This article first appeared in The Penticton Herald
By Joe Fries
Just four years into his career, a Penticton lawyer took on a pro bono case that paved the way for absentee voting in B.C. – and unwittingly set the stage for a dramatic finish to the 2017 provincial election.
“Maybe I’m to blame for the fact we haven’t worked out who’s going to be our government yet,” Michael Welsh joked in an interview this week.
“But, seriously, I think it just shows the importance of lawyers taking on this type of pro bono litigation where people’s rights are being infringed or where people need assistance.”
An estimated 176,000 absentee ballots were cast in the May 9 provincial election, the result of which is still too close to call with the Liberals just one seat shy of a majority and only two seats up on the NDP.
In one riding on Vancouver Island, the parties are separated by only nine votes, with absentee ballots expected to decide the outcome when results are announced next week.
Back in 1983, however, absentee voting wasn’t permitted in provincial elections. That didn’t sit right with Michael Hoogbruin and David Raffa, two B.C. residents who were studying law in Ontario and therefore unable to vote that year, so they decided to put their newly acquired skills to work.
“We were first-year law students and we were on fire by the Charter of Rights and Freedoms, and saw that there was potential here for disenfranchisement because of the lack of absentee voting,” Hoogbruin recalled this week in a phone interview from his office in Vancouver, where he practises personal-injury law.
He and Raffa, who also practised law in Vancouver before moving into the world of corporate finance, did some research and discovered absentee voting was permitted in seven of 10 provinces, all U.S. states and in the UK.
So, in 1984, they asked a B.C. Supreme Court judge to allow it here.
“We presented the argument ourselves in Supreme Court and I was nervous as heck – I did throw up in the bathroom – and we lost,” said Hoogbruin, who grew up in Kelowna.
“Then I contacted the BC Civil Liberties Association and asked for their assistance.”
Welsh, who was practising in the Vancouver area at the time, had done some pro bono work for the BCCLA and agreed to take the case.
With extra help in their corner, the students drew up a new plan of attack that refined their assertion that a lack of absentee voting violated their Charter right to vote.
Welsh then presented their arguments to the B.C. Court Appeal, where he “ably argued and obviously succeeded where we failed in the court below,” said Hoogbruin.
“He did this on principle, didn’t get paid for it, and did a remarkable job.”
As a result of the court’s decision, the B.C. government amended the Election Act to permit absentee voting by the time citizens went back to the polls in 1986.
Never before, however, have those absentee ballots mattered as much as they do now.
“It just really shows, I suppose, that sometimes actions you take have consequences you could never foresee at the time,” said Welsh, who moved his practice to the Okanagan in 1997 and is currently serving as president of the B.C. branch of the Canadian Bar Association.
“It (also) underscores the importance of lawyers taking on these types of cases and the importance of the public understanding what lawyers do when they take on these types of cases without any charge.”