TORONTO — A federal New Democrat has lost his bid to force his way into the race to replace Tom Mulcair as party leader, but the wider ramifications might be the judge's ruling that the inner workings of Canada's political parties are not immune to court scrutiny.
In his decision, Divisional Court Justice Ian Nordheimer ruled the party acted reasonably in rejecting a leadership bid from Brian Graff — in part over a 25-year-old criminal charge.
However, Nordheimer flatly rejected the New Democrats' argument that the courts had no business taking the "extraordinary and unprecedented" step of meddling in "purely partisan political activity."
Courts shouldn't referee party disputes: judge
A registered party, he said, is not just another private, voluntary club making its own membership arrangements.
"The decisions that political parties, especially the major political parties, make in terms of the candidates they put forward, the policies they adopt, and the leader that they choose, do have a very serious effect on the rights and interests of the entire voting public," Nordheimer said. "The voting public, therefore, has a very direct and significant interest in ensuring that the activities of political parties are carried out in a proper, open and transparent manner."
While parties are neither a public decision-maker nor government agent, Nordheimer said the court's jurisdiction flowed from the key democratic roles they play. What they do impacts the public directly, he said, and their leaders can end up as prime ministers. In addition, big parties receive millions of dollars in taxpayer-funded reimbursements for election expenses.
Party decisions can be 'subject to review' by courts: Nordheimer
At the same time, the judge said, courts must be "very cautious" when it comes to reviewing decisions of voluntary associations and should not try to referee every membership dispute. Key to judicial reviewability, he said, is the larger public aspect of the decisions such associations take.
"While I have concluded that decisions like this, that are made by political parties, are subject to review by the courts, that review does not mean that the courts should readily second-guess those decisions or micro-manage them," Nordheimer wrote. "Within the broad compass of fairness, political parties ought to be entitled to make their own decisions."
Graff, 58, who ran unsuccessfully for a Toronto council seat in 2014, was a Liberal activist for most of his adult life. However, the self-described policy wonk said he became disillusioned with the Liberals after Justin Trudeau came to office in 2015, and joined the New Democrats last August.
"It sends an important message to all political parties that if they do not conduct themselves fairly and reasonably, their members may hold them accountable in court."
Among the reasons for rejecting his leadership bid, NDP national director Robert Fox cited a conditional discharge Graff received in 1993 for a non-violent criminal offence involving a woman. The charge — watching and besetting — falls under the intimidation section of the Criminal Code.
Nordheimer said Fox had a legitimate role and broad discretion under the party's leadership rules to screen out would-be candidates whose mere participation in the contest could damage the party. Graff, he said, had failed to prove Fox or the party had acted inappropriately.
Ruling unprecedented, lawyer says
In response to the ruling, Graff insisted the real reason the NDP had rejected him in a process he called "unfair and Kafka-esque" was that it didn't like his ideas on immigration and electoral reform.
"I pursued this case at great financial and personal expense to try to ensure that parties respect the rights of their members and are not micromanaged top-down by party elites or infringe on the rights of members to run for the most important positions in the party," Graff said on Monday.
One of Graff's lawyers called the ruling unprecedented.
"It sends an important message to all political parties that if they do not conduct themselves fairly and reasonably, their members may hold them accountable in court," Nader Hasan said in a statement. "In a political system that relies so heavily on political parties, that's good news for democracy."
In a statement, the NDP said it was pleased the court found its rejection of Graff was reasonable, free of bias, and followed the rules.
CLARIFICATION: The Canadian Press distributed a story on Monday based on court documents that mentioned NDP national director Robert Fox citing a conditional discharge Brian Graff received in 1993 for what Fox called a non-violent criminal "stalking" offence involving a woman. Graff has clarified that he was charged with watching and besetting under the intimidation section of the Criminal Code, not criminal harassment.
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