Suspension of the PC Party Constitution by Usurping Article 18

Suspension of the PC Party Constitution by Usurping Article 18

To: The Executive of the Progressive Conservative Party of Ontario

Date: Tuesday, October 17, 2017

Delivered Via Electronic Mail

Re:      Suspension of the PC Party Constitution by Usurping Article 18

Dear PC Party of Ontario Executive Members:

Rick Dykstra, President, rick.dykstra@ontariopc.com; Vice Presidents: Jag Badwal jag.badwal@ontariopc.com; Kaydee Richmond kaydee.richmond@ontariopc.com; Luca Bucci luca.bucci@ontariopc.com; Elanor Brodie elanor.brodie@ontariopc.com; Zack Goldford zack.goldford@ontariopc.com; Marc Marzotto marc.marzotto@ontariopc.com; Gaggan Gill gaggan.gill@ontariopc.com; Alanna Newman alanna.newman@ontariopc.com; Heather Kenny heather.kenny@ontariopc.com; Kevin Weatherbee kevin.weatherbee@ontariopc.com; Thomas DeGroot Thomas.degroot@ontariopc.com; Aaron Hopkins aaron.hopkins@ontariopc.com; Tony Vella tony.vella@ontariopc.com; Derek Parks derek.parks@ontariopc.com; Diane Suski diane.suski@ontariopc.com; Jason Pollock jason.pollock@ontariopc.com; Mathew Rae matthew.rae@ontariopc.com; Justin Van Dette Justin.vandette@ontariopc.com; Richard Ciano, Past President Richard.ciano@ontariopc.com; Sandra Larmour, President PC Women in Politics; Sandra.larmour@ontariopc.com; Marisa Maslink, President PC Campus Association, marisa.maslink@ontariopc.com; Kinsey Schurm, President PC Youth Association, kinsey.schurm@ontariopc.com; Jim Kwan, Secretary, jim.kwan@ontariopc.com; Abraham Elias, Treasurer, abraham.elias@ontariopc.com  

Please accept this letter in your capacity as a member of the executive (“Executive”) of the Progressive Conservative Party of Ontario (“Party”) pursuant to its constitution (“Constitution”). We write to you in our capacity as concerned members of our Party. Cumulatively, we have organized more federal policy conferences and related policy consultations across this province in the past decade than anyone else in Ontario. Our political experience, legal training, and above all our constitutional duty, as loyal party members, to uphold the Constitution, compel us to provide this communication.

As a member of the Executive, you have certain rights and certain responsibilities prescribed by the Constitution. We assume you know that Article 9.1 of the Constitution states that every member of the Executive must also be a member of the Party. Article 7.1 also states that every member of the Party must “uphold [the] Constitution”.

That Constitution, in Article 9.9, gives the Executive the power to craft “rules and regulations”. But Article 9.9 also states that all “rules” created by the Executive are to be “subject to the provisions of this Constitution.” The Executive’s power to make “rules” is derived from the higher authority of the Constitution, and does not permit “rules” that supersede, nullify, invalidate, or otherwise contradict the Constitution. The Constitution serves as the statements of principles that govern the Party’s business. The power to change the Constitution itself rests with Party members, through their delegates, and only where exercised with the support of at least two-thirds of the votes cast by such delegates at a properly constituted general meeting of the Party – a high threshold. So, it cannot be changed at the whim of the Leader, the Party President, or the Executive, or by any set of “rules”.

Our purpose in writing you today is to point out that you, the Executive, have violated Article 9.9 of the Constitution. The “Rules Governing Policy Development and Adoption Process” that you adopted as amended on October 11, 2017 (“Rules”) contradict, violate, and are clearly not subject to the Constitution. They are unconstitutional. Instead of acting “in accordance with the constitution” (as paragraph 1(c) of the Rules suggest), the Rules constitute an ultra vires assertion – “beyond your powers” - that the Executive has the power to render null and void certain constitutional obligations which the Executive might find inconvenient, and replace them with new “rules,” despite the Constitution.

Furthermore, the individual members of the Executive who have supported such measures are in violation of their own obligation to “uphold the Constitution” as members of the Party pursuant to Article 7.1.

Whether your violations were deliberate, or due to negligence based on a combination of ignorance and following the instructions of others, the result is the same: the Rules have supplanted and corrupted the legitimate governance of our policy process as mandated by Article 18, and usurped the Constitution. You have enabled the will of the Leader to temporarily triumph over the will of the Party, and its membership, with respect to the development of policy pursuant to the Constitution. You have replaced the democratic expressions of governance outlined in our Constitution with “banana republic”-style governance.

We present, below, the most salient and substantively fundamental breaches that we have been able to identify as of the date of this letter.  If there may be more, we reserve the right to identify further grievances as they are discovered.  

Violations of Article 18.6 of the Constitution

Article 18.6 of the Constitution provides two methods for a “Proposed Resolution” to become a “Recommended Resolution:” either by the appropriate PAC (as defined in the Constitution) analyzing and reviewing the Proposed Resolution, or by way of a “majority vote of the delegates present and voting at the next Policy Conference.” This constitutionally-mandated process cannot be replaced or omitted. The Executive cannot create its own method of determining whether a “Proposed Resolution” becomes a “Recommended Resolution” that is different from one of these two methods identified in the Constitution. Nevertheless, this is what you have done. 

In paragraph 1(d) of the Rules, the Executive determined that all members of the party shall be “entitled to express their views and participate in the consideration and adoption of policies through a “one-member one-vote” system”. We understand that the main proponent of this initiative has been Executive member Kaydee Richmond, and she should be commended for this initiative. We applaud the principle behind the objectives of ‘breadth and inclusiveness’ and further endorse the broad notion that all “Eligible members” should be entitled to express their views and participate in the consideration and adoption of policies though a ‘one-member one-vote’ system.” We also support the idea that “one-member one-vote” has a certain appeal over “limiting such participation to a select handful of delegated Members.”

At some future, properly constituted, Annual or Special General meeting of the Party, a proposal to replace the “policy convention” with such a “one-member one-vote” should be considered as a constitutional amendment. Until then, however, the Executive has the right only to add additional layers of consultation to the policy process one of which may be a “one-member, one vote” review.  A review of this nature can and must only be done in addition to what is mandated by the Constitution: all Proposed Resolutions are considered by a vote of all delegates present at a Policy Conference. The Executive cannot replace delegates voting on Proposed Resolutions at a Policy Conference with an alternative method, as you have attempted to do.

Furthermore, on October 12, 2017, you, the Executive, flouted due process by illegitimately making further fundamental changes to the Rules after local policy meetings had been completed and Proposed Resolutions were submitted. The most important change to the Rules noted on this date was the inclusion of paragraph (h) in Section 3 that states:

The Leader shall have the power to veto any Recommended Policy or Proposed Policy if the Leader believes it to be in the best interests of the Party, and to advise the Policy Chair in writing of such vetoed policies. Any policy so vetoed shall be omitted from the Recommended Policies and the Proposed Policies, and not reported to or voted on by the Members, notwithstanding any other provision of these Rules.”

The Leader has no such power.  We are stupefied that the Executive believes it can adopt such an anti-democratic rule, let alone purport to do so. The Leader has no right to veto any policy proposal, and thus deny the membership of the Party their constitutional right to both vote on such a proposal and have a report on the consideration of the proposal provided to them at the Policy Conference.

This paragraph 3(h) of the Rules is the clearest violation of the Constitution and the most direct contravention of the clear expressions of democratic governance outlined in our Constitution regarding the policy process. Furthermore, spuriously inserting this paragraph into the Rules in the middle of an ongoing policy process brings the entire process into disrepute.  It is a serious violation of properly constituted due process.

Your actions are especially troubling considering the fine democratic sentiment expressed in paragraph 3(h) of the Rules, cited above. If you are sincerely concerned with “the breadth and inclusiveness of the Policy Consultation Process” why would you add such a rule so late in the process? If you are willing to go so far as to violate the Constitution in order to champion “one member, one vote” over “a select handful of delegated Members” in your revised Rules, why would you then condone such an illegitimate, unprecedented, and anti-democratic veto power for the Leader?

The writing of such an illegitimate Rule by Executive, the accepting of such an illegitimate Rule by the Leader, and the exercising of illegitimate power by the Leader, are all clear violations of the Constitution. The failure to repudiate these actions calls into question the collaborators’ membership status in the Party, loyalty to the Party, and the most solemn constitutional obligation every Party member has:  to “uphold the Constitution”.

In the 2015 PC Leadership Campaign, then-candidate Patrick Brown said:

“never again are we going to see a policy platform, out of left field, by a small group at Queen’s Park of 32 on a policy platform committee, that did not listen to the candidates, that did not listen to the grassroots.”

Little did we know, in 2015, that, in 2017, the imposing would be done not by 32 people, but by a committee of one: The Leader, Patrick Brown. 

Violations of Article 18.5 of the Constitution

Article 18.5 of the Constitution states that any member of the Party may put forward a Proposed Resolution on policy for consideration at a Policy Conference. Furthermore, the policy chair is obligated to “report” on all Proposed Resolutions “at” a Policy Conference. The policy chair is also obligated to “report” on the “results of the review” of such Proposed Resolutions under the policy development process and by the appropriate PAC. Further, if a Proposed Resolution has become a Recommended Resolution under the process it is to be reported as such at the Policy Conference. Finally, if a Proposed Resolution has been “declined”, the Constitution mandates also that the result “shall be so reported” at the Policy Conference.

By determining which Proposed Resolutions are deemed to be “Recommended Resolutions” prior to the Policy Conference and prior to the delegates’ opportunity for a vote on the Proposed Resolutions, you, the Executive, are in direct violation of the policy process as mandated under Article 18 of the Constitution. In addition, you have usurped the constitutional right of any member of this Party to put forward a Proposed Resolution for consideration at the Policy Conference. The Executive does not have the authority to create a separate online process in advance of the Policy Conference that then purports to replace proper consideration of a policy proposal at the Policy Conference. The members’ right to put forth a policy proposal and have it considered at the Policy Conference is constitutional.  It cannot be alienated from them by the Executive or through some “rules”. Furthermore, the policy chair is required to report, at the Policy Conference, on: all Proposed Resolutions, the outcome of the PACs’ review, and the consideration of the policy proposal by the delegates voting at the Policy Conference.

The Executive cannot purport to replace this obligation by having the policy chair report only on Recommended Resolutions as chosen by the PAC while ignoring all other policy proposals. 

The Importance of Policy Development

Policy development is an extremely important expression of a healthy internal party democracy. The Constitution’s Article 18.6 and 18.7 assert that the policy proposals to be debated and approved by a majority of delegates at a Policy Conference “constitute the foundation on which the Party policy and legislation is developed”. The process in Article 18 expresses a constitutionally binding obligation on the Party which it is your duty, as the Executive, to implement.

Nevertheless, the method that you, the Executive, have set out in the Rules purports to suspend the provisions of Article 18 and circumvent several constitutional obligations. These Rules are therefore automatically null and void under our Constitution. We are confounded, and profoundly disappointed, that the members of Executive would seek to enact such Rules, especially in light of their commendable efforts to broaden the franchise of policy decision making through the introduction a one-member, one-vote consultation principle - however constitutionally flawed these first efforts may have been. 

Reverse the Usurpation of Article 18 of the Constitution

We therefore call on the Executive to remedy the constitutional violations we have laid out above and do what is necessary to ensure that the policy process in advance of the anticipated June 2018 provincial election be conducted in accordance with the Constitution by:

  1. Publicly acknowledging that the current Rules are ultra vires with regards to our Constitution, and committing, as is your obligation as a member of this Party, to upholding the Constitution for the remainder of your term on the Executive;
  2. Revoking the current policy process as adopted under the Rules and cancelling the November 25 policy “event”, which does not fulfil the constitutional requirements of a Policy Conference;
  3. Revoking the current Rules and replacing them with new “rules” regarding the policy process that are “subject to” and respect our Constitution;
  4. Upholding the Constitution by immediately making arrangements for a properly constituted, delegated, Policy Conference, to be held later this winter (perhaps in February). The reference in our Constitution to a “majority vote of the delegates present and voting” at Policy Conferences explicitly testifies to the requirement of delegates and majority votes if a Policy Conference is to be properly constituted. Thus, the Executive must call a General Meeting for this winter and incorporate the Policy Conference into that General Meeting or, alternately, call a Special General Meeting to which Article 17 (“Delegates to Special General and General Meetings”) would apply; and
  5. Addressing the serious illegality of the actions of the Executive IF the Executive had retained legal counsel that advised that the Rules were in violation of the Constitution. That circumstance would indicate that the Executive’s approval of the Rules was a deliberate and a willful violation of the Constitution. If, however, legal counsel had been retained and did not advise the Executive that the Rules were a violation of the Party’s Constitution, then immediately terminating the services of any legal counsel retained, demanding a full refund of all fees paid by the Party for such services, and submitting a complaint to the Law Society of Upper Canada for such negligent legal advice.

A failure to remedy these substantive breaches of the Constitution will continue to delegitimize and effectively obliterate the democratic principles that govern the policy process outlined in our Constitution. It will result in a sham, illegitimate policy process. Most importantly, if you do not remedy these offenses, it will force Party members to consider any and all other avenues to ensure the rule of law governs our Party’s business once again. It will also constitute a willful decision on each of your parts to refuse to “uphold the Constitution.” It will call into question your loyalty to the Party and the legitimacy of each of your memberships in the Party. Your refusal will make a mockery of our Party’s attempts to present ourselves to Ontario voters as an ethical replacement to the corrupt Ontario Liberal government in time for the next election. This will have happened on your watch, under your power.  We trust that your loyalty to the Party and your constitutional obligation to “uphold the Constitution” will compel you to right these wrongs immediately.

We await a reply as to your decision.

On behalf of all members of the PC Party of Ontario whose rights have been violated with the suspension of Article 18 of the Constitution, we remain yours sincerely,

   

Jim Karahalios

Member, PC Party of Ontario, Cambridge Riding Association

Kara Johnson

Member, PC Party of Ontario, Ottawa—Vanier Riding Association

cc.

Walied Soliman, Campaign Chair, PC Party of Ontario, wailed.soliman@ontariopc.com; Bob Stanley, Executive Director, PC Party of Ontario, bob.stanley@ontariopc.com; Mike Richmond, Legal Counsel, PC Party of Ontario, mike.richmond@ontariopc.com; Patrick Brown, Leader, PC Party of Ontario, Patrick.brown@ontariopc.com; Riding Association Presidents, PC Party of Ontario; Members of Provincial Parliament, PC Party of Ontario Legislative Caucus