Emerson's defection raises legal issues

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

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

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

Dimitrov said that several things must occur before an elected person becomes an MP. The chief electoral officer must send a letter to the clerk of the House of Commons with official notification that the candidate has been elected. Dimitrov said this is usually in the form of a copy of a notification published in the Canada Gazette stating that the person has been elected and represents a certain party.

He pointed out that the Canada Gazette published a notice on February 6 stating that Emerson had been elected as a "Liberal" in Vancouver Kingsway. However, February 6 was the same day that Emerson was sworn in as a Conservative cabinet minister. "So therefore, one can at least conclude that the electorate in Vancouver Kingsway didn't even get a day of service from Mr. Emerson as a Liberal," Dimitrov said.

Dimitrov emphasized that Emerson campaigned as a Liberal, and that there were large lawn signs in the riding indicating his affiliation with the Liberals. People also made donations to the Liberals, and the ballot identified Emerson as a Liberal. "In my mind, there was a legitimate expectation within the minds of the citizens of Vancouver Kingsway that if elected, Mr. Emerson would sit as a Liberal," Dimitrov said. "Indeed, if the Liberal party was not elected to government, he would be there as a vocal voice in the Opposition."

Last week, the Straight erroneously wrote that Dimitrov has invited citizens to approach him if they want to pursue a class-action lawsuit against Emerson. In fact, Dimitrov has never said he wants to launch a class-action suit against Emerson. Dimitrov has written two articles on his Web site, www.bcpolitics.ca/, addressing various legal issues concerning Emerson's defection to the Conservatives.