Suit against Emerson Explored

[Editor's note: This is a revised version of a story published earlier today on The Tyee. Changes have been made to reflect that lawyer Peter Dimitrov claims not to be actively "organizing" a class-action lawsuit against David Emerson. And that, as yet, no voters have volunteered to be plaintiffs in any suit against Emerson.]

A Vancouver lawyer is inviting plaintiffs to approach him if they want to pursue a lawsuit against incumbent federal MP David Emerson.

Peter Dimitrov, a human rights and trial lawyer, says the decision by Emerson, a former Liberal cabinet minister, to cross the floor and join the Conservative cabinet just after January's federal election, violates the rights of citizens.

In writings he has posted on another Internet site and shared via email with this reporter, Dimitrov has said "With respect to the matters in Vancouver-Kingsway, it is a fact that 82 percent of the constituents did not vote for the Conservative party. It is also a fact that the ballot upon which voters cast their votes stipulated both David Emerson's name and his Liberal Party affiliation.

"Emerson campaigned as a Liberal, put up lawn signs announcing his Liberal Party affiliation, attacked his Conservative party opponent in the riding, and based on his personal qualifications and Liberal party affiliation, the citizens of Vancouver-Kingsway elected him. Then, a few days later, well before parliament is called in session - David Emerson 'crossed' over to become a Conservative party cabinet minister," Dimitrov said.

Sees Constitutional issue

Dimitrov said the matter points to a long-standing conflict between the rights of elected politicians to change party affiliation and those of citizens to hold them accountable. "This matter of citizen and parliamentarian rights ought to be adjudicated in the courts - that is where it belongs," he said.

"In the United Kingdom, where parliament is supreme, "tradition' gives parliamentarians the right, indeed the privilege, to switch sides as they please without any restrictions whatsoever. Parliamentarians in Canada seem to think that they can do exactly the same," he says. "The reality is, however, that in Canada, since the 1982 patriation of the constitution with a new Charter of Rights and Freedoms - 'parliament is not supreme'. The constitution is the supreme law of the land, and any common or statutory law, tradition, privilege, entitlement, or judicial ruling inconsistent with the Canadian Constitution can be overturned by a court of competent jurisdiction."

"Personally, I am willing, with others, to advance this matter in the courts," said Dimitrov in comments posted at the Vive le Canada website and forwarded about the same time via email to this reporter. "What I require are electorate from Vancouver-Kingsway willing to step forward as plaintiffs. What is required is a team of very able persons who will carry out specific job responsibilities with high integrity and competency, with no expectation of 'reward' for themselves. What are also required, are monies to do the job properly."

In the Vive le Canada posting, Dimitrov goes on to say "I can be contacted via this site by email. My law office number is 604-684-4446. Who else will stand with me?"

Recall petitions

Emerson, first elected in the 2004 election, was the Minister of Industry in the former Liberal minority government of Prime Minister Paul Martin. He campaigned feverishly for the Liberals in the last federal campaign and spent a great amount of his public appearances strongly criticizing the Conservatives on almost all of their policies.

Less than two weeks after the election on January 23, he announced he was leaving the Liberals, now in opposition, to join the new Conservative minority government as the new Minister of International Trade.

The move has released an explosion of protest and rebellion among Vancouver-Kingsway constituents from across the political spectrum demanding Emerson resign his seat. Several recall petitions are being circulated, and both NDP candidate Ian Waddell, who narrowly lost to Emerson and party leader Jack Layton have appealed to Emerson to stand for a by-election to run as a Conservative-a call shared by several Conservative MPs across the country.

"It's getting ridiculous," said Waddell, adding that the riding has never elected a Conservative representative, and it would be very unlikely that Emerson would have won on the Conservative ticket. "Politics in this country is sadly lacking in integrity. Somehow, we have got to bring better accountability into the system. People have to start being what they say they are."

The NDP federal caucus is planning to submit a bill proposal that, if passed, would severely limit the ability of elected MPs to change party affiliation. Numerous MPs from all parties have endorsed the idea.

But despite four major public rallies and a recent poll estimating that almost 90 percent of Vancouver-Kingsway residents want him to step down, Emerson has refused to quit, claiming he was asked by several Conservative MPs, including former Powell River rep John Reynolds to join their party.

"I felt I could better serve my riding as a member of a governing caucus than in opposition," Emerson told reporters after he joined the Conservatives. "The riding would be better represented by a cabinet minister than just another MP."

Prime Minister Steven Harper welcomed Emerson's move and has dismissed the protests and the poll.

"I have welcomed David Emerson to our caucus and I think he will be a great asset to my team," Harper said in a press conference. "He has proven that he is a competent and intelligent man. We should just move on."

Citizens' rights 'nullified'

Dimitrov, who ran for the leadership of the BC NDP in 2003, notes there is no federal recall legislation. BC is currently the only electoral jurisdiction that has such legislation, which was unsuccessfully introduced by the previous NDP government in 1995.

He says this is why legal action is necessary, since a charter interpretation will likely settle the matter.

"Based on my understanding of section three of the charter, and the publicly available evidence respecting the context and timing of the 'crossing,'" he says, "it is my opinion that the post-election actions of David Emerson, and perhaps the prime minister as well, nullified the rights of the citizens of Vancouver-Kingsway to play a meaningful role in the election of their elected representative, and it further denied them the right to "effective representation" by the party of their choice (Liberal) and their party-affiliated representative."

Vancouver journalist Marco Procaccini is an occasional contributor to The Tyee and writes for The Columbia Journal.