WINNIPEG – A Manitoba judge says he plans to decide by March whether to strike down as unconstitutional a law that forbids provincial politicians from switching party caucuses.
Court of Queen’s Bench Justice Sheldon Lanchbery reserved his decision Monday in a lawsuit by Steven Fletcher, a legislature member who was kicked out of the governing Progressive Conservative caucus last summer. He criticized the government’s plans to establish a Crown agency to promote energy efficiency.
Under a law introduced by the former NDP government in 2006, Fletcher must sit as an Independent until the next election and cannot cross the floor to another caucus. Or he could resign his seat and run in a byelection under another party banner.
Fletcher’s lawyer told court the restriction violates Fletcher’s freedom of expression and association under the Charter of Rights and Freedoms.
“The breach of the charter is plain, obvious … and intentional,” Bill Gange said.
Manitoba is the only province with such a restriction, Gange said. As an Independent, Fletcher has fewer opportunities to participate in question period, sit on committees or introduce bills, he argued.
The government’s lawyer said legislatures have the authority to set their own rules without undue interference from the courts.
“This is a matter of parliamentary privilege,” Michael Conner said.
“The court does not have jurisdiction.”
Conner also told the court that Independent members already participate in legislature proceedings. The three Liberal members, who are considered Independents because they lack the four seats needed for official caucus status, ask questions, sit on committees and table bills.
The ban on floor-crossing does not prevent Fletcher from working informally with any party or from taking out a party membership, Conner added. It only prevents him from being an official caucus member in the legislature.
The Progressive Conservative government has indicated it will eliminate the ban in any event — deeming it bad policy rather than unconstitutional. But a bill introduced earlier this year to lift the ban stalled and the assembly is on a break until March.
Lanchbery said he plans to hand down his decision before then.
The Tories still have a strong majority with 39 of 57 seats. The Liberals could attain official party status if Fletcher were to join them, but Liberal Leader Dougald Lamont has said he is not interested in having Fletcher onboard.
Gange said outside court there are other possibilities if the ban on floor-crossing is lifted.
“What if there were three other members of the Progressive Conservative party that were disillusioned with the premier and wanted to form a party?”
Something similar happened federally in 2001 when Deborah Grey, Chuck Strahl, Monte Solberg and others left the Stockwell Day-led Canadian Alliance and formed the short-lived Democratic Representative Caucus. Most rejoined after Stephen Harper became leader.