Democracy Watch v The Lieutenant Governor of British Columbia

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Democracy Watch v. British Columbia (Lieutenant Governor),

2022 BCSC 1037

Date: 20220621

Docket: S2010710

Registry: Vancouver

Between:

And

Democracy Watch and Wayne Crookes

Petitioners

The Lieutenant Governor of British Columbia, the Lieutenant Governor in

Council of British Columbia, the Attorney General of British Columbia, and Her

Majesty the Queen in Right of the Province of British Columbia

Respondents

In Chambers

Before: The Honourable Mr. Justice Gomery

Reasons for Judgment

Counsel for the Petitioners:

Counsel for the Respondents:

E. MacKinnon

S. Ortega

B. Noga

E. Lapper

K. Fast

Place and Dates of Hearing:

Place and Date of Judgment:

Vancouver, B.C.

May 12 & 13, 2022

Vancouver, B.C.

June 21, 2022

Democracy Watch v. British Columbia (Lieutenant Governor)

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Table of Contents

INTRODUCTION ....................................................................................................... 3

ISSUES...................................................................................................................... 7

ANALYSIS................................................................................................................. 8

1. Does the Province have constitutional authority to enact legislation that

constrains the Lieutenant Governor’s prerogative authority to dissolve the

Legislature?............................................................................................................ 8

2. If the legislation is valid, is the Lieutenant Governor’s power to dissolve the

Legislature under s. 23(1) of the CA(BC) a statutory power or a prerogative

power? ................................................................................................................. 15

3. Properly construed, does s. 23 of the CA(BC) constrain the power of the

Lieutenant Governor to dissolve the Legislature or the Premier’s power to

recommend a dissolution? ................................................................................... 16

The legislation................................................................................................... 16

The competing interpretations of s. 23 of the CA(BC) ...................................... 18

Assessment ...................................................................................................... 19

4. Is this proceeding an application for judicial review governed by the JRPA? 23

DISPOSITION.......................................................................................................... 25

Democracy Watch v. British Columbia (Lieutenant Governor)

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Introduction

[1]

Canadian provincial governments are constituted as parliamentary

democracies. There is an elected legislature. An executive governs in the name of

the Queen in the person of a Lieutenant Governor. The head of the executive is a

Premier who qualifies as such through his or her ability to command the support (or

“confidence”) of a majority of the members of the legislature. For the most part, the

Lieutenant Governor does what he or she is told to do by the Premier and the

executive council or cabinet chosen by the Premier. At the federal level, the

constitutional structure is the same though some of the terminology differs.

[2]

The Lieutenant Governor may dissolve the legislature and call an election on

the request of the Premier. If the Premier loses legislative support, there must be a

renewal of government. The Lieutenant Governor may inquire to see if there is

another person who might command support from the existing legislature and form a

new government, or may dissolve the legislature and call an election to replace it

with a legislature that will choose a Premier to form a new government. That new

government may be headed by the former Premier, if the former Premier has the

support of a majority of the members of the new legislature.

[3]

In British Columbia, the Lieutenant Governor’s power to dissolve the

Legislature is set out in s. 23(1) of the Constitution Act, R.S.B.C. 1996, c. 66

[CA(BC)]. It states:

23 (1) The Lieutenant Governor may, by proclamation in Her Majesty's

name, prorogue or dissolve the Legislative Assembly when the Lieutenant

Governor sees fit.

[4]

This constitutional system derives from British practices that developed over

centuries and have been in place since this country began. Much of the system is

not to be found in constitutional enactments. Some elements of the system are

considered as constitutional conventions rather than laws enforceable by the courts.

However, the system is shaped and bounded by enactments and common law rules.

It has evolved and been heavily modified over the course of centuries through the

recognition of individual rights, democratic principles and practices, and practices of

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judicial oversight that have diluted executive authority, even as the role of

government in society has expanded.

[5]

This case concerns a constitutional innovation that was enacted by ordinary

provincial legislation in British Columbia in 2001. It has since been copied in

concept in 11 other Canadian jurisdictions; Peter W. Hogg, Constitutional Law of

Canada, 5th ed., supplemented to 2021 (Scarborough, ON: Thomson Reuters

Canada, 2007 ), s. 9:20, fn. 2. The legislation was the Constitution (Fixed Election

Dates) Amendment Act, 2001, S.B.C. 2001, c. 36. 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. Accordingly, the legislation amended the

CA(BC) to include the following as s. 23(2):

(2) Subject to subsection (1), a general voting day must occur on May 17,

2005 and thereafter on the second Tuesday in May in the fourth calendar

year following the general voting day for the most recently held general

election.

[6]

Explaining the legislation at second reading, Attorney-General Geoffrey Plant

said that the intention was to increase certainty and reduce the power of the

Premier. He said:

The government believes that this reform will bring about certainty and

predictability in our electoral process, with the result that government will

become more responsible and accountable to British Columbians. The goal,

if you will – the subtext goal of this legislation – is another step along the way

to dispersing the power that is concentrated in the office of the Premier under

the present rules of our political system.

A key element of that power under our system as it is presently regulated is

the Premier’s power to determine when a general election will be called.

Traditionally, that is the way it’s done. It’s the Premier who gets to decide

when a general election will be called. Of course, he has to go to the

Lieutenant-Governor, and the constitutional principles have to be adhered to.

But those constitutional principles recognize that in a parliamentary

democracy, it’s the government’s call, in a vast majority of cases, when an

election should be held.

It would be nice to think that our political tradition shows an unbroken

succession of Premiers who exercise that authority only when it is in the

public interest to call a general election. I don’t think that is our political

history. Rather, I think our political history indicates, at least in British

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Columbia, that Premiers use their power to determine the timing of the calling

of an election as an aspect of their re-election strategy.

They can accelerate election dates if it suits their political strategy, or they

can delay election dates if it suits their political strategy. In all of those cases

where there is an argument about the use of the timing of an election for

political purposes, there is at least an argument that the public interest in

certainty and predictability in the conduct of public affairs has been

subordinated to the private political interests of the Premier.

This bill will make a change in that historical practice by ensuring that the

general elections in British Columbia will be held not according to the political

agenda of a Premier bur rather according to a timetable which is fixed, which

is certain and which is predictable.

[Emphasis added.]

British Columbia, Official Report of Debates of the Legislative Assembly

(Hansard), 37-2, Vol. 2, No. 22 (21 August 2001), at 678.

[7]

The Attorney General also said that the legislation would preserve the

Lieutenant Governor’s power to dissolve the legislature and call an unscheduled

election, referring specifically to the situation where the Premier and existing

government had lost the confidence of the legislature. He said, at p. 677:

It’s important, however, to emphasize that this bill is drafted in a way that

preserves the constitutional prerogative of the Lieutenant-Governor to

prorogue or dissolve the Legislative Assembly and, in so doing, ensures that

should a government be defeated in the Legislative Assembly on a vote of

non-confidence, the Lieutenant-Governor may dissolve the Legislative

Assembly and call a general election immediately. Those are the traditional

powers of the Crown. That is the traditional prerogative of the Crown, and

nothing in this bill will undermine that basic rule of a constitutional democracy.

[Emphasis added.]

[8]

Three successive elections took place according to the four-year cycle

established by s. 23(2) of the CA(BC). There was an amendment in 2017 that

changed the fixed election date from the second Tuesday in May to the third

Saturday in October so that, in 2020, the next election was scheduled to take place

in October 2021. Section 23(2) now provides:

(2) Subject to subsection (1), a final voting day must occur on the third

Saturday in October in the fourth calendar year following the final voting day

for the most recently held general election.

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[9] In 2020, the Premier’s party had a bare minority of the seats in the Legislature

but was governing with the agreement of three additional members and thereby had

the confidence of the Legislature. The Province was labouring under a state of

emergency due to the Covid-19 pandemic. Nevertheless, the Premier wished to call

an election. He asked or directed the Lieutenant Governor to dissolve the

Legislature and call an election, and the Lieutenant Governor did so on September

21, 2020.

[10] The election was held on October 24, 2020, a year in advance of the

scheduled date stipulated by s. 23(2) of the CA(BC). The Premier’s party won a

majority of the seats in the Legislature and the Premier retained his position as the

head of the government.

[11] The petitioners object to the calling of the 2020 provincial election. They

submit that the Legislature was dissolved and the election called in the exercise of

statutory powers conferred under s. 23(2) of the CA(BC) and s. 24 of the Election

Act, R.S.B.C. 1996, c. 106. They maintain that the election was unlawful because

the Lieutenant Governor and the Premier were not authorized to exercise or cause

to be exercised statutory powers to trigger an election before the fixed date dictated

by s. 23(2) 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.

[12] The respondents (collectively, “BC”) say that the petitioners have

misunderstood the power exercised by the Lieutenant Governor in dissolving the

Legislature, and have misinterpreted s. 23 of the CA(BC). BC submits that the

Lieutenant Governor dissolved the Legislature in the exercise of an untrammeled

prerogative power that exists notwithstanding the enactment of s. 23 of the CA(BC).

BC further submits that, if any legal limit were intended in 2001, the provincial

Legislature lacked the constitutional authority to enact it. In any event, BC submits

that, properly construed, s. 23 does not impose any legal limit on the discretion of

the Premier to recommend dissolution of the Legislature, or on the discretion of the

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Lieutenant Governor to effect it. It contends that the only check on the calling of an

unscheduled election is not legal; it is political.

[13] In short, BC submits that, contrary to the stated intention in 2001, in British

Columbia it remains open to a Premier to call an unscheduled election, or to refuse

to call a scheduled election, as part of a re-election strategy. The timing of elections

remains legally unpredictable. Power remains concentrated in the office of the

Premier, just as it always has been.

[14] BC points to failed lawsuits brought in other Canadian jurisdictions that have

legislated for the establishment of a fixed election cycle. It says that those cases

make it clear that fixed election cycle legislation is essentially without binding legal

effect. The petitioners respond that the legislation considered in those other lawsuits

is different and those other cases are of no assistance in deciding this case.

[15] A question that arose during the hearing of the petition is whether this

proceeding is an application for judicial review governed by the Judicial Review

Procedure Act, R.S.B.C. 1996, c. 241 [JRPA]. The application is not brought

pursuant to the JRPA and, if it should have been, there are procedural and

substantive implications. The petitioners say that their application need not have

been brought as an application for judicial review. BC submits that the petition

should be dismissed on legal grounds and argues in the alternative that it should

have been brought as an application for judicial review.

Issues

[16] The petition raises the following issues:

1.

Does the Province have constitutional authority to enact legislation that

constrains the Lieutenant Governor’s prerogative authority to dissolve

the Legislature?

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2.

3.

4.

If the legislation is valid, is the Lieutenant Governor’s power to dissolve

the Legislature under s. 23(1) of the CA(BC) a statutory power or a

prerogative power?

Properly construed, does s. 23 of the CA(BC) constrain the power of

the Lieutenant Governor to dissolve the Legislature or the Premier’s

power to recommend a dissolution?

Is this proceeding an application for judicial review governed by the

JRPA?

Analysis

1.

Does the Province have constitutional authority to enact

legislation that constrains the Lieutenant Governor’s prerogative

authority to dissolve the Legislature?

[17] Canadian constitutional enactments say very little about the office and powers

of the Lieutenant Governor. According to its preface, the Constitution Act, 1867,

establishes a constitution “similar in Principle to that of the United Kingdom”.

Section 58 provides for the appointment in each province of a Lieutenant Governor

and subsequent provisions address the officer’s appointment and remuneration.

Section 4 of the Canadian Charter of Rights and Freedoms (which is part of the

Constitution Act, 1982) establishes a maximum period of five years between

provincial general elections, except in time of real or apprehended war, invasion or

insurrection. Accordingly, a Lieutenant Governor cannot ordinarily postpone

dissolution of the Legislature and the calling of a general election beyond the five-

year mark. For the most part, however, the legal role of the Lieutenant Governor is

determined by the common law.

[18] The Lieutenant Governor’s power to dissolve the Legislature is often termed a

prerogative power because it derives from a power historically exercised by English

Kings and Queens to dissolve Parliament. Prerogative powers and privileges are

those accorded by the common law to the Crown that have not been removed by

statute; Canada (Prime Minister) v. Khadr, 2010 SCC 3 at para. 34; Hogg, s. 1:9.

Democracy Watch v. British Columbia (Lieutenant Governor)

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The question is whether, under the Canadian constitution, it is open to British

Columbia’s legislature to legislatively constrain or curtail this particular prerogative

power.

[19] Pursuant to ss. 45 and 41(a) of the Constitution Act, 1982, the Province has

exclusive jurisdiction to “make laws amending the constitution of the province” but

not if the amendment is in relation to the office of the Lieutenant Governor. An

amendment of any provincial constitution that trenches on the office of the

Lieutenant Governor requires the unanimous assent of the House of Commons, the

Senate, and the legislatures of all 10 provinces (henceforth, the “unanimity rule”).

[20] Prior to the enactment of the Constitution Act, 1982, the same legislative

power to amend the provincial constitution, subject to the same restriction, was

found in s. 92(1) of the Constitution Act, 1867. At that time, legislation in relation to

the office of the Lieutenant Governor could only be enacted by the British

Parliament.

[21] BC accepts that many Crown prerogatives can be amended by statute, but

argues that the Lieutenant Governor’s power to dissolve the legislature is such a

fundamental prerogative of the Crown that any constraint on it “would purport to

change the powers of the Lieutenant Governor”. Accordingly, BC submits that any

legislative attempt to change it would amount to constitutional legislation in relation

to the office of the Lieutenant Governor, so that the unanimity rule is engaged by the

attempt.

[22] I disagree that any legislation that would constrain or curtail the prerogative

powers of the Lieutenant Governor to dissolve the Legislature is legislation in

relation to the office of the Lieutenant Governor. In my opinion, for the reasons that

follow, the unanimity rule is only engaged in the case of legislation that would

undermine the legal theory underlying the office or institution of the Lieutenant

Governor. Legislation addressing the circumstances in which the Lieutenant

Governor may dissolve the Legislature does not qualify.

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[23] I begin by identifying and rejecting two extreme points of view. The first is

that provincial legislation that would constrain or curtail any of the prerogative

powers of the Lieutenant Governor must be considered as legislation in relation to

the office of the Lieutenant Governor. This position imposes strict limits on a

province’s ability to tinker with constitutional practices crystallized at Confederation

in the 19^thcentury. I will refer to this as the “strict limits theory”. The second is that

the Province has free reign to legislate in relation to the prerogative powers of the

Lieutenant Governor, whose function is essentially ceremonial, so long as the office

itself is not abolished. This second theory would open the door to wholesale

constitutional transformation by ordinary legislation at the provincial level. I will refer

to this as the “transformation theory”. Neither theory is well supported by authority.

[24] The transformation theory was rejected more than a century ago in Re the

Initiative and Referendum Act, [1919] A.C. 935, 48 D.L.R. 18 (P.C.). This case

concerned a Manitoba statute that established a process for the enactment and

repeal of legislation by referendum. Speaking for the Judicial Committee of the Privy

Council (then Canada’s highest court), Viscount Haldane held that the statute was

constitutionally invalid because it “wholly excluded” the Lieutenant Governor from

the legislative process it established; D.L.R. at 25. Viscount Haldane reasoned that

the participation of the sovereign’s representative in the legislative process is

fundamental to that process in a Canadian parliamentary democracy modelled on

the British example. He stated, at p. 24:

Their Lordships are of opinion that the language of the Act cannot be

construed otherwise than as intended seriously to affect the position of the

Lieutenant-Governor as an integral part of the Legislature, and to detract from

rights which are important in the legal theory of that position.

[Emphasis added.]

[25] Initiative and Referendum Act establishes that legislation that would exclude

the Lieutenant Governor from the legislative process lies outside the competence of

a provincial legislature because it trenches upon the office of the Lieutenant

Governor. The Supreme Court of Canada came to the same conclusion in Re

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Manitoba Language Rights, [1985] 1 S.C.R. 721 at 777. Accordingly, the

transformation theory cannot stand.

[26] Both cases are, however, consistent in the result with a rejection of the strict

limits theory. Moreover, the reasoning in Initiative and Referendum Act provides

some support for the proposition that the limitation on provincial constitutional

amendments under s. 41(a) is only engaged by transformative institutional changes,

changes that would undermine “rights which are important in the legal theory of that

position”.

[27] Two other cases are worth mentioning, though they are ultimately unhelpful.

[28] Motard v. Attorney General of Canada, 2019 QCCA 1826 at paras. 90-92,

dealt with a parallel requirement under s. 41(a) of the Constitution Act, 1982

requiring the unanimity rule in the case of legislation that would affect the office of

the Queen. Speaking for the Court, Rancourt J.A., held that s. 41(a) of the

Constitution Act, 1982 protects the institution of the monarchy, and does not apply to

legislation that “did not alter the powers, status or constitutional role devolved upon

the Queen”. The legislation at hand in Motard formally recognized a change in the

British rules of royal succession; it did not pertain to the office of the Queen. So far

as the acceptance or rejection of the strict limits theory is concerned, Justice

Rancourt’s comments are ambiguous because the “institution” of the monarchy is

not synonymous with its powers or status. Political and legal institutions may

experience significant changes in their powers or status without a change in their

essential character.

[29] Conacher v. Canada (Prime Minister), 2009 FC 920, aff’d 2010 FCA 131,

leave to appeal dismissed, 2011 2101 (S.C.C.) involved an equivalent claim

to that advanced by the petitioners in this case (indeed, by one of the same

petitioners), in the context of federal rather than provincial legislation. It is one of the

failed lawsuits upon which BC relies in this case. Its present significance is that, at

first instance, Shore J. affirms the strict limits theory by expressing the view that any

tampering with the Governor General’s discretion to dissolve Parliament:

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… may not be done via an ordinary statute, but requires a constitutional amendment

under section 41 of the Constitution Act, 1982, which requires unanimous consent of

all provincial governments as well as the federal government before a change can be

made to the “office of the Governor General”. [at para. 53]

[30] Justice Shore’s conclusion on this point is an obiter dictum. He does not say

why any tampering with the Governor General’s discretion would relate to the office

of the Governor General, and this conclusion is not essential to his decision in the

case. In giving judgment dismissing the appeal, Stratas J.A. expressly declines to

express an opinion as to whether legislative language that would prevent the Prime

Minister from advising the Governor General to dissolve Parliament would be

constitutional: at para. 5.

[31] In my opinion, the strict limits theory is unattractive for three reasons.

[32] The first is textual. Section 41(a) refers to the “office” of the Lieutenant

Governor, not the “powers” of the Lieutenant Governor. In its entirety, s. 41 provides

as follows:

Amendment by unanimous consent

41 An amendment to the Constitution of Canada in relation to the following

matters may be made by proclamation issued by the Governor General under

the Great Seal of Canada only where authorized by resolutions of the Senate

and House of Commons and of the legislative assembly of each province:

(a) the office of the Queen, the Governor General and the Lieutenant

Governor of a province;

(b) the right of a province to a number of members in the House of

Commons not less than the number of Senators by which the province is

entitled to be represented at the time this Part comes into force;

(c) subject to section 43, the use of the English or the French language;

(d) the composition of the Supreme Court of Canada; and

(e) an amendment to this Part.

[33] The text of s. 41(a) focuses the reader’s attention on the institution rather than

a crystallized set of powers and privileges.

[34] The second has to do with the established approach to the interpretation of

constitutional enactments in the Canadian jurisprudence. The evolution of the

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institutions of parliamentary democracy, in Britain and more recently in Canada, is

one by which the prerogative powers of the Crown have been circumscribed by

legislation with “the effect of shrinking the prerogative powers of the Crown down to

a very narrow compass”; Hogg, s. 1.9. It is difficult to see why the process would

have frozen in 1871 (the date of British Columbia’s accession to Confederation) so

that any further constraint on the prerogative powers of the Lieutenant Governor

would lie outside provincial legislative competence and require a federal

constitutional amendment.

[35] It is often said that the Constitution Act, 1867 requires a broad and purposive

construction; it is “a living tree capable of growth and expansion within its natural

limits”; Edwards v. Attorney General for Canada, [1930] A.C. 124 (P.C.) at 136. The

scheme of the Constitution Act, 1867 is one that contemplates a significant degree

of local constitutional tinkering. Over the years, such tinkering in individual

provinces has included the substitution of unicameral for bicameral legislatures and

legislation in respect of the powers and privileges of the legislature; Hogg, s. 4.19.

[36] The third reason is conceptual. It is difficult to see why the rules for

amendment of the Canadian constitution should accord to Prince Edward Island, for

example, a veto over any modification of any of the prerogative powers of the

Lieutenant Governor in British Columbia. The exercise of prerogative powers in

British Columbia does not seem to be a matter in which other provinces and the

federal Parliament should necessarily be interested. To the extent supported by the

text, a sensible interpretation of s. 41 should be preferred.

[37] Having rejected the transformation and strict limits theories, I conclude that

legislation that constrains or curtails prerogative powers of the Lieutenant Governor

is not necessarily legislation in relation to the office of the Lieutenant Governor. The

validity of the constraint or curtailment must depend on its nature and magnitude.

Adapting Viscount Haldane’s language in Initiative and Referendum Act, the

question must be: does the legislation undermine the legal theory underlying the

office?

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[38] The legal theory of the office of the Lieutenant Governor is that it exists as the

locus of executive authority and, more important for present purposes, as an

institutional fulcrum through which the executive and legislative branches of

government interact. Dissolution and renewal of the legislature is necessary from

time to time, sometimes in circumstances of acute political controversy. The

Lieutenant Governor plays a part in this process, usually, but not universally, acting

on the advice of the Premier; Hogg, s. 9.19.

[39] The legislative authority of the Province in relation to the renewal of the

legislature is undoubted. By ordinary legislation, the Province establishes electoral

boundaries, sets rules for the conduct of elections, addresses political advertising,

and otherwise legislates for the democratic renewal of the government. In this light,

the Lieutenant Governor’s power to decide whether and when to dissolve the

Legislature is only one part of the complicated machinery by which representative

government is sustained in British Columbia.

[40] The manner in which elections are called and conducted has changed over

the years, and may be expected to change in the future. The United Kingdom

enacted fixed election-date legislation that prohibited dissolution of Parliament

except in certain specified circumstances: when 14 days have passed following a

vote of non-confidence in the government, if a new government has not secured the

confidence of the House of Commons, or when Parliament has resolved in favour of

a new election by a two-thirds majority; Fixed Term Parliaments Act, 2011, c. 14

(U.K.), ss. 2, 3. This legislation was later repealed and the Queen’s prerogative

powers were revived; Dissolution and Calling of Parliament Act, 2022, c. 11 (U.K.).

The office of the Queen in Britain appears to have been unaffected by the changes.

[41] In my opinion, the Lieutenant Governor’s power of dissolution is not so

fundamental to the vice-regal role that the constraint or curtailment hypothesized by

the petitioners will undermine the legal theory underlying the office. Even if the

petitioners are correct, the essential role of the Lieutenant Governor in bringing

about dissolution of the Legislature and renewal of the government will remain. The

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complex machinery of democratic renewal will continue to function within

constitutional bounds. In principle, the Province has constitutional authority to enact

legislation that constrains the Lieutenant Governor’s prerogative authority to dissolve

the Legislature to the extent alleged by the petitioners in this case.

[42] It follows that s. 23 of the CA(BC) is constitutionally valid, whether or not the

petitioners’ interpretation of the provision is correct.

2.

If the legislation is valid, is the Lieutenant Governor’s power to

dissolve the Legislature under s. 23(1) of the CA(BC) a statutory power

or a prerogative power?

[43] Section 23(1) of the CA(BC) expressly authorizes the Lieutenant Governor to

dissolve the Legislature. Repeating for ease of reference, it states:

23 (1) The Lieutenant Governor may, by proclamation in Her Majesty's

name, prorogue or dissolve the Legislative Assembly when the Lieutenant

Governor sees fit.

[44] On its face, the power of dissolution is a statutory power. However, BC

submits that the statutory power merely confirms, and does not displace, the pre-

existing prerogative power of dissolution, citing Ross River Dena Council Band v.

Canada, 2002 SCC 54 at para. 54, Askin v. Law Society of British Columbia, 2012

BCSC 895 at paras. 29-30, aff’d 2013 BCCA 233, leave to appeal refused, 2013

71613 (S.C.C.), and Independent Contractors and Business Association v.

British Columbia (Transportation and Infrastructure), 2020 BCCA 243 at

paras. 66-67, leave to appeal ref’d 2021 24815 (S.C.C.) [ICBA].

[45] As a general rule, where a statute expressly provides that an act may be

performed by the Crown, that statute governs the act’s performance. Any limitations

imposed by the statute must be respected, even if the Crown might have performed

the same act in the exercise of the Crown prerogative, without limitation, apart from

the statute; Delivery Drugs Ltd. v. Ballem, 2007 BCCA 550 at paras. 64, 66, leave to

appeal ref’d, [2008] S.C.C.A. No. 17.

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[46] None of the cases cited by BC say otherwise. In Ross River Dena Council,

LeBel J. spoke for a majority and stated that displacement of prerogative powers

“occurs only to the extent that the statute does so explicitly or by necessary

implication”: at para. 54. In Askin, Stromberg-Stein J. (as she then was) commented

that displacement of a prerogative power by a statutory power will only occur where

the statutory intention is clear and unambiguous: at paras. 29-30. In ICBA, the issue

was whether the existence of general statutory language authorizing a Minister to

enter into contracts rendered the Minister’s decision to enter into a particular

contract the exercise of a statutory power of decision for the purpose of the JRPA.

Justice Newbury, speaking for the Court, held that the statutory wording was not apt

to capture the formation of a contract.

[47] Section 23(1) of the CA(BC) is unambiguous. By its terms, it confers on the

Lieutenant Governor a power to dissolve the Legislature “when the Lieutenant

Governor sees fit”. There is no room left for the exercise of the former prerogative

power in relation to dissolution. Strictly speaking, the prerogative power has

become a statutory power. If there are limitations imposed by the CA(BC) on the

exercise of the statutory power, they must be respected.

3.

Properly construed, does s. 23 of the CA(BC) constrain the power

of the Lieutenant Governor to dissolve the Legislature or the Premier’s

power to recommend a dissolution?

[48] The modern approach to statutory interpretation requires the court to read the

words of a statute “in their entire context and in their grammatical and ordinary

sense” having regard to the scheme of the legislation, its purpose, and the

Legislature’s intention; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at

para. 21. Consideration of legislative purpose may not be used to supplant clear

statutory language, but is used to arrive at the most plausible interpretation of an

ambiguous statutory provision; Placer Dome Canada Ltd. v. Ontario (Minister of

Finance), 2006 SCC 20 at para. 23.

The legislation

[49] In its entirety, s. 23 of the CA(BC) provides as follows:

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General elections

23 (1) The Lieutenant Governor may, by proclamation in Her Majesty's

name, prorogue or dissolve the Legislative Assembly when the Lieutenant

Governor sees fit.

(2) Subject to subsection (1), a final voting day must occur on the third

Saturday in October in the fourth calendar year following the final voting

day for the most recently held general election.

(3) As an exception to subsection (2), if the campaign period for a

general election to be held under that subsection would overlap with the

campaign period for a general local election to be held under section 52

of the Local Government Act or the election period for a federal general

election to be held under section 56.1 (2) or section 56.2 of the Canada

Elections Act, the final voting day for the general election must be held

instead on a date to be specified under the Election Act that the

Lieutenant Governor in Council determines to be suitable after consulting

the Chief Electoral Officer, the Leader of the Official Opposition and each

leader of a recognized political party.

(4) In this section, "general election" and "final voting day" have the

same meaning as in section 1 of the Election Act.

[50] Section 1 of the Election Act provides the missing definitions, including a

further cross-reference to s. 27 of the Election Act:

"final voting day" means the day established by section 27;

…

"general election" means, collectively, elections called on the same date for

all electoral districts to elect all members of the Legislative Assembly;

[51] Section 27 is of interest because it distinguishes elections called under

s. 23(2) or (3) of the CA(BC) – that is, elections called on the established four-year

schedule – from other elections called in the discretion of the Lieutenant Governor

under s. 23(1), providing for a longer campaigning period in the case of the

unscheduled elections. Section 27 states:

Final voting day

27 (1) Final voting day for an election,

(a) in the case of a general election conducted in accordance with

section 23 (2) or (3) of the Constitution Act, and in the case of a by-

election, is the 28th day after the date on which the election is

called, and

(b) in the case of a general election that is not conducted in

accordance with section 23 (2) or (3) of the Constitution Act,

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subject to subsection (3) of this section, is at least the 32nd day but

no later than the 38th day after the date on which the election is

called.

(2) Final voting day for a general election described in subsection (1) (a)

must occur on a Saturday.

(3) Final voting day for a general election described in subsection (1) (b)

must occur on a Saturday, and the date under subsection (1) (b) is to be

determined accordingly.

(4) As an exception to subsections (2) and (3), if the day under

subsection (1) falls on a holiday, final voting day is the next day that is

not a holiday.

[52] Finally, s. 24 of the Election Act fills in machinery for the conduct of a general

election by requiring the Lieutenant Governor in Council to issue an order for a

general election to be held, directing the chief electoral officer to issue writs of

election for all electoral districts, setting the date of issue for the writs, specifying the

final voting day in accordance with s. 27 and s. 23 of the CA(BC), and directing the

return of the writs of election in due course.

The competing interpretations of s. 23 of the CA(BC)

[53] Acknowledging that subsection 23(1) of the CA(BC) affords the Lieutenant

Governor a broad discretion to dissolve the Legislature as he or she sees fit, the

petitioners maintain that the discretion is not unbounded. Instead, they submit,

subsections (1) and (2) must be read harmoniously so that the discretion under

subsection (1) is qualified by the schedule created in subsection (2). In their written

argument they state:

Understanding subsection 23(1) of the Constitution Act through the prism of

the responsible government conventions – in other words, that “sees fit” does

not create unbounded Crown discretion – supports the view that subsections

23(1) and (2) are to be read harmoniously and in a way that gives effect to all

the words of the provision. Subsection 23(1) implicitly recognizes that there

are factors informing the “sees fit” analysis; the responsible government

conventions supply one of these factors (that dissolution should follow a vote

of non-confidence), and subsection 23(2) provides another (that dissolution

should follow the schedule fixed by the Constitution Act). To ignore these

considerations in exercising the dissolution power is to breach the

Constitution Act.

[Emphasis added.]

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[54] The obvious challenge for the petitioners is that subsection (2) states that it is

“subject to subsection (1)”. The fixed election cycle established by sub-s. (2) is

expressly made subject to the Lieutenant Governor’s discretion to dissolve the

Legislature, necessitating an election, under sub-s. (1). If the discretion under

subsection (1) is unconstrained by sub-s. (2), it follows that BC is correct in its

contention that the Lieutenant Governor is free to dissolve the Legislature before the

scheduled date, or to delay dissolution beyond the scheduled date (subject to the

overriding constitutional requirement limiting the time between elections under s. 4 of

the Charter).

[55] The petitioners’ best answer to this challenge is as follows. They submit that

sub-s. 23(2) applies to both the Lieutenant Governor and to the Premier, as

someone who gives direction to the Lieutenant Governor, but the discretion afforded

under sub-s. (1) belongs to the Lieutenant Governor alone. According to this

argument, the Lieutenant Governor may freely dissolve the Legislature and call an

unscheduled election where that is required by constitutional convention, as occurs

where the Premier has lost the confidence of the Legislature and an election is

necessary. But, the argument continues, it is not open to the Premier to advise the

Lieutenant Governor to call an unscheduled election otherwise and, presumably, it

would not be open to the Lieutenant Governor to act on the Premier’s advice and

call an unscheduled election simply because the Premier wished it.

[56] The petitioners submit that their interpretation properly interprets the statutory

language in the context of the established conventions of responsible government.

They emphasize that their proposed interpretation would give legal effect to the fixed

election schedule established under sub-s. (2), consistent with the intention stated

by the Attorney General when the legislation was introduced in 2001.

Assessment

[57] In my opinion, while the petitioners’ argument is not without its attractions, it is

untenable for the following reasons.

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[58] The petitioners’ proposed reading of the statutory language is awkward. It

posits a critical distinction between the position of the Lieutenant Governor and that

of the Premier although the Lieutenant Governor is named in the statute, and the

Premier is not.

[59] Other courts interpreting very similar legislation have rejected the petitioners’

argument; Conacher; Engel v. Alberta (Executive Council), 2019 ABQB 490 at

para. 79, aff’d 2020 ABCA 462, leave to appeal ref’d, 2021 44584 (S.C.C.);

Democracy Watch v. New Brunswick (Attorney General), 2021 NBQB 233

[Democracy Watch NB]. In each of these cases, the fixed election-cycle legislation

expressly affirmed the continuing prerogative authority of the Lieutenant Governor or

Governor General to dissolve the Legislature or Parliament; Canada Elections Act,

S.C. 2000, c. 9, s. 56.1(1) (Conacher); Election Act, R.S.A. 2000, c. E-1, s. 38.1(1)

(Engel); Legislative Assembly Act, R.S.N.B. 2014, c. 116, s. 3(3) (Democracy Watch

NB). While this is a point of distinction, the reasoning in these cases features a

principled rejection of the petitioners’ proposition that a distinction should be drawn

between the discretion afforded the Lieutenant Governor and that of the Premier

offering advice or direction to the Lieutenant Governor. It is hard to see why it

should make a difference whether the discretion derives from the Crown prerogative

or, in British Columbia, from s. 23(1) of the CA(BC).

[60] In Conacher, the Federal Court of Appeal soundly rejected an argument that

the broad discretion afforded to the Governor General under s. 56.1 of Canada’s

Election Act should not also be afforded to the Prime Minister. Justice Stratas

stated, at para. 5:

[…] In our view, given the connection between the Governor General and the

Prime Minister [under constitutional conventions], the preservation of the

Governor General’s powers and discretions under subsection 56.1(1)

arguably may also extend to the Prime Minister’s advice-giving role. In any

event, it seems to us that if Parliament meant to prevent the Prime Minister

from advising the Governor General that Parliament should be dissolved and

an election held, Parliament would have used explicit and specific wording to

that effect in section 56.1. Parliament did not do so. […]

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[61] Justice Stratas added the following observation of considerable persuasive

value in the context of the present case:

[7]

If the section were interpreted in the manner suggested by the

appellants, the Prime Minister would be prohibited from advising the

Governor General that an election should be held because of dire need or an

event of grave importance. We do not accept that section 56.1 has that result.

Such a drastic result would require the clearest of statutory wording. This is a

further indication that section 56.1, as drafted, does not affect the Prime

Minister’s ability to give advice to the Governor General.

[62] In Engel, the Alberta Court of Appeal rejected an argument that, if a fixed

election cycle could be subverted at the will of the Premier, there was no purpose to

the legislation establishing the fixed cycle. The Court stated, at para. 26:

[…] Merely because the section does not provide a fixed and unalterable rule

does not mean it has no purpose.

[63] The Court in Engel went on to adopt the conclusion of Stratas J.A. in

Conacher that “the preservation of the Lieutenant Governor’s powers must, by

implication, have preserved the power of the Premier to give that advice” to call an

election, a decision it described as “quintessentially political” and not justiciable; at

para. 27.

[64] In Democracy Watch NB at paras. 15-17, Christie J. adopted the reasoning I

have summarized from the judgments in Conacher and Engel.

[65] In my opinion, the essential difficulty is that the case of a vote of non-

confidence is only the most obvious example of a circumstance in which a

dissolution followed by a general election may be necessary in the public interest. In

their written argument, the petitioners concede that “there are situations in which the

Crown prerogative of dissolution may be exercised outside of the fixed election

schedule” and submit that it is beyond the scope of the present proceeding to

exhaustively enumerate them. But if the situations cannot be enumerated in

advance, then who would be responsible to identify them in a world in which the

legality of the dissolution may be called into question in a court proceeding such as

this one? How would the relevant actors – the Premier and the Lieutenant Governor

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– determine if the circumstances were such that the Premier might lawfully advise

dissolution? In the absence of a vote of non-confidence, it would be a doughty

Lieutenant Governor who would dissolve the Legislature other than on the Premier’s

advice. If the petitioners are correct, unscheduled elections are still possible but

there will always be the prospect of a court application in the background, with the

fate of the government hanging in the balance.

[66] I agree with Engel that an application to determine whether the Premier was

justified in advising dissolution would confront the court with a quintessentially

political and non-justiciable question. Justiciability concerns the appropriateness

and ability of a court to deal with an issue; Hupacasath First Nation v. Canada

(Foreign Affairs and International Trade Canada), 2015 FCA 4 at para. 62; Black v.

Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (C.A.) at para. 50. An issue may

fail to be justiciable for various reasons; one reason that is often given is that the

issue is “a political question”. This is a short-hand to describe issues that are multi-

faceted, require controversial and open-ended consideration of the public interest,

and do not engage the application of legal rules or principles, all of which

characterize this hypothetical.

[67] I should add that the political questions doctrine does not prevent an alleged

infringement of Charter rights from being justiciable, even though the issue is

politically controversial; The Acadian Society of New Brunswick v. The Right

Honourable Prime Minister of Canada et al., 2022 NBQB 85 at paras. 15-33. The

petitioners do not identify Charter rights that would be engaged on this hypothetical.

[68] I do not think that s. 23 of the CA(BC) should be interpreted in a manner that

would foreseeably give rise to non-justiciable court applications concerning the

Premier’s advice to the Lieutenant Governor. This cannot be what was intended

when the legislation was enacted.

[69] The Attorney General’s explanation of the precursor to the current s. 23(2) of

the CA(BC) when it was introduced in 2001 can be considered as providing an

indication of the legislative intention, but it is not determinative; Ruth Sullivan,

Democracy Watch v. British Columbia (Lieutenant Governor)

Page 23

Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada,

2014), s. 23.87. That is especially so because, while the Attorney General spoke of

a legislative intention to remove from the Premier the power to call an early election

as part of a re-election strategy, on close examination, his remarks are pregnant with

an ambiguity. At p. 677, he stated:

… it would be convenient but possibly incorrect to assume that we now know

for a certainty the day on which every successive general election will be held

in British Columbia. We do know that the next election will be held on May

17, 2005. However, even that date is subject to the possibility that the

Lieutenant-Governor may exercise his or her prerogative to prorogue or

dissolve the assembly and call a general election.

[Emphasis added.]

[70] The Attorney General was speaking at the time as a member of a majority

government. A successful motion of non-confidence was barely foreseeable. His

remarks appear to have contemplated the possibility of early dissolution on some

other ground. The Attorney General did not address the implications, but they would

have been obvious on reflection.

[71] To summarize, for all of these reasons, the better view is that the Lieutenant

Governor’s power to dissolve the Legislature under s. 23(1) of the CA(BC) is

unaffected by the establishment of the fixed election cycle under s. 23(2). 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.

4.

Is this proceeding an application for judicial review governed by

the JRPA?

[72] In light of the legal conclusion I have come to, it does not matter whether the

proceeding is one governed by the JRPA. However, in case this matter proceeds

further and it turns out that I am mistaken in my legal analysis, I will address this

question.

[73] The petitioners seek the following declarations:

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1.

The Premier of British Columbia (the “Premier”) contravened section

23 of the Constitution Act […] by advising the Lieutenant Governor of

British Columbia (“Lieutenant Governor”) to dissolve the Legislative

Assembly on September 21, 2020 and hold a general election on

October 24, 2020;

2.

3.

The Lieutenant Governor improperly exercised her discretion under

section 23 of the Constitution Act by dissolving the Legislative

Assembly on September 21, 2020;

The Lieutenant Governor in Council improperly exercised her power

under subsection 24(1) of the Election Act […] to issue an order

causing a general election to be held on October 24, 2020[.]

[74] The petitioners do not seek consequential relief. To the contrary, if the Court

makes the declarations sought, they ask that there be a further declaration to the

effect that, notwithstanding any breaches of the CA(BC) and the Election Act, the

results of the 2020 general election and the legislative session that followed are

deemed for all purposes to have been valid.

[75] The declarations sought involve the exercise of statutory powers by the

Premier, Lieutenant Governor, and Lieutenant Governor in Council under the

CA(BC) and the Election Act. In my opinion, they concern statutory powers of

decision, as defined in s. 1 of the JRPA, because they engage the legal rights,

powers and privileges of the members of the Legislative Assembly on September

21, 2020 and subsequently.

[76] In consequence, this proceeding is in substance an application for judicial

review within the contemplation of s. 2(b) of the JRPA, because it is an application

for declarations in relation to the exercise of a statutory power.

[77] An application for judicial review is an application on the record that was

before the decision-makers whose decision is under review; Air Canada v. British

Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCCA 387 at

paras. 34-35. The record considered by the Premier and the Lieutenant Governor in

recommending and proclaiming dissolution of the Legislature and in causing an

election to be held is not before the Court. This is not a technical irregularity. If the

petitioners were on solid legal ground in their interpretation of s. 23 of the CA(BC), it

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would probably be necessary to consider whether the Premier and Lieutenant

Governor acted reasonably; Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 at para. 10. That assessment is not possible without the

record.

[78] Because this is an issue that only came to the fore in the course of the

hearing, if I had found that the petitioners were on solid legal ground, I would not

have dismissed the petition on procedural and evidentiary grounds. I would have

offered both parties an opportunity to consider what further materials should be

placed before the Court, and to make submissions in light of that material. None of

this is necessary in view of the conclusions I have come to.

Disposition

[79] For these reasons, the petition is dismissed.

[80] The petitioners ask that there be no order as to costs and seek leave to

address this point in further submissions. BC asks that the petition be dismissed

with costs. In light of authorities such as Force of Nature Society v. City of Surrey,

2022 BCSC 824, and the general practice of the court in respect of costs on

applications for judicial review, there is room for argument as to whether costs

should be ordered in this case. If necessary, the parties may make arrangements

through the registry to speak to costs at 9:00 am on a day I am sitting in Vancouver.

Prior to the hearing, I ask that the parties exchange and file written submissions, not

to exceed five pages in length.

“Gomery, J.”