Court of Appeal Provides Clarity in BC’s Election Statute

In Democracy Watch v. British Columbia (Lieutenant Governor), 2023 BCCA 404, the British Columbia Court of Appeal considered the issue of whether the Premier and Lieutenant Governor had violated section 23 of the British Columbia Constitution Act, R.S.B.C. 1996, c. 66 (the “Act”) by dissolving the Legislature and calling an election prior to the fixed election dates set out in the Act.

Section 23 of the Act states:

23 General Elections

(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.

Prior to 2001, s. 23 of the Act mirrored the requirement in s. 4(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, that members of the Legislative Assembly hold their seats for a maximum of five years. In 2001, the Constitution (Fixed Election Dates) Amendment Act, 2001, S.B.C. 2001, c. 36 repealed portions of the section, replacing them with provisions setting out fixed election dates on a four-year cycle. In November 2017, the Act was amended further to move the provincial election date from May to October.

The next election was thus scheduled to occur on the third Saturday of October 2021. However, in 2020, a year prior to the scheduled election, the Premier asked the Lieutenant Governor to dissolve the Legislature. This was done on September 21, 2020, and an election was held on October 24, 2020.

One day before the election, the appellants filed a petition in the British Columbia Supreme Court seeking declarations that that the Premier and the Lieutenant Governor contravened s. 23 of the Act. The chambers judge dismissed the petition on the basis that s. 23(2) does not constrain the Lieutenant Governor’s power to dissolve the Legislature or the Premier’s power to recommend dissolving the Legislature.

On appeal, the Court held that the chambers judge did not err in interpreting s. 23 of the Act as imposing no limits on the power of the Lieutenant Governor to dissolve the Legislature or the Premier to recommend dissolution.

With respect to the meaning of s. 23 of the Act, the Court held that its purpose, as evidenced by the Legislature’s choice of words, was to confirm that elections must be held on fixed dates every four years rather than within five years as required under the Charter. However, this is subject to the Lieutenant Governor’s exercise of her power to dissolve the Legislative Assembly on an earlier date. s. 23(2) establishes a presumptive, but not absolute, election date.