Emerson's defection raises legal issues

Charlie Smith, The Georgia Straight

Vancouver lawyer Peter Dimitrov has suggested that Vancouver Kingsway MP David Emerson and Prime Minister Stephen Harper might have “nullified” the constitutional rights of Emerson’s constituents when Emerson abandoned the Liberals and joined the Conservative cabinet. In a phone interview with the Straight, Dimitrov said that a 2003 Supreme Court of Canada decision involving Miguel Figueroa “clearly elucidates the right of citizens to play a meaningful role in the election of their representatives”.

The Figueroa ruling stated that Section 3 of the Charter of Rights and Freedoms, which enshrines the right to vote, grants every citizen “the right to play a meaningful role in the selection of elected representatives”. Dimitrov said that this decision, in effect, suggests that “sovereignty resides in the citizens of Canada as a whole”.

“Now, that particular concept hasn’t been enlarged upon or clarified by the courts, Dimitrov noted. “Surely it has consequences. The most immediate consequence that comes to mind is there is a right of the citizen to be truthfully informed. And based on that information, to have that vote cast and the election of the candidate duly registered, and that candidate represent them.” More >

The article also quotes Dimitrov ”In my mind, there was a legitimate expectation within the minds of the citizens of Vancouver Kingsway that if elected, Mr. Emerson would sit as a Liberal”.

Various pundits have argued that voters cast their ballot for a candidate, not a party, despite the overwhelming evidence that people place party first, more often than not.

Interestingly, in its ruling on Figueroa v. Canada the Supreme Court establishes the importance of party affiliation:

Withholding the right to list party affiliations on ballots from parties that have not satisfied the 50-candidate threshold also infringes s. 3 of the Charter. First, withholding this benefit diminishes the capacity of individual citizens to participate in the public discourse since there is a close connection between the support a party receives in an election and its capacity to influence policy. Second, it undermines the right of each citizen to make an informed choice and to vote according to preference. Affiliation has a significant informational component and some voters may be unable to vote for a preferred candidate if the party affiliation is not listed on the ballot paper.

A court challenge citing section 3 of the Charter of Rights would be a long, costly, but democratically interesting and important case. Surely there is a firm, or government (provincial?), out there somewhere who has the interest and resources to make their mark on Canada by improving our democracy.

In the meantime, two politicians could make a mark much faster, for the good of us all. Emerson need only resign, and Stephen Harper can complete the deal by ordering an immediate by-election.