Introduction
Much confusion is swirling around in B.C. regarding our current political situation, and who is in charge of running the B.C. government. I will attempt to clarify some of this, although many details remain murky.
Disclaimer: I am not a lawyer. I am a public interest advocate, writer, and publisher. I will provide a brief introduction to legislation regarding elections and how parliamentary democracy works in B.C to assist people in understanding how Members of the Legislature (MLA's) are elected, and become Parliamentarians.
I will also provide an analysis of what I understand about who is currently in charge of the B.C. government. This is only an analysis. There may be additional details that I am not currently aware of at the present time when I'm writing this article. I will update and/or edit this article should I receive additional information from credible sources.
The 41st Parliament and BC Legislature Was Dissolved
On September 21st, 2020, the 41st Parliament in B.C. was dissolved when Lieutenant Governor, Janet Austin, accepted Premier John Horgan's request to call an election for October 24th, 2020.
When the Lieutenant Governor of B.C. accepted the election call request, pursuant to the Constitution Act and Election Act of B.C., this led to the dissolution of the B.C. Legislature. The impact of that includes the following:
1. It ended the 41st Parliament of B.C. All business of the House came to a close. This call ended all government Steering committees and legislative work that had been ongoing, including any Bills that were still in progress.
2. All Members of the Legislature (MLA's) who had been elected in 2017 to form the 41st Parliament ceased to become MLA's because the Legislature was dissolved.
3. The impact of this election call is that B.C. no longer had any more Ministers of the Crown by law. There was also no longer a BCNDP Executive Cabinet. However, as of today's date, November 17, 2020, the B.C. government continues to provide a link to a website that lists the previous BCNDP cabinet and their respective Ministerial assignments. Some of those individuals did not run in the 42nd election.
The Ministerial and Premier's email addresses listed for these individuals are not currently operational.
4. The constituencies of each MLA were dissolved and their offices were supposed to be closed, because the MLA no longer represented the people in their ridings due to the dissolution of the B.C. Legislature.
Seven members of the BCNDP Cabinet Executive announced they would not be running for office again. Its become a lot more clear why people may have made that proactive decision in light of what's currently happening, and events that will unfold in the future.
These individuals are all still listed as Cabinet Ministers on the B.C. government website even though they are no longer MLA's. Their former Ministries no longer have Ministers appointed as members of Cabinet.
There appears to be some sort of exception -- Carole James, former Minister of Finance, who did not run in this election, who was reportedly asked to play some sort of caretaker and oversight role until the next government was sworn in.
Sources: B.C. Government. Executive Council of the B.C. Government: Cabinet Ministers of B.C. Retrieved from: https://www2.gov.bc.ca/gov/content/governments/organizational-structure/cabinet/cabinet-ministers.
Carrigg, D. (2020) Seventh B.C. NDP cabinet minister calls it quits as possible election looms. Vancouver Sun. Retrieved from: https://vancouversun.com/news/sixth-b-c-ndp-cabinet-minister-calls-it-quits-as-election-looms.
Harnett, C. (2020). Until final results are in, machinery of government continues in caretaker mode. Times
Colonist. Retrieved
from: https://www.timescolonist.com/news/local/until-final-results-are-in-machinery-of-government-continues-in-caretaker-mode-1.24226798.
How Government Work Continues During a Provincial Election in B.C.
Having been a direct B.C. government employee during previous elections, what generally happens after an election call, and prior to Elections BC confirming the final votes, is that the "wheels of government," and the day-to-day business of running the existing Ministries under the previous Parliament, continues to be managed by the bureaucracy. This is primarily Deputy Ministers, and other executive level bureaucrats in each ministry.
In the 2020 Election, there appears to have been a change to the way things usually function during an election, and prior to the swearing in of the new MLA's and party which will form a minority, or majority government in the next Parliament. In this case, this will be the 42nd Parliament. The changes that have occurred in this election will be outlined below.
Elections Act and the Constitution Act of B.C.
There are two key pieces of legislation in B.C. which govern the rule of law with respect to elections, Parliament and the Legislature -- the Elections Act of B.C. and the Constitution Act of B.C. I will outline core elements of both which are important to understanding, and contextualizing the current actions of the B.C. government, and particularly John Horgan and Adrian Dix.
Constitution Act of B.C.
This Act articulates, defines, and gives definition to Parliament and the Legislature in B.C. It defines who is legally considered to be Members of the Legislature, what is an Executive Council, and how these individuals become members through election.
Executive Council
9 (1)The Executive Council is composed of the persons the Lieutenant Governor appoints, including the Premier of British Columbia, who is president of the Executive Council.
(2)The Lieutenant Governor in
Council must from among those persons appointed under subsection (1) designate
(a)those officials with
portfolio and must designate the portfolio for each official, and
(b)those officials without portfolio.
17 There must be in British
Columbia a Legislative Assembly constituted as provided by this Act, and the Lieutenant
Governor has the power, by and with the advice and consent of the Legislative
Assembly, to make laws in and for British Columbia in all cases, subject to
the Constitution Act,
1867, and to the order of Her late Majesty in Council.
Members represent electoral
districts
18 (1)For returning members of the
Legislative Assembly, there are to be the number of electoral districts
established by the Electoral Districts Act, with the names, boundaries
and areas determined in the manner provided for by the Electoral Boundaries Commission Act.
(2)The Legislative Assembly consists of the members elected in the manner provided for by the Election Act.
(3)A member represents the
electoral district for which the member was elected.
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
general voting day must occur on the third Saturday in October in the fourth
calendar year following the general voting day for the most recently held
general election.
Oath of allegiance
24 (1) A member of the Legislative Assembly must not vote or sit until he or she has taken and subscribed the following oath before the Lieutenant Governor, or some other person authorized by the Lieutenant Governor to administer the oath:
"I,
A.B., swear that I will be faithful and bear true allegiance to Her Majesty
Queen Elizabeth II [or her successor], her heirs and successors, according to
law. So help me God."
Conditions that must be met to be appointed as a Member of Executive Council and a Minister of the Crown in B.C.
This Act clearly establishes that in order to be considered a member of the Legislature, Executive Council and appointed as a Minister in a current Parliament several conditions must be met:
1. A general election took place in B.C. during a particular time frame -- from dissolution of Parliament to a specific date for voting and the polls being closed.
2. Writs of election must be returned by Elections BC. This ends the election period.
3. Final vote count results are announced by Elections BC. The successful candidates, by vote, are also confirmed to have been elected in a specific electoral district.
4. An individual must swear an Oath of allegiance to the Crown (represented by the Lieutenant Governor) prior to sitting as a Member of the Legislature (MLA).
5. The Lieutenant Governor must appoint and designate the Premier, who becomes President of the Executive Council and Cabinet.
6. The Lieutenant Governor must appoint, designate, and assign MLA's to Executive Council portfolios (Ministries). They become Ministers of the Crown upon this official appointment.
Elections BC and the October 24th Election for the 42nd Parliament in B.C.
Elections BC is the statutory agency in BC that is responsible for:
- conducting provincial elections;
- counting ballots;
- declaring final counts; and
- confirming the candidates who were elected by winning the most votes in their electoral districts in our "First Past the Post" (FPTP) electoral system.
The MLA's elected and sworn in after winning their electoral ridings in the 2020 provincial election will form the 42nd Parliament in B.C. They will be members of the B.C. Legislature for the next four years.
The 2020 provincial election broke records for having one of the lowest voter turnouts in B.C. history. Approximately only 52.4% of registered voters showed up to cast ballots. This was the lowest electoral participation rate since 1928.
The people of B.C. and democracy were the losers in this "pandemic election." This will become quite clear as the BCNDP comes together to form the next government -- as a majority this time.
Source: Larsen, K. (2020). B.C. election turnout sinks to all-time low. CBC News. Retrieved from: https://www.cbc.ca/news/canada/british-columbia/b-c-election-turnout-sinks-to-all-time-low-1.5777084.
Elections Act of B.C.
This Act articulates how elections take place in B.C. Key aspects of this legislation include the following:
Order for a
general election
24 (1)For a general election to be held, the Lieutenant Governor in
Council must issue an order under this section that
(a)directs the chief electoral
officer to issue writs of election for all electoral districts,
(b)sets the date of issue for
the writs of election, which must be the same for all writs,
(c)specifies the general voting
day for the election in accordance with section 27 of this Act and section
23 of the Constitution Act, and
(d)directs that the writs of
election be returned in accordance with this Act.
Election
called when writ of election issued
26 (1)On receiving an order of the Lieutenant Governor in Council under
section 24 or 25, the chief electoral officer must
(a)issue the writ or writs of
election in accordance with the order,
(b)transmit each writ to the district electoral officer to whom it is addressed, and
(c)arrange for the writ or writs to be published in the Gazette.
(2)A writ of election must be substantially in
the form of Form 1 as set out in the Schedule to this Act and must include the
following:
(a)the
dates for the start and end of the nomination period for nominations under
section 56;
(b)the
date of general voting day for the election;
(c)the day
for the return of the writ, being the date on or before which the district
electoral officer is to certify to the chief electoral officer the name of the
individual elected as member of the Legislative Assembly.
(3)For the
purposes of this Act, an election is called when the writ for the election is
issued in accordance with the applicable order of the Lieutenant Governor in
Council under section 24 or 25.
The Elections BC website states the following on its page, Preliminary Voting Results:
"Final voting results will not be available until after the conclusion of final count. The timing of final count will be announced as soon as possible following the completion of initial count."
They also state the following:
- During all voting opportunities, there were also an estimated 85,000 certification envelopes containing absentee ballots cast across the province.
- As of 8:00pm October 24, 2020 an estimated 525,000 vote-by-mail voting packages have been received. This does not include any vote-by-mail packages that have been dropped off at district electoral offices or voting places.
- Absentee and vote-by-mail ballots are counted at final count.
- During preparation for final count, district electoral officers will confirm voting results and certification envelope counts from absentee and vote-by-mail voting that was reported during initial count.
- Adjustments may be made to accurately reflect election night results, and the screening of certification envelopes.
- Results will not be finalized until final count is completed.
(Source: https://electionsbcenr.blob.core.windows.net/electionsbcenr/GE-2020-10-24.html).
Update from Elections BC About Final Ballot Counting
On November 8th, 2020, Elections BC announced the final ballot count in the October 24th election. The final voting results are found at the link below for each riding in B.C. You can view the number of votes each candidate received in each of the constituencies in the province.
Source: 2020 Provincial General Election. Final Voting Results. Retrieved from: https://electionsbcenr.blob.core.windows.net/electionsbcenr/GE-2020-10-24_Candidate.html.
Who is Currently in Charge in B.C.
This is where things get murky. My analysis is that -- according to the Constitution Act, there is currently no government that is legally in charge in B.C. It remains the bureaucracy that are running day-to-day operations in B.C. As noted above, Carole James is also playing some unclear role over this last couple of months since the writ of election was dropped, and the B.C. Legislature was dissolved.
Elections BC provides a helpful page, "Key Election Dates," which outlines a timeline for the 42nd election.
They identified Monday, November 16 to Tuesday, November 17th, 2020 as "Return Day" stating the following explanation for this:
"Writs of election are returned to the Chief Electoral Officer, ending the election period. For most electoral districts, the writs of election will be returned on November 16 or 17, depending on when they finished final count. The writ in West Vancouver-Sea to Sky will be returned following the conclusion of a judicial recount in that electoral district."
Source. Elections BC. Key Election Dates. Retrieved from: https://elections.bc.ca/provincial-elections/key-election-dates/.
John Horgan and Adrian Dix Representing Themselves As MLA's, Members of the Executive Council, and Premier and Cabinet Minister
Prior to the final ballot votes being completed, the writs of election being returned, and successful candidates in each riding being announced and confirmed by Elections BC, John Horgan, and Adrian Dix, have both been publicly identifying themselves, respectively as "Premier," and "Minister of Health."
These claims were also advanced by several members of the B.C. media, who repeatedly referred to them in these official roles on social media, and in various media outlets in B.C.
Mr. Dix has been involved in numerous public updates and interviews about COVID-19, representing himself to the people of B.C. as the Minister of Health during the time period when ballots were still being counted, and before the election results were finalized, and confirmed by Elections BC.
Mr. Dix has refused to respond to my public questions about why he was presenting himself in this way during the period of time when Parliament is currently dissolved, the election was still in progress, and prior to him being sworn in as a MLA in the 42nd Parliament. I attempted to email him as well, and did not receive a reply from him, or any constituency assistants, because this office no longer exists.
Mr. Horgan has also refused to answer my public questions to him about why he has been calling himself Premier prior to the final ballot count and announcement confirming the final ballot count and election results from Election BC. Mr. Horgan has been heavily involved in public relations (PR) activities on social media, through various media outlets, and representing himself as "Premier Horgan" to the public in these forums.
Mr. Horgan also sent out social media posts announcing his re-election, and received many public congratulatory messages before the election was officially concluded.
The B.C. government has not provided any announcements about Mr. Horgan, or Mr. Dix being re-elected, being sworn in by the Lieutenant Governor, or being assigned their respective official roles as Premier, and Minister of Health.
However, on October 26th, 2020, two days after voting was finished the Premier's Office, provided a written statement from "Premier John Horgan," acknowledging Andrew Wilkinson's resignation as Opposition leader." Numerous other media releases have been released under the name of "Premier John Horgan" from the Premier's Office.
Sources: B.C. Government. (2020). Premier's statement on Andrew Wilkinson's resignation as Opposition leader. Retrieved from: https://news.gov.bc.ca/releases/2020PREM0089-001893.
B.C. Government. (2020). Office of the Premier. Retrieved from: https://news.gov.bc.ca/office-of-the-premier.
Writs of Election Have Not Been Returned Yet in B.C.
In a CBC article dated, November 9th, 2020, Mr. Horgan is referred to as Premier. The following statements were attributed to him in this story:
"Horgan focused on issues related to the pandemic during the conference, but also confirmed he spoke with Lt.-Gov Janet Austin on Sunday at which point she asked him to form government — an exchange officially kick-starting the NDP's second term.
The premier said he hopes to announce his new cabinet picks in the weeks ahead with the goal of bringing the legislature back before Christmas, though the rising number of COVID-19 cases is hampering the ability to bring politicians together to swear them in as MLAs and, for some, as new cabinet members."
Source: Schmunk, B. (2020). B.C. risks return to severe pandemic restrictions if cases don't come down, premier says. CBC News. Retrieved from: https://www.cbc.ca/news/canada/british-columbia/john-horgan-bc-covid-19-1.5795551.
In a media article, dated November 13th, 2020, Richard Zussman of Global Media, speculated on who would be appointed to the new BCNDP Cabinet. Key details outlined in this article included the following:
"B.C. Premier John Horgan has secured his majority government and now he is building his cabinet.
The expectation is a cabinet will be announced before the end of November.
The positions that have been left open are finance, jobs, transportation, social development, mental health and addictions, Indigenous relations and forests, lands and natural resources. [These were the portfolios vacated from the seven Cabinet ministers who did not seek election again].
Horgan also needs to decide whether he wants to add positions to his cabinet. The current cabinet has 23 people, but with a larger caucus and an intense focus on COVID-19, there could be a few more positions added.
The government is folding child care into the minister of Education...
One of the things the premier could be looking at is putting a minister in charge of COVID-19 recovery. The position could merge together responsibilities from numerous ministries in order to provide a unified voice communicating decisions made about the pandemic response."
Legal Action Against John Horgan for Calling an Election
In October 2020, Integrity BC and Democracy Watch, public interest advocacy groups, filed a legal action in B.C. Supreme Court against Premier John Horgan.
In their complaint, they alleged that, by calling the election prior to the date outlined by law, Premier Horgan violated the Constitution Act. They were not seeking to stop the 42nd election, but they are seeking a declaration and an order that Premier John Horgan's actions violated the fixed election dates articulated in the Act.
A CBC article quotes the complainants in this legal action:
Duff Conacher, Democracy
Watch, stated: "By calling a snap election during a pandemic
instead of waiting for the fixed election date a year from now, Premier Horgan
acted like an old-school power-crazed politician, not a new democrat committed
to fair and democratic elections.”
Integrity B.C. founder Wayne Crookes says "Horgan's snap election call was self-interested, hypocritical and unfair.
It violates the fixed election date measures in B.C.'s constitution that the NDP has publicly supported, and the written agreement that the NDP had with the Green Party, and the good democratic tradition of fixed elections every four years that has developed through the past four B.C. elections," he said.
In speaking to this legal action, the following details were quoted in the Times Colonist:
“A spokesman for John Horgan said a statement would be coming Monday afternoon but it had not been received by deadline. He said in an email the Constitution Act “is pretty clear on the issue,” including the section 23(1) which says the Lieutenant-governor may dissolve the Legislature when she “sees fit.”
Sources: CBC News. (2020) Advocacy groups file lawsuit against John Horgan's
snap election call. Retrieved from: https://www.cbc.ca/news/canada/british-columbia/advocacy-groups-file-lawsuit-against-john-horgan-s-snap-election-call-1.5775123.
Lazaruk, S. (2020). B.C. snap election was illegal, says Democracy Watch as it prepares lawsuit, Times Colonist. Retrieved from: https://www.timescolonist.com/news/b-c/b-c-snap-election-was-illegal-says-democracy-watch-as-it-prepares-lawsuit-1.24223513.
Conclusion
Various candidates in the 42nd B.C.
election have publicly confirmed the following information via social media posts:
1. The BC Legislature remains
dissolved.
2. There are currently no Members of
the Legislature (MLA's).
3. Successful candidates (by voting
results from Elections BC) have not yet been sworn in as MLA's by the
Lieutenant Governor.
4. That the final writs of election
are expected shortly, perhaps today, November 17th.
5. That they have not yet been
informed when they will be sworn in as MLA's to form the 42nd Parliament and
represent voters in the B.C. Legislature.
This article may not have cleared up the murky nature of what has happened during this 42nd B.C. election. It also has not confirmed who is really in charge of the B.C. government from a political standpoint. However, this article has provided an overview and details regarding election and constitutional laws in B.C governing elections and parliamentary matters to educate and inform interested voters and members of the public.
I have also presented information regarding Mr. Horgan and Mr. Dix as they continue to present themselves as representatives of the Executive Council and Cabinet in B.C. via public relations and communications activities on social media and through various media outlets in the province. I suspect there will be more to write about all of this, and many other topics related to governance and leadership in B.C., in the days to come.
