The premier of a province doesn’t actually have the authority to call an election. Authority to dissolve the legislature and call an election resides with the Lieutenant Governor.
Ordinarily, the Lieutenant Governor would call an election at the request of the premier. In unusual circumstances, such as those that currently exist in British Columbia, she will have a choice to make.
The circumstances where a request for an election could be refused by the Lieutenant Governor were described by Sir Alan Frederick Lascelles, a private secretary to King George VI. They are referred to as the Lascelles Principles:
1) The existing Parliament was still vital, viable, and capable of doing its job;
2) A General Election would be detrimental to the national economy;
3) He could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.
These principles were articulated in relation to the British Parliament but would be applicable to Canadian legislatures. The second principle has been restated as detrimental to the public interest, rather than just economic interest.
There are two historic examples of a request for an election being refused by a Governor-General.
In 1926, Canadian Prime Minister King asked then Governor-General Byng to dissolve parliament and call an election. The Governor-General refused and, instead, permitted the leader of the Conservative Party to form a government.
In 1939, the Prime Minister of South Africa lost a vote to keep South Africa neutral in World War II. He asked the South African Governor-General to call an election. The Governor-General refused, the Prime Minister resigned, and the former minister of justice formed a government. South Africa joined the war against Germany.
Currently, in British Columbia, the BC NDP and BC Liberal Party each have 41 seats. The Green Party has 2, there are 2 independents, and one former BC Liberal seat is now vacant.
Because an election in the middle of the COVID-19 pandemic might be viewed as being contrary to the public interest, if there was an alternative coalition presented to the Lieutenant Governor, she would need to choose between this, and calling an election, should there be a request for an election by the current premier.
Also discussed on the show is a case of a marriage annulment being granted on the basis that the husband was impotent and unable to consummate the marriage, despite numerous attempts. The husband unsuccessfully opposed the annulment and was also required to pay his former wife costs for the court case.
Finally, on the show, the case of a woman who falsely claimed to have been residing with a man for more than two years in order to qualify as his common-law spouse for the purpose of inheriting his home is discussed. The deceased man’s only son, who was abandoned as a child, successfully demonstrated that the woman hadn’t been residing with his estranged father for two years and, in so doing, inherited the house.
An automated transcript of the show:
Legally Speaking Sep 17, 2020
Adam Stirling [00:00:00] It is time for, Legally Speaking, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers joins us. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:07] I’m doing great. Thanks very much for having me.
Adam Stirling [00:00:08] Now, there are so many things in the news right now and so many novel situations that we could discuss. But top of mind for everyone, I think, is whether or not there could be an early fall election. I know you’ve performed an analysis on this matter.
Michael T. Mulligan [00:00:22] Yes, indeed. That’s really interesting on a host of levels. I mean, there’s the practical level of what it would look like to try to conduct an election campaign in the middle of a pandemic. But there are also some, I think, interesting legal and constitutional issues about whether the premier would, in fact, have the authority to force an election to occur now. And there is some reason to doubt that he would actually have the authority to do so. And to understand why that is, we have to start with the, under the Constitution of Canada, and that’s sort of where power lies to do things like dissolve the legislature and call an election. That authority doesn’t reside with the premier. That authority resides with the lieutenant governor, lieutenant governor. In fact, if you read the Constitution Act, you would conclude that the lieutenant governor essentially runs the province. Now, clearly that’s not so because the role of the lieutenant governor is constrained by constitutional convention. And ordinarily, the lieutenant governor would act on the advice of the premier in matters like whether the legislature should be dissolved, whether there should be an election called. However, we have a reasonably unique circumstance in British Columbia as a result of the current standing in the legislature in terms of the number of members and the fact of the pandemic, that I mentioned. In terms of the breakdown of the legislature at the moment, it is a tie between the Liberal Party and the NDP. Each has 41 seats. That leaves, of course, the Green Party now with two, two independents, the speaker and the former Mr. Weaver, the former leader of the Green Party. And there’s one vacant seat, which was a seat held by a liberal member. So, the government currently maintains its majority in the House thanks to the support pursuant to that confidence and supply agreement. The Green Party voting with them.
Adam Stirling [00:02:35] Yes.
Michael T. Mulligan [00:02:36] And you’ve the listeners have no doubt heard the consternation between the leader, new leader of the Green Party and the leader of the NDP, the NDP leader, the premier said, you know, I don’t necessarily feel bound by that agreement any longer. And outrage on behalf of the Green Party saying, look, we agreed to this thing on the basis that we would maintain confidence and not call an election until the next fixed election date. So that’s where sort of the politics of the thing is. But there is an interesting constitutional scenario if the premier tries going to the lieutenant governor and saying, I want the legislature dissolved and I wish to have an election called. Now, there was a very interesting letter, an open letter written by Norm Spector, who was published the other day.
Adam Stirling [00:03:23] Yes.
Michael T. Mulligan [00:03:24] Suggesting that if the premier tried that, the lieutenant governor would be well advised to tell him to go away and think about that in the context of the current pandemic. But there is constitutional precedent for doing more than saying go away and think about that idea. And the precedent comes from two previous circumstances. And then an interesting set of principles that were set out called the Lascelles principles. And I’ll start with the two previous examples of where requests for an election were refused. The first of those with probably the most well-known in Canada, it’s referred to commonly as the King Bing affair.
Adam Stirling [00:04:08] Yes.
Michael T. Mulligan [00:04:08] Back in 1926. And you had an election where the sitting prime minister, a Liberal prime minister, Mr. King, had the won fewer seats than the Conservative Party. But with the support of a third party, much like what we have currently in British Columbia, called the Progressive Party, he was able to maintain confidence in the House; but there was a scandal that arose over customs and bribery and the sort of thing. And eventually, Mr. King went to the Governor-General, this was federal and said, I want to have the I want an election called. And the Governor General said, no, Bing I’m not doing it. the prime minister then tried a formal ordering council to which the Governor-General said, I’m not signing that. And instead, instead gave the opposition, who had a majority of seats, an opportunity to try to form government. That wasn’t long lasting, but the principle there is that it would be precedent, the Governor General or the lieutenant governor is not obliged in every circumstance to dissolve parliament and call an election when asked. There is a second example, which is from South Africa that occurred in 1939. The then prime minister tried passing a resolution in the legislature to have South Africa remain neutral in the Second World War after Germany invaded Poland. It did not pass. It failed. 80 to 67. And he then went to the Governor-General and said, Well, I want an election. Dissolve Parliament. The Governor-General of Africa said, no, I’m not doing that. There appears to be a viable alternative. The prime minister resigned, and the other individual took over formed government and South Africa joined the Second World War. And following all of that, there was, and this is coming back to those principles they mentioned called the lascelles principles.
Adam Stirling [00:06:15] Yes.
Michael T. Mulligan [00:06:16] Those in the most British of possible ways. This is what those say. They say this: The Sovereign in this case, representative, can refuse a request for an election if the following criteria are met. One, if the existing parliament was still vital, viable and capable of doing its job. Is there another possible majority?
Adam Stirling [00:06:39] mhmm.
Michael T. Mulligan [00:06:39] The language used then would if a general election would be, quote, detrimental to the national economy.
Adam Stirling [00:06:45] Interesting.
Michael T. Mulligan [00:06:45] That one has been recast in some quarters as, sort of, detrimental to the public interest rather than necessarily economic interests.
Adam Stirling [00:06:54] Interesting.
Michael T. Mulligan [00:06:55] And then three, if the Sovereign could rely on finding another prime minister who could govern for a reasonable period with a working majority in the House of Commons. Those principles, as I said in most British of ways, were published in the Times. They were written by the principal secretary to King George the Sixth. Then they were published on May 2nd, 1950, setting out that principals, were the principal secretary to the sovereign, saying a request for an election can be refused. And that was published in the context of a very thin majority in the UK. And so, what all of this says, there is, of course, everything that the not everything, but much of what the governor general or lieutenant governor is doing is not going to is going to rely on precedent and principle. Right. And in that regard, you can’t just look to what is the Constitution Act say, because if you looked at that, it would say that, you know, the entire operation of the province is run by Janet Austin. Right.
Adam Stirling [00:07:59] Yes.
Michael T. Mulligan [00:07:59] And that is not so. She would be obliged to act in accordance with constitutional principles, but there are two examples and a statement of principles which would all potentially in the B.C. context, allow her a decision. So, if the Premier Horgan goes to her and says, I wish you to dissolve the Legislature and call an election, she could choose to do that. Or if she was of the view that there was another viable, you know, parliament or the legislature still viable and capable of doing its job. And if they could and if she was satisfied that calling an election would be detrimental, I think to the public interest would be a better way to phrase that, and that would be held a pandemic would be relevant to her decision. And then if she could rely upon there being another potential premier to take over and whether that so is likely a function of whether the Liberal Party and the Green Party under the new leader were in a position to offer something like the confidence and supply agreement that was put before Lieutenant Governor, when Premier Horgan was permitted to become the premier. And so that last part of that puzzle would be the third part of the test set out in those principles, because one of the key obligations of the lieutenant governor is to ensure that there always is a government in place.
Adam Stirling [00:09:30] Yes
Michael T. Mulligan [00:09:31] So there all of that, I think, the takeaway would be the Premier Horgan doesn’t have an unfettered right to demand an election at this point. And with the tie between the Liberals and the NDP, with the Greens holding the balance, the genuine balance of power there. If it would be clear to the lieutenant governor that there was another viable coalition available. The choice could be to allow somebody else to form government rather than calling an election, even if the current premier is asking for one. So, I think that’s important to know. It’s not simply a decision for the premier and the authority of the lieutenant governor based on that precedent would appear to go even further than what Mr. Spector was advising her to do, which would be to tell him to go away and think about that carefully. If you try to call an election in the middle of a pandemic.
Adam Stirling [00:10:36] Now, as a matter of practicability, though, one must wonder what could be done if an election was called inappropriately. Could we, could somebody go to court and say, no, actually, the legislature isn’t dissolved. Like, I’m not aware of any precedent involving that either.
Michael T. Mulligan [00:10:53] No, it wouldn’t be a matter for the courts. This would be a decision which would be up to the lieutenant governor.
Adam Stirling [00:11:00] Okay.
Michael T. Mulligan [00:11:01] It’s for her to decide this, right. Her role includes ensuring that there is a government in place. But in the particular scenario that exists in British Columbia, where you have a minority government being supported by another party, if the premier shows up and says, I want the legislature dissolved and I want an election, just like the what occurred in South Africa and for Mr. King when he was prime minister here, they don’t have the premier or prime minister does not have a unfettered right to demand an election. He can make a request for one which in ordinary times would be accepted by the lieutenant governor, governor general in case of the federal government. That would be ordinarily what would be so. But there is, there are two examples of where that advice was not accepted and that statement of principles setting out in what circumstances, the sovereign of the sovereign’s representative, lieutenant governor, may refused the advice, not call an election despite the request for one by the current premier or prime minister and could instead if there was another viable alternative, and if parliament or the legislature was still capable of doing its business with an alternative, you could have the lieutenant governor turn to somebody else and say you form government rather than calling an election in the middle of a pandemic. So, the point is simply is not an unfettered right to call an election. It’s simply a request.
Michael T. Mulligan [00:12:46] And that would be given very careful consideration by the lieutenant governor. Usually, that would be the advice would be followed. But with a minority government in the middle of a pandemic, with those two previous examples and this statement of principles, you might get a different decision if there was another viable alternative that could form a majority and get support in the legislature. That last part would depend upon what the view was, I think, frankly, of the Green Party and the independents, right?
Adam Stirling [00:13:18] Yes.
Michael T. Mulligan [00:13:19] What is their view? Are they prepared to make some agreement with the Liberal Party to form a majority? If they were, and that was communicated to the lieutenant governor, that would need to be considered by her when she was making a decision about whether to call an election in a pandemic or instead, there is clear precedent for her saying, no, I’m not going to do that. I am instead going to ask somebody else to form government.
Adam Stirling [00:13:48] All right. Let’s take our break. Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers continues with legally speaking, right after this.
Adam Stirling [00:13:55] All right. Back to Legally Speaking, Michael Mulligan from Mulligan Defence Lawyers. Michael, family law, often, the most difficult, I would suspect, for many folks to deal with because the stakes can be so high. And also airing one’s private business and affairs in a necessarily public setting such as a courtroom itself can be somewhat embarrassing. I would imagine all of those potential outcomes come to mind with respect to this next story.
Michael T. Mulligan [00:14:23] Yes, indeed. And I must say, this would be a, there is some relief, I think, given to the people involved here as the judge was merciful enough to use only initials. So,.
Adam Stirling [00:14:35] Which is which is a very wise in my view.
Michael T. Mulligan [00:14:37] Yes. So, this was a rare the kind of family law application. Of course, there are lots of divorces going on, causing lots of rancour. But this was a decision involving an application for an annulment of a marriage, which is very rare these days. And this was a couple they were married in August of 2018. And the basis for the application for the annulment of a marriage and the annulment would eventually be seeing this marriage never happened, not that have happened, and we’re now going to give you a divorce, was based on a claim by the would be wife that her husband was unable to, despite many efforts over many, many weeks and months to consummate the marriage on the basis of alleged impotence. And indeed, if you can prove that a person, that a marriage was not consummated, you can obtain an annulment. The standard for that has evolved over the years. In fact, quite a while ago, back prior to 1857, it was you had to go to an ecclesiastical court in order to get an annulment. Commonwealth courts have taken over since them and the as well, there’s been a slight relaxation of what used to be a very high threshold to prove a failure to consummate the marriage. Some of the cases from the 1930s in Canada found that you could only get an annulment if you could establish that the inability to consummate the marriage was permanent and would not be and could not be cured or terminated at any point. If you couldn’t get to that level, the marriage wouldn’t be annulled. We have relaxed that somewhat, but you still have a burden of proving that the marriage was not consummated. And so, this act in this case, there was actually the husband was opposed to the application for the annulment, and he had instead suggested that, well, they had tried many times to consummate the marriage unsuccessfully. He claimed then eventually that his wife refused to continue trying unless he entered into some sort of a marriage agreement and I think sought medical treatment. That evidence was rejected ultimately by the judge and instead, the judge accepted the evidence of the wife that despite many attempts, they simply weren’t able to consummate the marriage. And some of the language used was talking about the ability to consummate the marriage being an implied term of the contract of marriage.
Adam Stirling [00:17:25] hmm.
Michael T. Mulligan [00:17:26] And so ultimately here the judge granted the application for the annulment and despite other evidence from the husband, including evidence from him that he now had a new girlfriend. The couple separated and they didn’t have any trouble in that regard, on a regular basis. But nonetheless, given the standard the judge applied in a more modern context that he was incapable of consummating a marriage with his wife, that was sufficient to found the annulment. The annulment was granted but to add some salt to the wound, in addition to the annulment, the judge ordered costs against the husband. So.
Adam Stirling [00:18:03] Wow.
Michael T. Mulligan [00:18:04] No doubt that’s going to be an unpleasant cheque to be writing out, paying the costs of your unsuccessfully defended application to avoid an annulment on this basis.
Adam Stirling [00:18:15] I, I, I’m just reeling that this is possible in the year 2020, that all of this is legal. But I suppose the law is the law.
Michael T. Mulligan [00:18:23] That it, we you know, it doesn’t expire.
Adam Stirling [00:18:27] As much as some may wish that it did. So, we’ve got three and a half minutes left. I know we have one more story falsely claiming to be a common law partner, attempting to inherit a house.
Michael T. Mulligan [00:18:40] Yeah. I think this would be the opposite of the last case.
Adam Stirling [00:18:42] Yeah
Michael T. Mulligan [00:18:43] In some respects, fact pattern was a man who in the 1970s left the United States to avoid the Vietnam draught, moved to Canada, leaving behind an infant son, who he had almost no contact with and paid no child support for. The man that moved to Canada passed away, and a woman whom he had been dating and who had moved into his waterfront home, made an application to administer the estate on the basis that she was his common law wife. And in order to do that, you need to, in order to be a common law spouse for that purpose. You must have been living together for a period of two years, in that way. And the son eventually, I think, concluded that she may not have done that. And so, he brought this case claiming that she wasn’t, in fact, a common law partner because she hadn’t lived with his father for the required period of time. And so, this case involved the judge reviewing all kinds of things, like phone records, where did she live and what did you fill out on medical forms and all of this. And ultimately, the judge concluded that the woman had fibbed and she well, she had moved in, with the deceased, she had not lived with him for the required two-year period of time. And as a result, she didn’t constitute a common law spouse. The man died without a will. And the net result of that is that this woman who had claimed, falsely, that she had been living there for more than two years and who had in that by doing that, managed to transfer the home, the waterfront home to her name, was ordered to transfer it to the son because there were no other children and she didn’t constitute a common law partner because that time requirement wasn’t met. And so the net result of the son being able to establish that this woman was not a common law partner is that the son whom this man had only had sparse telephone contact with and offered no support to growing up inherits the house. So, yes, the takeaway message there would be, first of all, consider getting a will. And second of all, if you don’t get a don’t have a will, you may well precipitate these kind of disputes and they can turn on those facts. It’s hard to, of course, know what the desire of the man would have been. But here the son that he abandoned gets the house. And the woman who lied about being his spouse for that period of time has got to give it up.
Adam Stirling [00:21:27] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday on CFAX 1070. Thank you as always, Michael, until next week.
Michael T. Mulligan [00:21:35] Thank you so much. Stay safe.
Adam Stirling [00:21:37] All right. You too. Have a great day. Bye now.
Automatically Transcribed on September 17, 2020 – MULLIGAN DEFENCE LAWYERS