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Globe and Mail, Friday, November 18, 2005

Court rejects bid to undo party merger

by Gloria Galloway
(With a report from Canadian Press)

OTTAWA – A bid by a stalwart of the old Progressive Conservative Party to undo the amalgamation that created the present-day Conservatives has been rejected by the Federal Court of Appeal.

Sinclair Stevens, a 78-year-old former Conservative cabinet minister, argued that electoral law requires Chief Electoral Officer Jean Pierre Kingsley to have waited 30 days after party members approved the joining of the Progressive Conservatives with the former Canadian Alliance to register the new party.

Mr. Kingsley acted just one day after the delegates to a meeting of the Progressive Conservatives voted more than 90 per cent in favour of the merger on Dec. 6, 2003.

The three-judge panel of the appeal court upheld an earlier decision of the Federal Court's Madam Justice Elizabeth Heneghan, who found that Mr. Stevens was essentially correct – that Mr. Kingsley should have waited for 30 days.

But because Mr. Kingsley was under no obligation to hear submissions from affected parties such as Mr. Stevens, and because he could not be an arbiter in internal party disputes, she ruled that the hasty registration had no material effect.

"It is not uncommon that a court, in its discretion, refuses a decision made unlawfully," wrote Mr. Justice Robert Decary in denying Mr. Stevens's appeal.

"Although the absence of prejudice is the reason most often cited, it is not the only one; the extent of the consequences, for example, could be another reason as valid as the lack of consequences."

The waiting period is required because no party may be registered within the 30-day period prior to an election call. In fact, no writ was dropped for several months after the amalgamation but the law says Mr. Kingsley should have delayed the registration to ensure that was the case.

Judge Heneghan had also said the new Conservative Party should pay the costs of the original case because Mr. Stevens had raised a valid question – a finding the party unsuccessfully tried to have struck down. But Judge Decary ordered Mr. Stevens to pay the full costs of the appeal so the two cost awards may balance each other out.

"He chose not to be satisfied with the judgment rendered against him and all grounds of appeal are dismissed," the judge wrote in his decision. "He must therefore assume the risks of an unsuccessful appeal."

Peter Rosenthal, a lawyer for Mr. Stevens, said he is urging his client to appeal the case to the Supreme Court of Canada.

"Nothing in the decision convinces me that our arguments were wrong," Mr. Rosenthal said.

"In my view it is very important for democracy that the law be carefully adhered to when a political party is extinguished by the Chief Electoral Officer. I therefore do not agree that it is within the discretion of the courts to withhold relief in the circumstances."

Mr. Stevens said he would consider another appeal.

"Basically, my bottom line is I feel it is wrong in our democracy to not give people who want to vote Progressive Conservative an opportunity to do that during an election," he said.

"For a system to allow the oldest party in Canada to be extinguished where over the years it had that number of people voting for it, I just think is inherently wrong."

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