.C. Supreme Court judge has dismissed a petition aimed at finding Premier John Horgan and Lt. Gov. Janet Austin broke the law by scheduling an election a year early in 2020.

Democracy Watch and IntegrityBC founder Wayne Crookes did not contest the result of the snap election, but their lawsuit took issue with Horgan calling the vote a year early and without testing the confidence of the Legislative Assembly. 

British Columbia had four consecutive elections every four years in May after the BC Liberals amended the Constitution Act when they came to power in 2001. Fixed election date laws were adopted in 11 other Canadian jurisdictions, including the federal government. 

“The idea was that elections should take place on a fixed four-year schedule, rather than at the politically motivated whim of the Premier of the day,” wrote Justice Geoffrey Gomery in his June 21 verdict, the product of a two-day May hearing.

The NDP came to power as a bare minority government in 2017 with support of the three-member Green Party caucus and signed an agreement to not call an early election. Horgan’s party also amended the law to move the next election from May 2021 to October 2021. 

“The province was labouring under a state of emergency due to the COVID-19 pandemic.  Nevertheless, the Premier wished to call an election,” Gomery wrote.

Horgan took advantage of a lull between waves of the COVID-19 pandemic and favourable polling to break the contract with the Greens on Sept. 21, 2020 and seek a majority mandate. It worked, with the NDP winning 57 seats on Oct. 24, 2020.

The petitioners wanted a declaration that Horgan broke the law by advising Austin to dissolve the Legislature, that she improperly exercised her discretion under the Act to dissolve and that she also improperly exercised her power under the Election Act to call the election. They claimed Horgan and Austin were not authorized to use statutory powers to trigger an early election “for no better reason than to secure a partisan political advantage for the Premier and his party. This, they say, was the very evil that the institution of a fixed election cycle in 2001 was intended to avoid.”

However, Gomery ruled that section 23(1) of the B.C. Constitution Act is “unambiguous,” because it gives the Lieutenant Governor power to dissolve the Legislature “when the Lieutenant Governor sees fit”.

“The Lieutenant Governor’s power to dissolve the Legislature under s. 23(1) of the [Act] is unaffected by the establishment of the fixed election cycle under s. 23(2),” Gomery wrote. “The Premier’s power to recommend a dissolution is equally unconstrained. It follows that the petitioners’ claim in this proceeding lacks legal merit, and the proceeding must be dismissed.”

DemocracyWatch co-founder Duff Conacher said an appeal is under consideration, because one Member of the Legislative Assembly should not be allowed to override the will of all others.

"Unfortunately, the B.C. Supreme Court has ignored the will of the B.C. Legislature, and the rights of voters to fair elections, by letting Premier Horgan off the hook for violating the fixed election date law,” Conacher said. “The U.K. Supreme Court issued a unanimous ruling in 2019 that it was illegal for the British Prime Minister to shut down Parliament for no good reason when a majority of MPs wanted Parliament to stay open and operating.”

In the case, lawyers for the Attorney General argued that the provincial Legislature did not impose any legal limit on the Premier’s discretion to recommend dissolution or on the Lieutenant Governor to effect it.

 “It contends that the only check on the calling of an unscheduled election is not legal; it is political,” Gomery wrote.

The petitioners did not contest the validity of the results of the election itself. Nor did the judge comment on whether Horgan and Austin acted reasonably. 

The 2020 election was the most-expensive administered by Elections BC at $51.6 million, yet the 53.9% turnout rate was a record low. 

Will Horgan, who said he is now cancer-free, be the NDP leader for the next scheduled election in October 2024 or call another snap election? 

Horgan was noncommittal about his future as Premier during a June 24 interview with host Gregor Craigie on CBC Radio Victoria.

He said he is meeting this weekend with caucus in Vernon and next week with cabinet in Vancouver. 

“We’re plotting and planning and preparing for the next two years, and so I’ll have more to say about that as we come out of those meetings,” Horgan said.