An Open Letter the Green Party of Canada federal council:

I’ll apologise if the letter below, and this blog post is not as cogent as it should have been. I am writing this post standing up, buzzed out on percosets. My Kidneys are acting up again, and I cannot sit down, pee, or think straight, but I could not let the opportunity to influence the decisions council must make today pass me by because of a little pain. Incidentally, I know I should have been returning calls, answering emails, and meeting my commitments better this week, but I have been stumped by my hopefully soon to be forgotten bloody damned kidneys!

First the context, then the text of the letter.

If you are a regular reader of this blog, then you’ll know that the Green Party of Canada’s federal council has been consumed by some strange, and untimely debates of late. More importantly, there has been an enormous amount of manoevering, and negotiations between the three more or less openly campaigning leadership candidates, and the current leader. I believe that the by-laws are being subverted in order to serve the purposes of these back room operators. The public spin has no realtionship with the underlying purposes and intent of some of the participants. Like many GPC members, one of the reasons I support the GPC is the commitment to doing politics differently, and in an open manner. That is actually the reason for the very existence of this blog. To shine a light into darkened corners, and seperate spin from reality to enable members to make informed decisions on the management, and governance of OUR Party.

Federal council will be debating 5 or 6 motions to delay, obstruct, eliminate, or enforce the provisions in our by-laws, and constitution which mandate a leadership contest this year. I am upset that my hand has been forced, and that it is even neccessary that council be chivvied into performing their duties. I’ll return the favour today, and force some other positions into the open. Jim Harris gracefully stepped aside before the last race, and council did their very best to ensure the ensuing race delivered huge benefits to the GPC. I fear, and am working to prevent a situation whereby our current council, leadership, and the three other known candidates can create an environment where the next leader of the Green Party of Canada will be determined in secret, by shaping the terms of the contest behind closed doors.

It does not surprise me that Adrian Carr should be supporting a quiet deal to support Elizabeth May and delay the race. Adrian and Elizabeth are as thick as .. I was going to say thieves, but that isn’t very nice, so instead I’ll say they are extremely close. Adrian has staked her career on being the loyal, and natural successor to Elizabeth, and will be enjoying the support of staff, and Elizabeth when the time comes. As Elizabeth’s appointee to the Deputy Leader position, she draws a salary, receives support from the Party, for example when she tours the EDA’s building support for her leadership, er, I mean, training the EDA’s. She is granted many opportunities for public exposure that the other candidates will never, ever be granted by this council and leader, so it’s fair to say that every years delay is a free lunch and paycheque. Why should she jeopardise these fantastic perk’s by allowing a leadership race?

If Frank’s supporting a quiet deal, it’s a little more surprising. It’s obvious that he has made a strategic calculation that Elizabeth May cannot be beaten in a direct contest. Therefore he is desirous of a delay so that Elizabeth can get clobbered in SGI, and will be dumped with all her baggage. While I think these strategic considerations are partially valid, it is a mistake to be party to a backroom deal to ‘handle’ the leadership races terms and conditions. The Green Party membership will not react kindly to this whole fiasco. I can be frank, and confess that I was very close to joining Frank’s team last year. His candidacy is important, and brings value for the Party as a whole, so I’ll offer some advice, at no-charge. Either commit your campaign to running against Elizabeth, or step back and wait to contest against the field in the next one. Frank , you are ideally positioned to prepare for, introduce motions to, and organise to pass those motions at the BGM in Toronto. If you want to influence the terms and condidtions of the race, do so in a Green, and legitimate way in the place and time designated for that purpose. Continuing to play at influencing the backrooms risks making you a patsy, and will definitely wrong-foot you with those whose support you will need the most. Just a friendly heads up about the freight train coming down the tracks at you ;-)

I will extend a proper courtesy to the third candidate, based in Toronto. Unlike Frank and Adrian, he has made no public moves to tip his hand. He has the same right as my candidate to control the timing and method of launching his campaign. He is however quite new to the Party, and so has been very busy raising his profile in Ontario at least. There is one very big banana peel lying right at his feet though. The Green Party membership is allergic to backroom politics, and he hasn’t been here long enough to understand that deep in his bones. In politics, as in the field of marketing, perception has a way of turning into reality. Because his candidacy is the best thing that could possibly happen for Adrian Carr, he risks being branded as a status quo candidate, or even a patsy of Adrian and Elizabeth. I have faith that this is not the case, and that his purpose is not simply to split the Ontario vote. My advice to him would be to stay the course. Continue to build a constituency within the Party, and use this campaign to meet and understand the incredibly diverse constituencies within the Green Party. Keep it real, and don’t get caught up in negative campaigning, and mud slinging. Be a part of the reconciliation after the race is done. You will be well positioned for a responsible position after the election, and I don’t think that you run a real risk of being cast aside and villified when the race is over, the way Chernushenko was after the last race.

So now that I have pissed off pretty well everybody, and without further ado, here is the text of the letter I forwarded to council this morning.

February 21, 2010. 11:00 AM

It is with regret that I am draughting this open letter to council.

Just under a year ago, I agreed to offer my services to a wonderful francophone woman, and a very skilled manager, who has been actively organising a campaign to become the next leader of the Green Party of Canada. Whether or not there would be a race in 2010 was not in question, because it is mandated, with strict language, by the Constitution and By-Laws of the Party. Naturally, the final decision, and any public announcement of the intent to run cannot be made until the terms and condidtions of this years Leadership contest have been publicised. I am not writing this letter as a casual observer, I am extremely familiar with the context in which this debate is occurring.

I think by now, you are all familiar with your’ roles and duties, which are to support, and enforce the Constitution, and By-Laws of the Party. The authority of council is established by the constitution, and by running for, and accepting the offices which you now hold, you accepted the legal obligations to enforce the by-laws. The intent, and purpose of the By-Laws that you are now debating are clear, that there should be a Leadership contest in 2010. Not a Review, not a plebiscite, but a proper contest, with all the trimmings. The authority to change the pertinent By-Laws rest with the membership, not council. A number of the council motions that you are debating today are plain and simply illegal. In some cases, they pre-judge the will of the membership by assuming a change in the By-Laws will be passed at the August BGM. In other cases, they simply arrogate authority to council which council does not have.

“In Knox v. Conservative Party of Canada (Alberta Court of Queen’s Bench, 2006), Justice Sulatyky wrote:

“10 If the political party must control and regulate its internal affairs, it must, in my view, also do it in accordance with their own rules and constitution.

“11 A political party of course is free to leave to its leader the appointment of all of its candidates, but once it chooses to adopt a different process for selection of candidates, even though in the end the leader might have the ultimate authority, it must follow the process that it itself sets up for choosing those candidates.

“12 And because the process is given the blessing of the statute, as enunciated in the Ahenakew decision, the process is subject to judicial review. That is the inevitable consequence of generous election funding of parties and their candidates from public coffers.

“13 So while my inclination and my belief was that Courts should not interfere in nomination processes, I find that the law as it has evolved gives the Courts jurisdiction as a result of the statutory constitution of political parties and constituency associations to review decisions of those parties and associations.””

While this is a ways from a formally bought and paid for legal opinion, the language is clear enough that there is a legal case to be made, and a competent court to hear the case. This case pertained to nominated candidates at the EDA level, for a general election, but the language of Justice Sulatyky leaves little doubt that this would apply far more widely. There are other supporting precedents as well. While the campaign I am working on does not at this moment anticipate launching a legal challenge, this option is generally available to anybody who could demonstrate they intended to launch a leadership bid, and were quashed by an illegal act of council. Any disgruntled EDA, member, campaign, candidate, or their nominees could spend a few hundred dollars, and cause the GPC, and our current leadership severe financial, and public embarrasment. My greatest fear is that operatives from a certain right wing party will use this issue as a tool to justify the elimination of the per vote public subsidy to political Party’s. I’m afraid it would make for a compelling media story. It will be no surprise to any on council that there are armies of well funded ConBots that would revel in such a campaign.

I have called on council, both via my public blog, and more directly by lobbying some individual council members, and a letter to council in late 2009, requesting clarity on the terms of the leadership race. While some of you may be of the opinion that there are only the current leaderships, and several other undeclared candidates opinions that need to be accomodated, please take this letter as due notice that there are other interested Party’s, with a direct interest in the outcome of todays vote on leadership motions, and those other interested Party’s will vigorously, and publicly defend their rights and prerogatives.

I will be more than pleased to make formal representations to the leadership fairness committee regarding how to control the risks of a conflict between the leadership race, and a potential general election. This can easily be acheived with consensus provisions to delay the vote in the event of a general election. I would respectfully submit that establishing a fair and balanced contest, most importantly in a timely manner that respects both the intent of the membership, and the practical considerations is the proper business of council at this late date. I await the results of councils deliberations with interest, and remain cordially yours;

Matthew Day
GPC member in good standing

If you are interested in serving our Party, and our great country by volunteering your support to our campaign, please send me an email with your contact information including a phone number and best time to contact you to: bluegreen1965@live.com. I can give you a lot more information directly, but would prefer not to publicise in print until the legal spending limits, and conditions of the campaign are known.


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35 Responses

  1. Matthew, my heart goes out to you. I had some kidney stones a few years ago and the memory of that pain will never be erased. I wish you a speedy and peaceful recovery.

    It won’t surprise you to know that I disagree with your characterization of the current situation. You start by saying you don’t like backroom deals, but then go on to attribute backroom motives to the people whom you regard as potential candidates, and then conclude that we should stick with the current rules, because otherwise we are thwarting their plans. That dog doesn’t hunt.

    Another characterization is to say that our new constitution is flawed, and the idea of fixed leadership nomination dates puts the party at a disadvantage compared to all other parties who use the election cycle to trigger leadership change or continuance. The council, in a very open and transparent way, is attempting to correct this while respecting that there are numerous differing views. All of those views have had an opportunity to present their view to their council representatives, and they are faced with a difficult decision in which at least some people will be unhappy.

    I don’t see this as being a bad thing. I agree with you that we need to be vigilant to ensure that the rules are followed, but what I see happening is that the council is working very hard to ensure that this is the case.

    Jim Johnston,
    Lambton-Kent-Middlesex
    Opinions expressed are my own.

  2. Thanks for your’ sympathy Jim, yes, those stones are truly wicked.
    I do not disagree that the current constitution is flawed, and seriously at that. However, there is not just a single solution to the dilemma you are pointing out. Even under the current constitution, there is more than enough discretion to deal with it within the bounds of the legal framework. The situation is in large part a product of dithering, and wasting time. Being a councilor, you have undoubtedly noted that once the idea of abandoning the legal framework was accepted, everybody and their uncle popped up with a wide range of drastic revisions to the established order. Surely you recognise that this is a dangerous precedent that is being set? I have made as close a characterisation of the current context as I could. Some of it is factual, and some is supposition. Without a great deal more transparency in the process, we are all reduced to tea leaf, and crystal ball gazing. We have to deduce motives and rationale from the public and observable actions of the participants. There are even some factual support that I have simply left out of the equation, because they were confidences that I ought not share. There is less supposition than you may think, but that is me being disengenious. “In this bag, I have secret evidence, therefore believe this string of conjecture.” ;-)
    Council is not monolithic, and there are a range of opinions and views represented there. It is hard to say that council is acting in bad faith, when there is such an active debate. What is NOT hard to say, is that many people on council are making decisions, and supporting positons that are directly contrary to their duty. For example, if the issue truly were that a leadership vote could coincide with a general election, then it could readily be addressed by submitting the question to a fair and unbiased committee, tasked to formulate the set of rules which governs the race. That is the easiest thing in the world to deal with. A provision whereby the race would be discontinued, and re-started some weeks after a general election would receive the full endorsement of an overwhelming majority of council, membership, and EDA’s. That would be a very proper, legal, and consensual approach to resolving every issue that individual councilors have raised.
    Where there’s smoke there’s fire. The fact that such a strong campaign has been launched, that insists the only way to deal with the problem is by extra-constitutional means, which quite by accident completely change the character, and terms of the leaders relationship with the Party she leads tells me that there’s a big fat ulterior motive lurking there. Tossing the constitution, in a way that indefinitely extends the tenure of our leader is the dog that doesn’t hunt. There’s nothing speculative about THAT observation.
    Anyway, you will probably agree with me that without the kind of public scrutiny that I am pointing at council, a great many dubious things would be far more likely to occur. i was happy to ignore council for a number of years, and I will be even happier to go back to ignoring them,once their relevance to me has ended. Both I, and council are undoubtedly anticipating that day with equanimity.

  3. I certainly support you in the quest for transparency and openness in the decision making. There are many people in the party (some of whom are no longer with us) who should be commended for this oversight.

    Just one correction to your post .. I am not a councilor. I have been an observer on council for a few meetings, and have learned a great deal about how things work from those observations. I would encourage anyone to sit in on a few of these meetings to get a better sense of how decisions get made in the Green Party.

    Best of luck with the kidneys ….

    Jim

  4. BGB, you mention “only way to deal with the problem is by extra-constitutional means”

    What extra-constitutional means are currently under consideration? Proposing a constitutional amendment to the August BGM is not extra-constitutional, provided it’s done according to the submission and publication deadlines in the constitution. (In fact, any member, not just a Councillor, can propose such a change). If any such change is passed by the membership, then the new rules take effect. If none are, then there is still time to have the leadership race in 2010 as the constitution specifies.

    I’m at a loss as to what rules are actually being broken here. Assumptions broken, perhaps – like the assumption of an August leadership race. But that’s an assumption, not a rule.

  5. No Erich, have a look at the motions actually being debated. I guess that extra constitutional is a little broad, because it is party By-Laws that some of the proposed council motions will breach. However, since the constitution supports the enforcement of By-Laws, I don’t think it’s unfair to call it a constitutional breach. Either way, it’s a question of semantics, and doesn’t alter the thrust of the argument.
    Council has voted for a motion to be presented at the BGM, with a contest in the fall if the BGM fails to confirm it. That doesn’t fail the test, because the Fairness committee is tasked with updating the contest rules from the last time, and the finger will be on the trigger at the BGM. Now we can seperate the men from the mice so to speak. This will be a tense BGM.

  6. Jim, I apologise profusely about mistaking you. I was thinking Peter Johnston, Alberta Rep. (For now….)
    We met at the LNC by-election no? Incidentally, didn`t you end up with the surviving data from the GOTV? I was really really pissed when it was deliberately discarded after the vote. I had structured the data carefully, with control groups, and carefully randomised datasets so as to definitively prove and quantify the affects on turnout of one GOTV call, Two GOTV calls, One call plus a recorded message drop. Two calls plus a recorded message drop. Plus significant sized randomised control group who got no GOTV. My brother and I stayed up for two days preparing it, and all was lost when I was thrown out of the office, and the shredder went into action before the scrutineers returns could be scanned. I mean, why the fuck did they think I insisted on bar-coding the sheets? So they could be scanned in minutes, not keyboarded in hundreds of hours. I had to keep it secret, but there was proprietary data embedded via the unique ID`s, for which I retained the key. Had I had the opportunity to correlate the returns to the data I had, then the GPC would have had some truly inspiring profiling data for goddam free. I doubt we`ll ever have another opportunity to put 200 volunteers to work scrutinising the vote to collect clean data on the results of GOTV. That`s when I realised that I had poured out my heart and soul on EMAY campaign for no purpose.

  7. I have to go with Erich on this one. I just don’t see how any of our by-laws are being “broken”, nor how the Constitution is being violated by any of the motions which were brought forward to last night’s Fed Council meeting. If there is a motion which might be out of order, it appears that it was the motion(s) calling for an immediate beginning to the leadership contest so that the contest would terminate at the BGM in August with a vote. Those motions which called for that effect may have been unconstitutional, as they would have had the net effect of forcing our Leader to step down as Leader before her four year term (as called for in the Consitution) was up. The grey area here is that our Constitutuion doesn’t require a sitting leader to step down as leader during a leadership contest, but Elections Canada rules appear to suggest otherwise, and Federal Council appears to have been presented with a legal opinion to this effect. So, if Council were to have passed a motion requiring a leadership contest to begin, our leader then would have to step down, and we would be in an unconstitutional circumstance because Council would have violated the 4-year term requirement. That’s if you accept that the leader would have to step down during a leadership race. Many seem to think that she would, and many more think that she should regardless of whether or not she would have to.

    But I don’t see how Council voting to endorse proposing a change to the rules is in violation of the rules. Is it sensible to do so seemingly at the last minute? Well, that’s another story. I’m personally shocked that this didn’t come up at the last BGM, but nevertheless here we are.

    I’ve tried to stay on top of this matter for my own peace of mind, and I’m confident that Federal Council is not violating any of our rules here.

    As it is, the verdict is now out (from last night’s meeting) The earliest that a leadership contest will be called is late August. That’s still in keeping with our Constitution which requires that we have a leadership contest every 4 years, starting in 2006. So, unless the membership opts to change these rules at the BGM, you can expect a leadership contest to commence shortly after the August date.

    If we change the rules, well, that’ll be the membership’s doing, we’ll have expressed our opinion on it. Yes, no doubt the membership’s opinion will be impacted by the timing of a leadership contest (in the fall of 2010), but there are many elements which will need to be taken into consideration, and timing is just one.

    On the matter of leadership contests, our Constitution was built around the notion that a sitting leader does not need to step down during a leadership contest. Elections Canada rules, apparently, seem to suggest that a leader would have to step down. If that’s the case, there’s a very real and fundamental problem with our Constitution, and it needs to be changed.

  8. Here`s a cut`n`paste from GPC blogs, responding to basically the same question. It`s all moot now, because the illegal motions were not passed, but as a matter of record:

    beginquote:
    Three motions, two constitutional, one not: I`ll only pste the pertinent one:

    5.3.1 FC-2010.01.27 (Motion # to be added)
    Title: Bylaw 2.1.4.5 – Leader Term of Office
    Sponsor: Steve Kisby, David Coon, and Adriane Carr for Federal Council, as requested in meeting of January 17

    ……

    MOTION: A leadership review vote shall be held in conjunction with the BGM in Toronto in August.

    5.3.4 FC-2010.01.27 (Motion # to be added)
    Title: Leadership Review

    Sponsor: Richard Tyssen, Federal Council

    MOTION:

    That the Green Party of Canada hold a Leadership review vote as part of the August 2010 BGM, and that the minimum level of membership support required in this vote shall be 60% of the votes cast by eligible members, failing which the Leader will be required to resign as Leader, a Leadership contest held, and a Leadership convention convened before the end of 2010.

    These are selective, because nobody would read the whole list of dozens of motions. As it stands, council did NOT pass these problematic resolutions, and they followed the path Erich suggested above. That does not invalidate prior arguments that unconstitutional motions were being debated, because the above excerpts are pretty clear. Erich is normally a VERY careful reader of the minutae. It could be that amongst the welter of motions, and the usual meaningless `whereas`s`in the pre-ambles, these few thorny ones escaped his attention. For me, the legitimate motions were not to worry about, only the problematic ones. Especially considering Elizabeth May was quoted in the press last week saying she would be happy to face a review vote at the BGM. That in conjunction with a motion on the table to hold a review instead of a contest is a bit of a smoking gun. And THAT would be a breach of the By-Law.

    Here`s the quote, and yes it`s about the August Review, not a later date:

    “May, who says she is staying neutral on the question of leadership rules, says she welcomes a leadership review.“

    Erich, do you now see that there were grounds for suspicion?

    And in passing, and not much to the point, if she`s neutral on the question, why is she quoted making the assumption that a controversial, and illegal motion will govern the process? And a motion that hasn`t even been passed yet at that. Could it be that she was not entirely neutral on the question? (That`s a sardonic joke folks, )

    The simple fact is that the leadership race is in fact on, but it`s being contested on council, and behind closed doors for now. Elizabeth May is NOT neutral. She wants her Salary, her friends want to keep their jobs, she wants a seat in Parliament, and she will not give it up period, until she is good and ready. It`s the Sierra Club all over again.
    endquote.

  9. Steve, to clarify regarding EC rules, I am not certain without reviewing, but I believe that the contention is regarding provisions requiring every candidate to have equal access to Party resources. The Liberals have dealt with it by having their leader step down, and appointing an interim leader. Otherwise, access to the press, backoffice resources, etc. etc. could theoretically be viewed as favouring one candidate over another.
    When Elizabeth quoted her employment contract as guaranteeing her the perks and powers of office until the end of August, well that was pretty brazen wasn`t it. She may have been guaranteed her salary, but I have trouble with the thinking that her employment contract is relevant to the reins (reigns ;-)) of power. At the most, she is entitled to continue her pay until that date, which i for one wouldn`t begrudge her.
    As far as the notion that the constitution was built around the notion, well it wasn`t. That`s just another example of crappy legislation. It is certainly serving different peoples interests in different ways though, as it allows for all kinds of pseudo legal arguments. It`s like a street magicians patter. A dozen practiced flourishes, wordy patter, flash bang and sizzle, all intended to conceal the one pertinent action. Just like the pre-ambles and whareas`s preceeding motions. A whole load of waffle disguising the implications of the briefly worded poison pill. I have learned that when the pre-amble is longer than ten words, theres something hiding in there! All this activity is as old as the hills. As it was, so shall it be, unto the ends of time. We are no different than the other Party`s in our governance. Just a lot less professional about it, just as often suffering from stupid mistakes as from deliberate skulduggery.

    I guess that by now you have figured out that the contest is on, and that it will be contested every inch of the way. I guarantee that I will never support extra-constitutional, or illegal measures. There are boundaries, and limits that I couldn`t cross in good faith. I have been around for long enough, and I have worked closely with enough of the participants that I can say not everybody shares my delicacy about the legal niceties. Wll hey, that`s life! I`m not crying about it, i ignore it when I can, and try to do something when I cannot ignore it. Sometimes I succeed, often i do not. Last nights vote was a success! Council did NOT pass any unconstitutional Reviews at the BGM. That leaves it as an open contest, which was the best I couild have possibly hoped for with such a loyal council.

  10. I’m not sure where people are getting these ideas about Elections Canada requirements and current Leader having to stand down during a leadership races.

    The NDP doesn’t currently have what I would consider to be a meaningful process when it comes to a leadership review. Complicated, but its a consequence of recently changing to one member one vote races, and leaving some unfinished business. That happens when you require a 2/3 majority to change the constitution.

    [If a majority can do it then you have the GPC phenomena: big drawn out debates over principles that end up with a vote on rules of the game. But the group in power next time there is a race knows they can simply change the rules as if the earlier discussions never happened.]

    Ay any rate- the NDP now has pro-forma re-elections of the sitting leader. And EC does not make the existing leader do some silly formal ‘stepping down’ exercise.

    Granted, the GPC election race is a more substantial vote…. but EC does not have the prerogative to judge between the two.

    The GPC is currently a unique case of requiring its leader to face an election [though this also used to be the case in the NDP at every biannual Convention].

    I see no formal or substantive reason why EC would view the GPC as any different than a leadership review when it comes to the question of whether the Leader must step down.

    Since there is an actual leadership race, then yes… EC will require level playing field rules for spending and use of resources. But that isn’t the same as being required to step down. And the level playing field will be insisted on by some of the candidates, prior to any Elections Canada demands.

  11. Hi, Matt.

    Yes, indeed, we did work together on the LNC by-election. I am not certain what happened to the files brought back by the scrutineers. I can check to see what, if anything, remains.

    Jim

  12. Jim, spare yourself the trouble. My brother would probably spit in my eye if I asked him to help me put Humpty back together again. A large fraction of the paper records were dumpstered I think, and what was left just went walkabout. I don’t even know if I still have any computer with the relevant data files, applications, etc. Since the barcodes were never scanned, I would have to rent or buy a barcode reader, and that damned by-election already cost me a thousand bucks in out of pocket expenses. Just do me a favour, and if you’re ever on a campaign that actually scrutinises with their GOTV, remember what kind of things can be done with good foresight, and clean data.

  13. @BGB, on the motion you quote:

    First, I’m not concerned about the unconstitutionality of any motion which is put forward and discussed, if that motion is not passed. In my experience the determination of whether or not something is “unconstitutional” is subject and open to debate and disagreement even between intelligent, disinterested parties. Therefore, one can put forward a motion that the mover and supporters believe is acceptable but others do not. That will generally be a part of the ensuing discussion and if the general consensus (or majority view) is that the motion would, in effect, break a rule, then it will be withdrawn or defeated. The same happens all the time in our own legislative process and it does not signal the decay of Canadian democracy. (Other things do that…)

    Second, I don’t agree that the motion was black-and-white unconstitutional, because it did not contradict the (current) constitutional requirement for a 2010 leadership race. If that resolution, and that one only, were to pass, then presumably there would be a leadership review at the BGM and if lost, Council would be empowered to ask May to step down immediately. If she passed, then a leadership race would take place anyhow but she would stay on as leader meanwhile. I don’t think that’s what the mover intended, but it would be the effect.

  14. @ Steve May, on EC rules:

    I’m in agreement with Ken (!) on this one. I have looked pretty carefully at the Elections Act and can’t see anything that would require May to step down during a leadership race. She could categorically remain as leader; she could retain her salary for performing leadership functions; she could even retain her expense account for valid expenses related to leadership functions. There would have to be careful accounting to ensure that such expenses were not bleeding towards leadership race activities. I think she would have to constrain her activities somewhat to facilitate that separation. But precedents exist for splitting costs/expenses between simultaneous activities such as campaigning for election and doing a book tour. (I know Tom Manley campaigned for leader while also travelling for business in 2004; May campaigned for leader while promoting a book in 2006.)

    So whatever this “legal opinion” is, I’d very much like to see it and see what basis it draws from. Our existing precedent is the opposite, and if Jim Harris had violated the law in the 2004 race, his enemies would have utilized that to the fullest.

    @ BGB:

    Please be more specific about when the Liberals had their leader step down in favour of an interim leader while the (esrtwhile) leader was running for re-election in the absence of having lost a review. When I think back, all the Liberal leadership races I can recall involved the leader stepping down in favour of an interim but NOT running for the next term. They either lose an election, lose a review, or just retire and in each case the seat is open for contenders. So perhaps I missed one?

  15. Just a quick response to a few things…yes, I heard about the contract that Elizabeth May has entered into with the Party…and I cringed! There are currently provisions in our Party’s Constitution for the Party to turf a sitting leader before a 4-year term is up. I would hope that any contract might have provisions for such an occurrence. I don’t know, and I don’t really care to know. But I accorded the discussion about the “contract” as much net worth as possible, and that to me was NIL. I could care the less what a contract says; I’m much more interested in what our Constitution and By-laws have to say about something, which is why my concern recently has been with the notion that a decision could be made in conflict with the by-laws, one which would require the leader to step down before finishing her term, due to Elections Canada requirements.

    There is conflict, apparently, between Elections Canada legislation and the Party’s by-laws. Our by-laws don’t require a leader to step down, but the contention by some (including a legal opinion) is that the leader should resign. And I have to think that’s the most appropriate course of action too, in order to avoid charges of favoritism and defence of one’s actions in front of Elections Canada.

    Also, I would like to apologize for my mistake. Upon further reflection, I agree that the motion requiring the leader to step down after a leadership review was out of order, and not in keeping with the contistution. There are processes to turf a leader in our Constitution. Failure at a leadership review isn’t one of them. I think that the review itself may have been ok as a straw-poll of the Membership, but it should have been limited in scope to “nice information, but meaningless” in terms to required outcomes. If, after polling, our Leader decided to step down, so be it, but it shouldn’t have been a requirement. Good news: the motion was sensibly defeated, and kudos to Councilor Brooks for speaking out so passionately against it.

    Yes, the motion itself surprised me, as it was “new” from the last meeting (although I do recall that something like this was discussed). I can understand why some would have viewed its arrival on the scene a little suspiciously.

    Finally, I appreciate your passion about this issue, and I regret that we find ourselves on different sides of this matter. I really don’t think we should be having a leadership contest this year, and therefore we need to change our By-laws at the BGM. I don’t really look forward to the spirited debate which I’m sure I’ll be a part of, but that’s the way it goes. Whatever decision the Membership makes, I’ll be satisfied to live with.

  16. Erich, yes, I realize that you don’t agree that the Leader would have to step down during a leadership contest, due to Elections Canada rules. I read your missive on that, and found it helpful. Apparently, there’s a difference of opinion on this out there, including some legal advice, which Council has had at this disposal. Your name came up regarding this matter last night, by the way, and it was noted that you aren’t a lawyer.

    Which isn’t to say you’re wrong, by the way. At least I’m not in a position to judge.

  17. @ Steve –

    No, I’m not a lawyer. But just about every dispute has a lawyer on each side of it, and each asserts that their view of the law is correct and the other’s is incorrect. You can pay for a legal opinion to support just about any view you like – after all, it’s only an opinion.

    The only legal opinion on this that I would credit is one from Elections Canada, and the current precedent actaully goes the other way. In fact, it’s essentially the same rules as apply to a riding nomination contest, and to the best of my knowledge Elizabeth didn’t step down or stop drawing salary while she sought nomination in SGI despite strenuous objections from her opponent. So the very recent precedent supports my interpretation – the burden is on others to prove me wrong.

    I’m not passionately invested, myself, but I do try to understand both the spirit and the letter of the law and this one seems pretty clear. So until I see evidence otherwise, opinion is opinion regardless of the source. Thirdhand accounts (your account of a councillor’s account of a lawyer’s opinion) won’t sway me.

  18. @ Erich:
    Whew! I’ve got some heavy lifting here. First off, we are debating in retrospect a post which was put up in order to obviate the risk of a ‘bad’ motion, (from my perspective at least), being passed by council. Once again, the motions calling for a review do carry an assumption that the review replaced a leadership contest period. Whether of not a lawyer would agree, most users and readers would bear that assumption away with them.
    I fully expected a vigorous debate, and if I didn’t think it was possible to influence the debate to produce the actual outcome, then I wouldn’t have written the post. Two problematic motions were not passed, and the question as to their legality is rendered moot, for now. I don’t think I would have been arguing that they really meant that there had to be a contest whatever the outcome of the review, I would have been at the root of the issue instead.
    I think that your comment about the Liberals is actually spot on. I cannot speak for the pre-Trudeau era, but I cannot think of a Leadership race, with an incumbent leader in it over all that time. I guess i was being lazy, and thought back no further than the fact that there have been a couple of interim leaders for the express purpose of maintaining neutrality during a race in recent years, but that’s an internal thing, not external.

    As far as Elections Canada, and the Elections Finance act, and the various amendments since Chretien introduced it, I think that we should all bear a huge caution in mind. There are problem area’s within the act. Many grey areas in fact. I would not always trust EC to administer it either. They have a tough job, and there are elements that have yet to be tested by a court trial. Look at the CPC in-and-out scandal. I believe that the CPC vs. EC lawsuit wasn’t only to shut EC up, and terrorise them into submission. The act was mute on the point of contention. I remember in 2005-6, EC had published some guidelines, in plain English to help Candidates to comply with the act. I don’t recall the specifics, but when I read the act, and compared it to the EC guidelines, there was the potential for a discrepency. The guidelines were to do with fundraising expenses, and I challenged EC on it. I was bumped upstairs a couple of times, until I was speaking with legal counsel there. They were good people with an impossible task. They agreed that their guidelines were based upon an interpretation, and were supported by the SPIRIT of the act, not the language. They basically said, go ahead and do something different, because this needs to go to court sooner or later, and now’s as good a time as any. (I paraphrase). Needless to say, our $5,500 campaign budget didn’t include a line item for a supreme court case. My point is that EC is not the competent judge either. They are beurocrats, and will take the path of least resistance, and are as much at the mercy of interpretation as we are, until such a time as a court provides guidance. Isn’t the law a wonderful thing? So while EC may provide an opinion, they do not make the rules, and will make many a mistake over the years.
    Legal opinions are not as malleable as you claim either. An honest lawyer will tell you if you’re out to lunch, and about to get into trouble. He won’t tell your counterparty, but we’re not talking about a lawsuit here. we’re talking about a cut and dried opinion, so if you hire a lawyer to give you the straight bill of goods, they will probably do their best to do so.

  19. Erich, my earlier comment was not intended in any way to detract from your opinion, or to get you to change your mind about it. In fact, it was just the opposite: you’ve actually looked into what the legislation says and you’ve formed your own opinion based on your independent analysis. Apparently, you’re not alone in that opinion, as at least one other poster here (Ken Summers) agrees with you.

    I, on the other hand, have never looked into the Elections Canada legislation, and I have not formed my own independent decision on this matter. At last night’s Federal Council meeting, though, it was clear to me that at least one person had looked into it, and had received legal advice which suggested that our Leader really should step down during a leadership contest. I’m not saying that’s somehow more “right” than your opinion (although I think someone else suggested that), just that it was a different opinion. I wouldn’t mind seeing the legal advice either, but it’s not going to happen, and I’d be foolish to ask, as the advice was presented to either Council or Campaign Committee and would not be something for general consumption.

    It was also the only legal advice discussed at last night’s meeting, despite the fact that Council had at least two weeks to look at some of the motions to be considered last night, and despite the fact that this very same issue came up two weeks ago, and likely as far back as November. Now, I can’t say that it was the legal advice argument which swayed Council to move away from holding an August leadership contest, because it was not apparent to me that those who were polled did so for that reason, and later voted down Dan Murray’s motion. I suspect it was probably a combination of different factors which influenced the decision-making process.

    What concerns me, though, is that we have a Constitution which is open to such disagreement amongst decision-makers on something as elementary as how and when we elect a leader of the Party. That’s a big problem, and something has to be done about it.

    Again, Erich, no disrespect was intended, nor was I trying to tell you that you are wrong or that you should change your opinion.

  20. Steve,
    I really have to briefly take issue with one thing you said. That a legal opinion regarding an interpretation of Canadian law, and it`s impact on the Party should not be for general consumption. I cannot think of a single rationale why not. That is, unless the intent was to ignore the opinion. How it could possibly be controversial, or dangerous to share this extremely pertinent information with those affected by it is beyond me.

  21. I’ll believe the legal opinion when I can see it. (And maybe not even then – legal opinions have been wrong before). As BGB notes, there is no reason to keep it confidential. Often people will post and publicize a legal opinion or brief in order to help make their point.

    The Eletions Act really isn’t all that complicated anyway. Just look it up yourself. Most of it is directed at local returning officers and how they compile the voters list, run the voting booths, count the votes, all that stuff. Judicial recounts, what if a candidate dies, what are the penalties for failing to file, who can or can’t be your agent or auditor, etc. The bits about party finance, leadership races, etc. aren’t so long or complicated. I could even point you to the relevant bits, if you like.

    And as BGB states, EC isn’t actually the final authority on interpreting the Act if there is a dispute. But in this case we have two precedents within our own party already – the 2004 leadership race and the 2009 SGI nomination. Both took place under Chretien’s law, both were disputed, neither involved the leader stepping down or forgoing salary or benefits in order to make it “fair” to their challengers. We live in a common law system, precedent or accepted practise have a lot of weight in any situation where the rules aren’t written clearly. (Even though I actually think they are pretty clear).

  22. There was a dispute in 2004? News to me. I helped Jim, we called the membership, but mostly we just canvassed the EDA executives across the country. Looking back on it, we worked out of Jim`s business location. He had a number of desks, and phones set up, as part of his regular business setup. Jim bought calling cards so that we could seperate the phone bills. Over a week or three, Jim, Rosalee Doering, myself, and I think few others came in and that was the entire extent of the campaign. I think it was Pilling who had a big falling out with Jim, and filed a complaint with EC. It was silly, because he was so very far away from any conceivable spending limit, and the complaint was about whether $600 should have been part of the leadership expenses, or was improperly borne by Jim`s business. Either way made no difference, as Jim was perfectly entitled to spend his own money on his own leadership campaign, he was nowhere near the limits, so where the expense was allocated had no material bearing. EC investigated the complaint, and dismissed it. Now all that is remembered is. `There was some kind of shenanigans with Jim`s campaign`.
    I don`t remember much about council bun-fights back then. So can you enlighten me further Erich?

  23. Mostly just curiousity:

    when people are talking about the ‘legal opinion’ are they in fact referring to Elizabeth May putting in her two cents during the Council meeting? IE, that the legal opinion is Elizabeth May’s?

  24. Just a couple of quick comments on the “legal opinion”.

    First off, my statement earlier that such an opinion really shouldn’t be for general consumption is predicated on the notion that legal opinions are offered on a solicitor-client basis. Where they are presented to decision-making bodies, they are almost always done so in-camera, for confidentiality reasons.

    I was curious about this opinion myself, and maybe this will answer Ken’s question too. From what I understand, based on what I heard at the last Fed Council meeting, was that a legal opinion was offered either to Campaign Committee or to Fed Council directly at the November meeting of Fed Council. I believe it was likely offered to Campaign Committee which then reported it to Fed Council. Elizabeth May reminded the Federal Councilors of this opinion several times on Sunday night, and named the solicitor who had provided it (it was not May’s opinion — although I failed to copy the name of the solicitor down).

    It seems to me that the opinion suggests that the most prudent course of action as far as Elections Canada rules go, should the leader of the GPC find herself in a leadership contest, would be to step down as leader. From what I gathered, this appears to be because of reporting requirements for finances to Elections Canada, as per the legislation. Two sections of the legislation in particular were quoted on Sunday night, identified as causing concern.

    So yes, while May lamented that she was the only lawyer on the call, the legal opinion she spoke about wasn’t hers, and it does seem to have been generally available now to Federal Council for some time. Despite that, and despite some questions from other Councilors (one of whom referenced Erich’s detailed analysis as to why a leader wouldn’t be required to step down as per Elections Canada), no other legal opinions were offered for consideration.

    Of course, this generated a fair bit of discussion amongst the Councilors, as it had at the previous meeting. It was my sense, though, that this discussion didn’t about the legal opinion, previous experiences in SGI which led to Stuart Hertzog’s filing a complaint with EC that he didn’t receive the same level of resources, and May’s 48-month contract didn’t play a significant role in Council’s desire to move ahead with the issue before, and ultimately decide to not hold a BGM in August, as the conversation seemed to be going around in a bit of a circle at that point anyway. But of course, I’m not a Councilor, and I was already quite biased with my own opinions regarding why it would be a good idea to not hold a contest right now, so I fully admit that maybe this whole argument had less of an impact on me.

    I agree that a legal opinion is just that, an opinion. And yes, sometimes (often) they are wrong, when tested before an adjudicator. However, they do generally present some pretty good advice. Seems to me that the legal opinion presented to Council back in November, whether directly or through Campaign Committee, likely represented the best legal advice available on Sunday night for Council’s consideration on the matter of whether the leader should step down as leader during a leadership contest.

  25. Thanks Steve. All that considered, here’s my blunt take. Blunt, but one with all the facts whether or not they help my point.

    It sounds like it was a legitimate legal opinion. But I would go further than Erich’s ‘just one legal opinion’.

    Consider the circumstances of the request for the legal opinion.

    Do you think that it was ever likely that May or the Campaign Committee ever was considering the desirability of going ahead with a leadership race as required? In other words- were they ever approaching this from the POV of- given our responsibility to begin implementing the steps of preparing for a leadership race, what should we be thinking about?

    How likely is it that they were ever considering what they needed to do to follow the by-laws? Because whether or not there was such a good faith attempt has a material effect both on what was the intended use of the legal opinion, and even on the parameters in which that opinion would be framed.

    The probable deficiencies in that regard notwithstanding- the likely prejudicing of the framing of the legal opinion- the cautionary influence of the legal opinion might still be legitimate….ie, have a warranted influence beyond the self interest.

    But let me tell you something about the general caution of Elizabeth May in regard to coming into conflict with Elections Canada…. she has consistently shown a high degree of disregard for the risks.

    She has done things I would never risk.

    For more than one of those things I’ve seriously considered making a formal complaint to Elections Canada. I decided there just wasn’t much chance of success, and I was on FAR better ground than someone considering putting Elizabeth May through the grinder for not stepping down as Leader during a leadership race.

    Someone trying the latter would be pioneering and pushing the envelope. Their real chances would be remote.

    Of course, she and the party COULD get into trouble. Hence the legal opinion. But was there a question about the chances of it being a legal problem? Which you have to press to get from a lawyer. Which brings us back to the point that it is material whether Elizabeth May only asked for the legal opinion she wanted and could be pretty confident she would get.

    And we’re supposed to believe that this is all because she wanted to stay on the safe side???? … the same person who had to be restrained from playing games with the Central Nova campaign spending limit [I don’t know who by, but presumably Maureen Murphy].

    Show me any evidence this isn’t a new found concern for being careful about Elections Canada rules.

  26. Similar to what Ken notes (but without casting as many aspersions), I can believe that a lawyer might point out some potentially problematic areas if there is a leadership contest with a sitting (salaried) leader. But this does not require a step-down and interim. Instead, one could just be cautious not to trigger any such issues, and perhaps consult closely with Elections Canada with an ask permission rather than ask forgiveness approach. Although they won’t go too far into hypotheticals, if you ask a direct question like “if I do this, and report it this way, is it okay?” they’re pretty good about giving an answer. Or you can even say “I’m doing this – is there any particular caution or guideline I should follow, or how should I report it?”

    The very clear precedent is that the SGI nomination pointed out some potential issues, Hertzog complained about them, and *Elizabeth was exhonerated*. That last part is the key. The main value of legal advice would be in how to stay even further from controversy. Sure, one could step down as leader – that would eliminate all controversy – but of course it creates other issues for the party. So the leader and/or party have to weigh the various drawbacks and make a decision. If the decision is made to stay on, it’s defensible and the party and Elections Canada could find a way to make it work. When it comes to elections rules, where there’s a will, there’s a way. (The CPC have certainly demonstrated this).

    To use this legal opinion to back an argument that the leader MUST step down, or even that it would be the best course, would be to misuse it. It should illuminate the potential risks and how to minimize them, but not be used as the final word.

  27. @ BGB –

    The 2004 leadership dispute was post facto, raised by Pilling and/or Gretchen Schwarz and/or Matthew Pollesol. His detractors wanted to throw anything at him that they could via complaints to EC and the media (during an election, no less); if being leader during the race were a problem, it would have come up at the time. It didn’t and EC cleared him. There were some mumblings in the lead up to 2006 that it would be illegal or improper for him to be leader and run for leader but they weren’t legally supported (IMHO) and instead rested on poor understanding of the rules; in any event, by stepping down he forestalled such complaints. (He was still blamed by some for backing one of the successor candidates behind the scenes, but if that were the case he left me out of it, which leads me to highly doubt it happened).

    There were some huge bunfights on council, especially around the Kate Holloway removal, but I really don’t want to dig into any of that ever again. Enough to deal with going forward.

  28. @Erich:
    “– but of course it creates other issues for the party. So the leader and/or party have to weigh the various drawbacks and make a decision. If the decision is made to stay on, it’s defensible and the party and Elections Canada could find a way to make it work. When it comes to elections rules, where there’s a will, there’s a way.”

    I agree, and I have never advocated that she should have to step down during a race. It would be easier to unseat her then, but it’s an extreme position, and there’s not much to support the conclusion that it’s needful. Sure it couldbe discussed, and I would never try to stop it, but I wouldn’t be out there pushing it hard.
    Last fall, I actually expected that a fairness committee would be struck, and that these issues would be put to bed by that committee in the interest of a good contest. If the Fairness committee should be slightly re-balanced for impartiality, then it still might happen that way. That’s all I want to see, a fair race.
    Again, you have remembered the detail I forgot. Pollesol, not Pilling cast the dart at Jim.
    I concurr completely that Jim was entirely neutral during the last race. In the aftermath of the 05-06 election, I spoke with him and he was pretty adamant that he was and would be leader. In the ensuing two months, he had some kind of epiphany, and once his decision was made, he was very scrupulous. He did come to a couple of EMay events we put together, and he did help raise a little money for her, but I’ve known him for years, and I challenge you to try and stop him from raising some money at any Green themed event! It’s his calling card that he will take the microphone, and squeeze some dollars out of any room that has an audience, and a microphone.
    I’m not blind to his weaknesses, but todays Green Party was born in Jim’s head, and he cares for it deeply.

    Please do NOT raise the Holloway removal. I’ve been trying to head off that scenario since November. If you push people to the wall, then they’ll come back swinging. Extreme positions breed extreme responses. Attack, response, escalation, response, and so on until the lawsuits are flying. That lesson was driven home during the Holloway affair. Time to break the cycle before it goes too far. Hey, how about leadership race to clear the air?

  29. Heh, yeah right.

    Oddly enough I’ve had people tell me that Jim was supporting Chernushenko as the “organization man” vs. the “outsider” May. Total BS, because if that were the case I’d have been at the top of Jim’s list of folks to involve. There was no call, no behind-the-scenes campaign. If some of Jim’s associates worked on David’s behalf, it was all their own choice. He had friends/associates (or minions/henchment/whatever derogatory term you might cast) working on each side and neither. Jim was a model of impartiality. And if not for his leadership 2003 – 2006 we would not have attracted a name as big as May to contend.

  30. “And if not for his leadership 2003 – 2006 we would not have attracted a name as big as May to contend.”

    Erich, don’t go blaming Jim for that ;-)

  31. The unjustified abuse Jim Harris was subjected to was scandalous. The federal council didn’t just do nothing about it; it really enabled the Holloways, Pollesels, Schwartzes, Pillings, etc. to defame him. And Jim just endured it all. It must have been extremely hard. He really had the patience and fortitude of a saint.

    For bluegreenblogger’s information, the level of acrimony in the party is presently nowhere close to what it was in 2003-06. The Mayites aren’t even close to as vicious as the Holloways, Pollesels, Schwartzes, Pillings, etc. were. On the other hand the Green Party now has a much less impressive leader than Harris.

    I look forward to the fallout from the coming federal general election. There will be no more excuses for the Mayites.

    (I realize that you are all trying to avoid an election debacle. I am resigned that there will be one. The Mayites seem almost desparate for electoral and financial suicide by their actions.)

    Markus Buchart
    Winnipeg, Manitoba
    (Not a Green Party member)

  32. Markus:

    Much as I like Jim Harris, I think that he (and David Chernushenko, for that matter) deserve some of the blame for the state the party is in. I understand why neither one wanted to get their hands dirty in trying to clean up the organizational chaos of the GPC. But it was ultimately a very bad move because it meant that the organizational reasons that the party suffers internal chaos were never dealt with. It ended up biting each of them in the butt. I hope that the next leader is willing to expend political capital to put the party in the hands of the local organizers and take it away from the conference bunnies and consensus thugs.

  33. @Bill,
    I guess that`s kind of an underlying assumption for me. The governance model is broken, fortunately not beyond redemption. The outgoing leadership has exploited it quite cleverly, but now that we have a new leader on the horizon, we have a great opportunity to fix what`s broken. Your`input will be valued, your`contributions will be recognised, and imitated widely, and the EDA`s will finally get the kind of organisational support that they need to take the Party to the next level.

  34. Bill,

    Yes, I concede that there may be some truth in what you have written above. But, I say the following in defence of Jim Harris (and David Chernushenko).

    It’s not the responsibility or job of the party leader (or deputy leader) to run the internal administration of any political party. Leaders (and deputy leaders) are external spokespersons for their parties. The internal administration is the responsibility of the party president and chief executive officer or, in the Green Party’s case, the party chair and executive director. Only in the smallest, most rudimentary organizations should the leader be doing any administrative tasks.

    Harris (and Chernuskenko), to the extent that they contributed to the administrative organization of the party, deserve credit for their positive contributions. They stepped into a vacuum and made it, well, less vacuous. If the party organization was/is a train wreck, it’s not their train wreck. Others who were actually responsible for party administration deserve the primary blame.

    I know that you were always one of the people who understood the need for internal reforms and promoted them constructively at every chance. But you’re right that the party’s structural problems were never dealt with. I have no hope left they ever will be.

    Markus Buchart
    Winnipeg, Manitoba
    (Not a Green Party member)

  35. […] didn’t make sense to have a post with a shelf life of 1 day hanging around on the front page, so I’m bumping it with a post on the outcome of […]

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