Vaughn Palmer
In Victoria
The former head of Elections BC has defended his office's helping hand to organizers of the petition against the harmonized sales tax, saying the effort did not amount to a "coaching process."
Rather it was standard operating procedure, says Harry Neufeld. He ended his term as the independent chief electoral officer in June, four months after approving the anti-HST petition and an accompanying legislative initiative to extinguish the tax.
The back-and-forth began with a submission to Elections BC by proponent Bill Vander Zalm. As required by the law governing initiative petitions, he included a proposed draft bill, the HST Extinguishment Act.
As Vander Zalm himself described the process last month, "they had their lawyers go through it and get back to us, question us about certain things. We got back to them. The process lasted several weeks."
That jibes with Neufeld's version. "We had the proposed bill that Mr. Vander Zalm submitted to us reviewed by constitutional lawyers. We had a process where we had concerns."
The information exchange was not wide open. "We didn't put the lawyers together with Bill Vander Zalm or anything like that," he assured me during an interview on Voice of BC on Shaw TV last week. "But we expressed the concerns to Mr. Vander Zalm. It was a process that those concerns were addressed over time."
The key consideration was whether the proposed legislation met the criteria for legislative initiatives.
The measure must be constitutional -- within the powers of the provincial legislature -- clear -- understandable to the average voter -- and unambiguous -- so the folks who sign the petition won't have any doubt what they are endorsing.
Eventually Vander Zalm and his associates managed to produce a draft bill that met all concerns.
"The lawyers said: 'Okay, this meets the criteria of clarity and being within the authority of the province.' We said: 'That's it. We're going to stop here and approve the bill in principle.'"
I asked Neufeld about the rationale for such an interactive involvement by Elections BC. Why not simply accept the proposal as initially written or reject it and let them try again?
"Well, you could do that," he said, "and I'd probably have a judicial review to face [for] being administratively unfair."
The process was the same for ex-premiers as for anyone. "If you submitted an initiative petition to my former office and you're not a lawyer, and you wrote it up in a way that was legally questionable, the office would not just say, 'No, try again.'
"It would be an administratively respectful process, where you say, 'There are concerns around these aspects of what you're proposing.' There's always this respectful back-and-forth about saying, 'Well, these are concerns that we'd like to see addressed before it goes to the next step.'
"That's all that's happened," he said. "It's not a coaching process."
Neufeld approved the initiative Feb. 4. Signature gathering began April 6. The petition was submitted to Elections BC June 30. The office is now verifying an estimated 700,000 signatures, with a favourable verdict expected Aug. 11.
But on Aug. 16, B.C. Supreme Court is scheduled to hear a court action, mounted by six business groups, challenging the proposed legislative initiative on the grounds that were the focus of the back and forth between Vander Zalm and Elections BC.
"The proposed legislation does not satisfy the requirement that it be clear and unambiguous and fall within legislative competence of the [provincial] legislature," says the preliminary court filing directed at both Vander Zalm and Elections BC. "Accordingly the decision of the chief electoral officer to approve the initiative petition constitutes both an error of law and a jurisdictional error."
What about it? I asked Neufeld.
"The office did its due diligence," he replied. "Now, what happens with this judicial review might suggest that that wasn't adequate due diligence, but I thought we did our job."
Before leaving office Neufeld declined to make public his own legal advice. Today, he notes that he is no longer in the office and the matter is before the courts.
"There's a judicial review process going on, and I'm sure all of this will come out in that. It's probably inappropriate for me to comment."
With Neufeld gone, the job of replying to the court filing fell to the interim chief electoral officer, Craig James. He was appointed in June, after taking a leave from his post as one of the independent clerks of the legislature.
In an affidavit filed this week, James indicated the office will not be actively defending the initiative. "The role of Elections BC in this proceeding should be neutral and confined to explaining the record where necessary and providing insight to the court on the process followed."
But as for the legislative validity of the proposed HST Extinguishment Act, that case will have to be made by Vander Zalm, Elections BC having stepped aside from the fray.
