FIRST READING: B.C. NDP hints at lawsuits if Conservatives win the election they called

Premier David Eby and Attorney General Niki Sharm pictured in 2023. Photo by Felipe Fittipaldi /Government of British Columbia

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After the B.C. Conservatives immediately took the lead in an election called by NDP Premier David Eby, one of Eby’s deputies suggested that a future Conservative premier could be rendered illegitimate by a lawsuit.

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Last week, NDP candidate Niki Sharma – who served as the province’s attorney general until the Sept. 25 election call – told a digital news conference that since Lorne Doerkson is an interim leader of the B.C. Conservatives, any premiership he wins could be contested in B.C. Supreme Court.

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As Sharma explained in an email to Business in Vancouver, “(the B.C. Conservative) constitution is legally binding, and it cannot simply be ignored or rewritten behind closed doors — that would break the law.”

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She added that party membership would “likely win” any challenge of Doerkson’s position.

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The B.C. Conservative constitution is indeed clear that any leader must undergo a formal process of nomination and election by party membership.

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But the entire reason that an interim leader is representing the B.C. Conservatives in a general election is because Eby called said election at the precise moment the party became leaderless.

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The Conservatives’ last elected leader, Kerry-Lynne Findlay, resigned on Sept. 20 in the wake of more than a dozen defections from her caucus.

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Less than 48 hours later, Eby called a snap election for Oct. 24.

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Although it’s not explicitly forbidden to call a snap election when one’s opposition is leaderless, it’s not conventionally done.

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Just two days before Eby’s election call, former Alberta premier Jason Kenney wrote on social media of “an iron clad constitutional convention in Canada’s Parliamentary system” under which elections are not called while “one of the major parties is choosing a Leader.”

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Given that the process to formally elect a new leader takes at least 42 days, the B.C. Conservatives were subsequently forced into the campaign with Doerkson, who was appointed interim leader shortly after Findlay’s resignation.

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What Sharma appears to be referring to, however, is a clause in the B.C. Conservative constitution mandating that the interim leader “may not be a Leadership Candidate” in any selection of a permanent leader.

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Thus, if Doerkson wins the election and is sworn in as premier, his party’s governing documents technically hold that he must step aside as soon as another leader is selected.  

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But even so, none of that would conflict with his ability to remain first minister of B.C.