“The Party’s Constitution is not legal”
Because that statement is true until it’s not, that statement is not useful unless it’s fully and accurately explained.
What is true is that Political Parties in Canada, such as the Green Party of Canada, are unincorporated associations. That means they do not have the privileges that a corporation has, such as the right of a person to sue another or be sued. So for example, you typically can’t ask a court to enforce a Constitutional article or bylaw of an unincorporated association. And if you want to sue the unincorporated association you have to pick one or more persons in the association otherwise your case may be dismissed. I stress the word “typically” as there are exceptions which I mention below.
What is also true is that the Party is a special type of unincorporated association called a “Registered Party” through its successful registration under the Elections Canada Act. In Canadian law, where a corporation has many of the privileges and responsibilities of a parson, there is one section of that Act, section 504(a), which states that in the case of judicial proceedings or a compliance agreement involving a Registered Party, “the party or association is deemed to be a person”. So in some situations the Party is considered a person where the Party’s Constitution and Bylaws would have legal standing. And further, in the situation of a Registered Party’s deregistration, Act section 521.1(5)(a) specifically states “a court shall consider” the Party’s “constitution, articles of incorporation, letters patent or by-laws or any other information that may indicate those purposes”.
There have also been court cases where the judge, in their reasons for a ruling, have cited passages of a Registered Party’s constitution or bylaws as one of the reasons for their ruling. That effectively gave that Party’s constitution and bylaws legal standing. This happened recently where a Conservative Party of Canada leadership contestant challenged a decision of that Party in court. In that case the court may also have allowed the contestant to bring the legal action against the Party itself. If so, that breaks a long standing legal tradition of not being able to sue a Registered Party because it’s an unincorporated association.
So how then is a Constitutional article or bylaw otherwise enforced?
Because legal remedies are few, and an unincorporated association is essentially a trust based organization, in order for it to enforce its own constitution or bylaws (if it has something like that), it needs to establish its own enforcement systems and procedures. A condition for a person to be in, or a part of, the organization (typically called a member), is that they agree to follow the organization’s systems and procedures. If they don’t, they are sanctioned or excluded from the organization.
In the Green Party of Canada, we have:
A Constitution where in article 2.1 it’s establishes that “This Constitution and Bylaws shall govern the activities of the Party, all persons operating on behalf of the Party, and the rights, responsibilities and duties of its recognized Units, committees and membership.” That is, all persons and Units of the party are governed by the systems and procedures in the Party’s Constitution and Bylaws. And if that person or Unit is a part of the Party, they agree to that. Persons are defined in article 7.1 and Units are defined and listed in article 7.2 and, where declared as a Unit of the Party, article 7.3.
Constitution article 6.1 which states “All Units and individuals within the Party are accountable to: (6.1.1) the membership in General Meeting, (6.1.2) the Federal Council when the membership is not in General Meeting.” That establishes that the members in general meeting are the Party’s supreme decision-making body followed by the Federal Council when the members are not in a general meeting. Clear accountability.
An Ombuds and Appeals Committee which can, independently and at arm’s length of the Federal Council and other Units of the Party, interpret Party rules, procedures, and decisions where there is disagreement. It’s hoped that trusted Party members, who understand Canadian law and know how the Party is structured, are elected to this body. Like a supreme court, you would want your most experienced, knowledgeable, and respected people holding a position in that body.
Any Party functionary can be suspended for a period or removed from their position, with the procedures for such codified in the Party’s bylaws or other Party rules. A Functionary is defined at article 7.3.7 of the Party’s constitution and is “A person duly selected to hold office or perform a function on behalf of the Party.”
Any Party member can be suspended for a period or have their membership removed, again with the procedures for such codified in the Party’s bylaws or other Party rules. A person who does not have membership is not a part of the Party.
At one time after Federal Council elections, one of the first priorities of Federal Council after orientation and getting to know each other, was to (by secret ballot) elect, from among Federal Councillors, one, two, or three “commissioners” whose role is to diplomatically enforce the Party’s Code of Conduct that applies to Federal Councillors and other functionaries. It was hoped that councillors nominated for that role were known for their fairness, level headedness, governance knowledge, and de-escalation skills.
Documentation that shows how and at what level to resolve disputes. For example, https://docs.google.com/drawings/d/1FQZijo8QwSNNXZd70PhiICLy-ytdkfenTOrKmXJRDSQ
The Party being a trust based organization is not as far fetched as you might think. Countries themselves are trust based organizations. That’s one of the reasons why elected officials are sworn in and take an oath of office once elected, for example.
From a legal standpoint, a Registered Party has more in common with that of a country than it does with a corporation. Organizationally, that’s both a blessing and a curse. The blessing – or the wisdom of that – is that it educates and trains people in the Party for when they actively participate in government or form the government if that ever comes to pass. Governing a country is governing a complex trust based organization – not a corporation.
Steve Kisby
Vancouver, BC