NDP court challenge could affect balance of power, especially if others follow suit, lawyer says

·4 min read
Lyle Skinner is a constitutional lawyer who specializes in parliamentary law. (CBC - image credit)
Lyle Skinner is a constitutional lawyer who specializes in parliamentary law. (CBC - image credit)
Lyle Skinner is a constitutional lawyer who specializes in parliamentary law.
Lyle Skinner is a constitutional lawyer who specializes in parliamentary law.(CBC)

Lyle Skinner, an Ottawa-based constitutional lawyer based who specializes in parliamentary law, has been following Newfoundland and Labrador's election from its start. He says how it ends may depend on whether anyone else wants to join NDP Leader Alison Coffin in taking the election process to court.

"This is part of the accountability mechanism. If anybody has any questions on if the election was conducted in a fair manner, then they can go to the court and ask the court to judicate that," Skinner said.

Coffin and St. John's resident Whymarrh Whitby jointly filed a court challenge on Monday against Elections NL, arguing that the most recent general election discriminated against voters based on ethnicity, age or disability, while also excluding people without internet access and those in Indigenous communities.

The application is separate from a challenge that Coffin filed earlier this month requesting a recount in her former district of St. John's East-Quidi Vidi, where she lost by 53 votes.

This challenge is more bold: it asks that the Supreme Court to void last month's election results entirely.

The Elections Act holds that a candidate or voter of a particular district can bring forward an application over an irregularity, Skinner said. The application filed on behalf of Coffin and Whitby lists 28 specific "irregularities," including Chief Electoral Officer Bruce Chaulk's hand-delivery of ballots to former PC leader Ches Crosbie and Liberal cabinet minister Siobhan Coady.

Voiding election through a single application

But Skinner said it appears Coffin's application is attempting to use a Charter of Rights and Freedoms argument to attempt to void all 40 districts through a single application.

"Whether or not that will be successful will be for a judge to determine before they would consider the merits of the particular case, as it may be," he said.

NDP Leader Alison Coffin and a resident in St. John's jointly filed a court challenge on Monday against Elections NL.
NDP Leader Alison Coffin and a resident in St. John's jointly filed a court challenge on Monday against Elections NL.(CBC)

If the challenge is successful, and all 40 of the province's districts are void, Skinner said a second election will be issued, but it will be different than a regular general election.

"The premier at any time can advise the lieutenant governor to dissolve the assembly. So in this case the assembly would still exist, it just wouldn't have any MHAs which from my research would be somewhat unprecedented," he said.

If results are void for one district, Skinner added, it could still have a significant impact. A new election would be issued for that district, and if the incumbent is not returned there could be a cabinet shuffle and impacts on voting in certain committees.

The possibility that all 40 districts will become void, in turn causing another election, may depend on the number individuals who feel there was an irregularity with this year's election, said Skinner.

He said Monday's application may only be the first, and there's a window of two months since the day after a polling day in which people can bring forward their own applications.

Balance of power may be affected

Elections NL announced the results March 27. Voting had been suspended on the eve of the scheduled Feb. 13 election because of an outbreak of the COVID-19 virus variant B117. Chaulk pushed the province to mail-in ballots, although he adjusted the deadline to participate several times.

WATCH | Lawyer Lyle Skinner tells Carolyn Stokes about the implications of a new NDP court challenge:

"So it really depends on how many districts are being challenged, and again — even if there's only one or two, that might affect the balance of power," Skinner said.

Andrew Furey's Liberals won 22 of the 40 seats in the House of Assembly. The Tories won 13 seats, the NDP won two, and three Independents were elected.

"If the government goes into a minority government situation, the premier is within his prerogative to make an appeal to Newfoundlanders and Labradorians and advise dissolution and commence an election in that way," Skinner said.

"It doesn't have to be through the legal process through all 40 districts. There's also a political constitutional avenue as well."

In 1993, the results for the district of Placentia were marked invalid because 55 voters, who didn't have proper documentation with respect to making an oath, totalled more than the 21-vote difference between candidates. Tory Nick Careen defeated Liberal incumbent Bill Hogan in that election.

"The court said that when a situation materially affects the results such as that, that no other factors are really considered. It's that the irregularity could potentially affect the outcome," said Skinner.

"In that case, because there was no further evidence produced, the results were voided and a second election occurred subsequent."

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