The bloody truth!

" Lieutenant Governor within her Right to Force Election to Determine Government I am not a constitutional lawyer, however, I have spent a great deal of the last thirty years studying our Constitutions, both federal and provincial, particularly as they impact government and the rule of law, and I worked at both levels of government as Leader of the BC Liberal Party during the Meech Lake and Charlottetown Accords. As Leader of the PDA, I also worked as Constitutional Advisor to NDP Premier Glen Clark and authored papers on BC’s role in Canada. I should also say at the outset that I have come to believe that the matter of the completion of the Kinder Morgan pipeline is at the heart of all of this NDP/Green motivation to cooperate. I fully suspect that within the next few weeks, information will come to light that will draw into question the extent to which the Greens and NDP have been complicit with financial interests that are directly served by the termination, or even lengthy delay, of the Kinder Morgan pipeline. If that happens, the decision faced by the Lieutenant Governor, and ultimately the voters, may be less difficult to make. My suspicions aside, and in the context of my Constitutional interest, I offer my thoughts on the 2017 Confidence and Supply Agreement between the BC Green Caucus and the BC New Democrat Caucus and the argument by leaders Horgan and Weaver that they can demonstrate the Confidence of the House for the next four years, or, basically, that they can work together to form a government. After the BC Liberals won minority government on May 9, with 43 seats to the NDP’s 41 seats and the Green Party’s 3 seats, Lieutenant Governor Judith Guichon invited Premier Clark to continue to govern “interregna”. Now, the Lieutenant Governor will extend to Premier Clark the invitation to convene the legislature to determine whether or not Premier Clark can command the confidence of the House and govern as a minority government. In advance of that process, NDP Leader John Horgan and Green Leader Andrew Weaver entered into what they have called the 2017 Confidence and Supply Agreement and have presented that agreement complete with signatures of all forty-one NDP MLAs and all three Green MLAs. This agreement is founded upon the argument that if one combines the percentage of NDP/Green popular vote, the combined percentage (57.12%) constitutes a mandate for change of government. Further, the basis for that assessment lies in the fact that the Liberal Party has been in office in BC for sixteen years. Both are specious arguments, completely without foundation in principle, past practice or parliamentary convention in Canada. In the first instance, under our Election Act, the percentage of popular vote is of no consequence in determining who wins government. That is determined by the number of seats gained. In 1996 for example, the NDP under Leader Glen Clark won a majority government with 39 seats (there were fewer electoral seats in total at the time) and 39.45% of the popular vote. The BC Liberals under Leader Gordon Campbell won 33 seats despite his party gaining 41.82% of the popular vote. Both the Reform Party and Progressive Democratic Alliance won seats and the combined vote of non-NDP was 57.62%. This number was irrelevant in answering the question, “who is the government?” and certainly no one could argue that this meant that 57.62% of voters voted for change, which is what the NDP/Greens are saying about almost the same vote, 57.12%, that did not vote for the BC Liberals. When a voter casts his or her ballot, that voter is not assigning that vote to anyone other than the individual for whom they are voting. There is nothing to suggest that votes cast for unsuccessful candidates can be counted or considered in determining any mandate for government other than what we do now: the party with the most seats is the government. Neither John Horgan nor Andrew Weaver can claim votes for candidates who lost in their ridings. For example, neither of them can point to a riding where a Liberal MLA was elected and say ‘all the other votes are mine’. In the second instance, the fact that the Liberal Party has held office in BC for the last sixteen years reflects the will of BC voters in each of the last four elections, and has provided a legal mandate to govern under the Election Act. Just because the NDP consider the outcome unsatisfactory does not justify arbitrary and fundamentally undemocratic action that seeks to minimize or eliminate the voices of the 43 elected Liberal MLAs in this most recent writ. Given we have a Liberal minority government and considering, when seeking a mandate, Green Party Leader Andrew Weaver told prospective voters that he would be prepared to try to make minority government work regardless of which party won the most seats, the Lieutenant Governor (LG) would be well within her right to ask Dr. Weaver why he only met with Opposition Leader Horgan, and didn’t meet with the Premier. The actions of Weaver contradict the commitment he gave to voters, and draws into question his integrity, because he has entered into a binding agreement with the NDP before he has seen or heard what the returned Liberal government may, in a minority situation, have amended to respond to what they heard and learned from the voters in the last election. Instead, Weaver has already committed, as a first order of business, to defeat the Liberal minority government in favor of a backroom deal made with the NDP. To be clear, Andrew Weaver and the Greens did not have to support either the NDP or Liberals in any formal way. His choice to prop up the NDP is perplexing, as it weakens his position in the short term and likely has done terminal damage to his party in the long term. Where he had the opportunity to bridge the polarization and bring parties together in an attempt to promote more civil discourse and action, he has chosen to do the opposite and exacerbate the division within the House by putting his name and those of his two colleagues to the 2017 Confidence and Supply Agreement, which is built upon specious argument and is filled with omission and contradiction. The most obvious and glaring omission in the agreement is the complete lack of reference to, or recognition of, the 43 sitting Liberal MLAs. The document reads as though there are only two parties, the NDP and Greens, that warrant consideration to make government work. That omission alone should give the LG pause to consider the veracity of the document with which she has been presented. The LG’s dilemma is whether or not to hand over government and a fifty-billion-dollar budget to a group whose 44 combined seats, NDP and Greens, doesn’t reflect a regional balance within the province. Only four seats are not on Vancouver Island or inside the GVRD. By contrast, the 43 Liberal seats are made up of MLAs that represent all regions of the province, eighteen from the interior, North, South, and Central BC, with the remaining twenty-five representing ridings on Vancouver Island, Squamish, the Fraser Valley, Surrey, Delta, Richmond and Greater Vancouver. This is a particularly important matter for the LG to consider in light of the fact that roughly 80% of BC resource revenues come from ridings that will not be represented by this NDP/Green arrangement. Indeed, the LG will have read that a government formed and directed by the terms of this agreement will be particularly hostile to the industries that employ the vast majority of workers in those regions that will be disenfranchised. I suspect the LG will take into consideration that of the 18 MLAs elected in those wealth generating ridings, all but four were elected with a plurality (greater than 50%) and the lowest return amongst the four was 41.99% of votes cast. This agreement is silent on many issues that are critical to the stability of government. It mentions nothing with respect to the issue of the appointment of an MLA to the role of Speaker, or the appointment of an MLA to the role of Committee Chair. If, as expected, both of these roles are from the ranks of the NDP, then regardless of the support of the Green MLAs, the NDP will always have one fewer MLA on every vote in Committee Stage. They will not be able to pass any of their business in Committee, and the Speaker will have to break tie votes on every item of business in the House. This means even with perfect attendance of all MLAs at all times, the legislature will be dysfunctional. NDP MLA Mike Farnworth has said that the NDP plan to arbitrarily change the Standing Orders to favour the NDP when votes come in committee stage. That smacks of government by fiat, making an absolute mockery of the claims by both the NDP and Greens that this agreement “makes democracy work for the people” and will likely be met with justifiable outrage by citizens at large, and likely a stalled government. The role of the 43 Liberals MLAs is a critical matter that the LG must consider, as government must proceed in an orderly manner and should not be subjected to tie votes that consistently require the Speaker’s involvement to break, or committee stage business, where those opposite to government can bring government to a halt, knowing it lacks sufficient numbers to move controversial legislation into law or have controversial spending approved. The document dictating the Green/NDP alliance also lacks a definition section, leaving us to imagine what some of the conditions of Greens support on Confidence motions really means. For example, in the general undertaking the document pledges BC Green support provided “the principle of good faith and no surprises has been observed.” What exactly is a “surprise”? Remember our government hangs on that language. Similarly, the agreement provides that both parties will ensure that they have all their sitting members at all sittings of the House “as reasonable”. What constitutes “reasonable”? If an MLA has a family crisis and can’t attend, is that reasonable? What if any of them have a three-month illness? Is it reasonable that the business of British Columbia is delayed until the individual is well enough to return? With one MLA out, they lose the vote. What if an MLA decides for personal reasons he or she has to resign? Then what? Then we have a by-election. British Columbia has just elected its 41st Assembly, or government. Of the forty preceding this one, thirty eight had by-elections, and only two did not, and both of those governments lasted less than three years. That fact of an almost certain by-election seems to have been completely overlooked by this Agreement. The NDP and Greens should have planned for one or more by-elections, and yet the document they are putting in front of the LG for her consideration to make them government is silent on this issue. What if the Liberals won one of the by-elections? Then the Liberals would have a majority, and the NDP/Green agreement would be irrelevant. On the other hand, if there are several by-elections and the NDP win, then why do they need the Greens? And, what does the NDP/Green agreement say about the two parties contesting any by-election? Do the Greens sit them out? Do they campaign against the party they are propping up in government? In the event that a by-election is held in a riding where the Liberals lost in the general election by a very small number of votes, do the NDP and Greens reconvene the backroom discussions to see which of the two stands the best chance to defeat the Liberals and keep their tenuous government in place? Or do the Greens continue in this vein of pure self-interest and work hard to defeat the NDP in order to maintain their power over them? The NDP/Green agreement arbitrarily defines what will and what will not be considered a Confidence motion. It also arbitrarily decides that the Green Party, despite having only three seats, will be considered an official party in the House, boosting Weaver’s salary by $20,000 and both his colleagues by $15,000 because one will be considered the House Leader and the other the Party Whip, and it delivers them a large research budget and more money for extra staff on top of the normal staff requirements for official party status. For decades, official party status required four seats. How much motivation did all this extra money add to Weaver’s quick agreement to sign? The matter of a three-member caucus requiring a House Leader and a Party Whip is beyond ridiculous. The fact that the Green Party even has a Whip must be really galling to those who voted Green, because they were told that Green Party members were not subject to being whipped for votes (which means being forced to vote along party lines). The more important issue is that the designation of official party status in the Legislature is currently four members. Changing that status is generally done by The Legislative Assembly Management Committee (LAMC) and is governed by an Act under the same name. The 43 members sitting on the Liberal benches will have representation on this Committee, and must be present for quorum to vote on whether to enact what the NDP and Greens have just arbitrarily agreed to do. That is of course, unless like their plan to arbitrarily change the Standing Orders, they plan to dictate the change without refence to the governing Act. If for some reason that third party status isn’t agreed to, does that constitute a “surprise”? I suspect that the LG may also give weight to the fact that neither the NDP nor the Green Party won the last election. In addition, Horgan refused to acknowledge that he lost the election. In fact, before he is even sworn into office as Leader of the Official Opposition, Horgan is writing letters to the Chair of BC Hydro on the matter of Site C as if he is already premier. Horgan campaigned on the lack of integrity of the independent review bodies for major projects, constantly making allegations of government interference and ‘corruption’. Obviously, those standards don’t apply to Mr. Horgan who said that he will refer Site C to the BCUC for a review. Under the “corrupt” system, that review takes nine months to one year of study. Mr. Horgan will order it complete within six weeks. The two parties have agreed, without any consultation or mandate from the electorate, to grant themselves an additional six months in office, calling for the election in the fall of 2021. Further, they will, through a two-party consultation process with the public, determine what form of proportional representation will be put to a binding referendum in the fall of 2018. It’s unclear under what law that binding vote will be administered, and once again, refusing to convene an all-party committee to advance this matter signals that the NDP and Greens plan to govern through imposition rather than democratic procedure. That, surely, must give the LG pause for concern. I seriously doubt the Horgan/Weaver plan to change our electoral rules will go without a court challenge. The very fact that Weaver thinks it acceptable that 43 elected members are not being consulted or included in the bi-lateral agreement on electoral reform is appalling. For all of these reasons, I suspect that the Lieutenant Governor will do what she is best charged to do, which is to put this whole matter back into the hands of the people, where I believe the ballot question will be much more clearly defined than before. She will call for an election. " References: ( https://m.facebook.com/notes/gordon-fdwilson/lieutenant-governor-within-her-right-to-force-election-to-determine-government/10158854371230296/ )