Last week, Justice H. Borenstein of the Ontario Court of Justice, in R. v. Lougheed, affirmed that a political party’s constitution “sets out the process by which a person may become [a party’s] candidate at an election.” Justice Borenstein stated that a decision to appoint a Liberal Party candidate is the “prerogative of the leader within the limits imposed by the Ontario Liberal Party constitution” (emphasis added).
Justice Borenstein was referring to section 11.9 of the Liberal Party constitution, which gives the Liberal leader “sole and unfettered discretion” to appoint a candidate, “without the need for the holding of a nomination meeting.”
By contrast, Article 6 of the Ontario PC Party constitution gives the PC leader no such right to appoint candidates. Instead, Article 6 confers the power of candidate selection on PC Party members by declaring that nomination meetings “shall be held,” and requires that such meetings be “open, public, and democratic.”
So, how is it that Patrick Brown can claim that he personally possesses the undemocratic power to appoint local candidates of his own choosing?
The PC Party executive, led by president Rick Dykstra, first contravened the PC constitution in this matter in April 2016, by inserting paragraph 18.2 into their “Rules Governing Candidate Nominations.” Paragraph 18.2 is ultra vires, or “beyond the powers,” of the PC Party executive for two reasons: it purports to overrule Article 6 of the PC constitution by attempting to give Brown, not party members, the ultimate say in selecting local PC candidates; and it violates Article 9.9 of the PC constitution by contradicting rather than being “subject to the provisions of [the] constitution.”
On June 3, 2017, Brown first deployed this rule change when he personally intervened in a meeting of the PC Party executive and decreed that he would be appointing a minimum of 64 candidates. Dykstra collaborated with Brown by then using Brown’s proclamation as the basis for rendering moot another constitutional requirement – that the PC Party executive consider all outstanding nomination appeals (Article 27.6), including those with evidence of ballot-stuffing and other fraudulent activities.
Dykstra justified Brown’s decree with the spurious claim that Brown had the “legal responsibility and authority” to determine which candidates’ nominations papers he would sign. Indeed, section 27(2)(h) of Ontario’s Election Act does explicitly require that a candidate’s nomination papers be “signed by the leader of a party” as a statement “that the prospective candidate is endorsed by the party” (emphasis added). But it is explicitly the PC Party’s mandate, not the leader’s, to endorse candidates. And, as Justice Borenstein noted, a party’s process for selecting its candidates is set out in that party’s constitution.
Brown and Dykstra were wrong to falsely assert that Leader Brown had the “power” to overrule, or ignore, the results of local nominations, and to disregard whether they were done in an “open, public, and democratic” process. By any reading, “democratic,” in the context of the PC constitution, means the will of PC Party members, not the will of the leader. In collaborating to usurp the rights of PC Party members, Brown and Dykstra also violated their own obligation to “uphold this constitution” (Article 7.1).
To avoid possible court intervention, Brown should only sign the nomination papers of individuals that have been selected in accordance with the PC constitution; and “open, public, and democratic” PC Party nominations must be held, or re-held where necessary, in all ridings.
Justice Borenstein’s decision reminds us that a political party leader’s power to appoint candidates is derived from the party’s constitution. His statements make it clear that, although the ability to appoint candidates may be a power that Leader Brown wants, pursuant to Ontario’s Election Act and the PC Party constitution, it is a power that Leader Brown simply does not have.
Kara Johnson and Jim Karahalios are lawyers and long-standing members of the Ontario PC Party