A 91原创 voter who cast a ballot in the 2022 civic election would have grounds to bring a constitutional challenge in court against Mayor Ken Sim and his plan to abolish the elected park board.
So would the chair of the seven-member elected board, according to lawyer Elliot Holzman, who was retained by the board for $5,000 to provide a legal opinion on whether commissioners had any recourse to fight Sim’s move.
Such a challenge would only come if the provincial government acts upon Sim’s request to make changes to the 91原创 Charter. If granted, the business of parks and recreation would fall under the jurisdiction of city council.
“A person who voted in the last election would have grounds to bring a constitutional challenge if such a provincial act or regulation was promulgated,” Holzman told commissioners at a meeting Monday night.
In a memo provided to commissioners, Holzman elaborated on the mechanisms via the 91原创 Charter of Rights and Freedoms for a voter, voters or the chair — in this case, Brennan Bastyovanszky — to take court action to keep the elected board.
“A voter in 91原创 could step forward and allege that their right under Section 2 (b) of the Charter has been infringed by an action abolishing the park board mid-term,” he said.
“That is because their political expression, through their vote for seven park board commissioners for a term of four years would have been extinguished mid-term.”
Secondly, he said, because this claim is not about interference with an election campaign, but interference with an elected governing body’s continuing function, the chair of the park board would be another suitable claimant.
ABC 91原创 split
The park board retained Holzman as part of four of the seven commissioners’ ongoing fight to keep the elected park board in place until the October 2026 civic election. The Martland & Saulnier lawyer has a background in constitutional and criminal law.
Sim announced that he wanted to abolish the board.
His seven city council colleagues with ABC 91原创 later voted to proceed with the move, which led to three ABC park commissioners — Bastyovanszky, Scott Jensen and Laura Christensen — to leave the party.
The trio and the Greens’ Tom Digby continue to push back against the mayor’s plan.
Holzman said his research did not produce an analogous situation where a higher level of government completely abolished an elected governing body in the middle of its term.
The provincial government’s firing of the 91原创 school board in 2016 was mentioned during the meeting, but the rationale for that dismissal was the board’s failure to balance its budget.
David Eby, John Rustad
Holzman described serving in political office and voting in an election as an “activity with expressive content.”
“Abolishing an elected governing body mid-term removes that expressive activity, and the effect is to disenfranchise more than a hundred thousand citizens who voted in the last election for seven park board commissioners, and it disenfranchises the seven commissioners who were elected to serve out a four-year term,” he said.
Premier David Eby has been clear that making amendments to the 91原创 Charter is not his government’s top priority. Eby has said any changes won’t be considered until the next session of the legislature, which would come after the Oct. 19 provincial election.
The premier’s commitment, of course, hinges on the NDP getting re-elected.
Meanwhile, Conservative Party of B.C. leader John Rustad is on record condemning Sim’s move, saying in a statement in December 2023 that “people voted for these park board commissioners. They deserve to have a voice — and a vote — in what happens here. We have a democracy.”
'Broken system'
Sim has described the elected board as a product of a “broken system,” which he said is not working in the best interests of citizens.
The mayor has pointed to a leaky Kitsilano pool, the facade of the Aquatic Centre falling off, a jurisdictional dispute over a water pipe at Spanish Banks and the need for him to seek money from donors to get the Stanley Park train operating for the holidays.
Critics have pointed out that assets managed by the board are owned by the city.
Sim has also claimed the shift in governance will save “millions of dollars,” although he has yet to provide reporters a breakdown of where the savings would come from and whether there would be job loss.
