Province's legal win on 2020 snap election opens door to future challenges
Top court says early election for ‘purely partisan’ reasons would violate fixed-date law
The New Brunswick Court of Appeal rejected a bid by the advocacy group Democracy Watch to declare the early call illegal under the province's fixed-date election law.
But the court's Dec. 8 decision says in certain circumstances, that law could still prevent a similar move by a premier in the future.
The law "prohibits … dissolution and election advice driven by purely partisan electoral advantage," said the ruling by Justice Ernest Drapeau.
"This seems like a pretty big win for Democracy Watch," says University of New Brunswick law professor Kerri Froc.
University
of New Brunswick law professor Kerri Froc says with this ruling at odds
with the British Columbia and federal rulings, 'there’s a real issue
there fomenting that the Supreme Court might have to pronounce on.' (Submitted by Kerri Froc)
Higgs called the election in August 2020, two years after the last vote. The premier led a minority government at the time and was ahead in the polls.
The Legislative Assembly Act sets a four-year schedule for elections and under the law's formula, the next campaign would have been held in October of 2022.
But another section of the act says "nothing in this section affects" the lieutenant-governor's discretion to dissolve the legislature — something they do when asked by the premier.
Drapeau's decision says the two sections "operate in tandem to foreclose dissolution and election advice purely for partisan electoral advantage."
Duff Conacher of Democracy Watch says despite losing the challenge to the 2020 call, he's succeeded in giving the fixed-date law some teeth.
Premier
Blaine Higgs called the election in August 2020, two years after the
last vote. The premier led a minority government at the time and was
ahead in the polls. (Stephen MacGillivray/The Canadian Press)
"That was the intent of the fixed-date election laws, to prohibit snap election calls that are unfair in that they are just aimed at rigging the election in favour of the ruling party," says Conacher.
"If you could prove that, the courts would rule that the election call was illegal. So that is an avenue. No other court has done that in our other cases."
Conacher has challenged similar snap election calls federally and in British Columbia. He lost both times with courts ruling those fixed-date laws could not limit the discretionary power.
Last week's New Brunswick ruling was more nuanced.
The court of appeal said it found no evidence to support Democracy Watch's argument that Higgs sought an election for "purely partisan" reasons.
The ruling also said there was no evidence he didn't, but with no proof either way, the election call could not be deemed illegal.
Still, the ruling's reference to the law "foreclosing" an early election for those reasons, Conacher says, is "a message to any future premier that you better not look like you're calling a snap election just because it's a good time for your party to win re-election.
"You'll likely be in court, and the courts may say you just did something illegal," he said.
Political scientist Emmett Macfarlane, who studies the relationship between governments and courts, says the Court of Appeal has made a mistake.
Political
scientist Emmett Macfarlane says if MLAs had wanted clear limits on the
lieutenant-governor’s power to dissolve the legislature they would have
written that into the fixed-date law in 2007. (University of Waterloo)
"Partisan considerations are always part of such requests [for elections], and it is impossible to disentangle those considerations from the broader circumstances of these requests."
Macfarlane says if MLAs had wanted clear limits on the lieutenant-governor's power to dissolve the legislature — such as a premier's partisan motives — they would have written that into the fixed-date law in 2007.
"The Court of Appeal opens a can of worms. How would such a determination possibly be made, given governments will likely articulate other reasons for calling snap elections?" he said.
"And why should it be courts, and not the governors general or lieutenant-governors, who get to decide about the validity of such requests?"
Constitutional lawyer Lyle Skinner said the courts are not "well-equipped" to rule on a premier's motivations.
"It is awkward to ask the courts to block an election," he said.
Conacher says Drapeau's ruling could itself deter future premiers just by raising the possibility of a court challenge.
"It's going to throw that question up in the air, which hopefully in and of itself will be enough to stop these ridiculously unfair snap elections," he said.
Froc says with this ruling at odds with the British Columbia and federal rulings, "there's a real issue there fomenting that the Supreme Court might have to pronounce on."
Constitutional lawyer Lyle Skinner said the courts are not well-equipped to rule on a premier’s motivations. (Submitted by Lyle Skinner)
But New Brunswick would be taking a risk appealing a victory to the court simply to try to overturn Drapeau's logic, she says.
"If I were the province I would take the win and just sit on it and see if there is any other move by Democracy Watch to bring an action in a future case."
Skinner says amending the fixed-date law to remove the reference to the premier is another option. That would make it impossible for the courts to examine a premier's motives and leave the lieutenant-governor's discretion intact.
A spokesperson for the attorney general's office declined to comment on the province's legal options.
"We are still reviewing the decision and have nothing further to add at this time," said Geoffrey Downey.
Higgs said Tuesday he also had no comment.
ABOUT THE AUTHOR
Higgs's early election call was legal, appeal court rules
Justices reject Democracy Watch’s argument that premier violated fixed-date election law
Democracy Watch had argued that the premier's decision to go to the polls early was illegal because of a fixed-date election law.
The New Brunswick Court of Appeal says Higgs was within his legal rights to trigger the election two years early.
Key sections of the law "bind" the premier to ask for a dissolution of the legislature according to the legislation's schedule, "while preserving his or her right to derogate from that obligation in certain circumstances," Justice Ernest Drapeau wrote in a 38-page decision.
Higgs had led a minority government for two years when he called the election in August 2020 in the midst of the first year of the COVID-19 pandemic.
His Progressive Conservatives went on to win a majority government.
The court of appeal decision rejecting the Democracy Watch case upholds a Court of King's Bench ruling by Justice Thomas Christie, but Drapeau says he came to the same conclusion for different reasons.
Duff
Conacher is co-founder of Democracy Watch. The watchdog group argued
that the premier's decision to go to the polls early was illegal because
of a fixed-date election law. (CBC)
The Legislative Assembly Act says a premier must advise the lieutenant-governor to authorize an election on a fixed four-year schedule.
But another section says that nothing in the law takes away the lieutenant-governor's discretion to act on a premier's request for an early vote.
In his 2021 ruling, Christie said Democracy Watch's concerns that Higgs had called the election for partisan reasons was not enough to affect that discretion.
"In a political system dominated by party politics, elections called for partisan reasons could hardly be a basis for overturning one," he wrote. "At the end of the day, the voters are better placed to decide the wisdom of such action."
Drapeau, writing for a panel of three justices that heard the case, disagrees.
He says the law does indeed put limits on Higgs's ability to call an election whenever he wants, prohibiting it when "driven by purely partisan electoral advantage."
But he continues there was "no admissible evidence the Premier initiated the process leading to the unscheduled election of September 14, 2020, for purely partisan electoral advantage."
Under the schedule in the legislation, the next New Brunswick election is scheduled for Oct. 21, 2024.
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Early New Brunswick election call was legal, court tells activist
Democracy Watch challenge to Higgs's call for an election in August 2020 borders on frivolous, judge says
Activist Duff Conacher of Democracy Watch had asked the Court of Queen's Bench to rule that Higgs violated the province's fixed-date election requirements when he triggered the election.
But Justice Thomas Christie says in his ruling that the legislation explicitly does not take away the power of the lieutenant-governor to dissolve the legislature when a premier asks her or him to do so.
"Her discretion to dissolve the Legislative Assembly remains intact," Christie writes, adding the Democracy Watch challenge "borders on being considered frivolous."
He also writes that Conacher's concern that Higgs called the election to take advantage of political circumstances wasn't enough to warrant the lawsuit.
"In a political system dominated by party politics, elections called for partisan reasons could hardly be a basis for overturning one," Christie wrote. "At the end of the day, the voters are better placed to decide the wisdom of such action."
What existing legislation allows
The amendments to the Legislative Assembly Act, passed in 2007, set a date for the next scheduled provincial election based on when the previous one was held.
Under the law's formulation, an election was due Oct. 17, 2022. Higgs visited Lt.-Gov. Brenda Murphy on Aug. 17, 2020, more than two years early.
The Progressive Conservative government was riding high in the polls at the time, in part because of the province's low COVID-19 case numbers. Higgs didn't have a majority in the legislature, but he secured one when New Brunswickers voted on Sept. 14, 2020.
The law itself says "nothing in this section" takes away from the lieutenant-governor's power and discretion under the Constitution to dissolve the legislature.
Precedence in court
In their arguments on Conacher's case, government lawyers quoted from a Liberal cabinet minister making the same point during debate on the bill in 2007.
Christie's decision also points out that Conacher lost when he filed a similar lawsuit over Prime Minister Stephen Harper's calling of an early election in 2008. A challenge of an early Alberta election was also rejected by courts there.
Democracy
Watch founder Duff Conacher asked the Court of Queen’s Bench to rule
that Higgs violated the province’s fixed-date election requirements when
he triggered the election, similar to his 2008 lawsuit over Prime
Minister Stephen Harper’s calling of an early election in 2008. (Adrian Wyld/CP)
The judge says he asked Conacher's lawyer to show how the New Brunswick case was different from the others, and the lawyer admitted there was no major difference.
"The advice of a Premier or Prime Minister to the Lieutenant Governor or Governor General, regarding the calling of an election, is an executive prerogative beyond the proper role of the courts to displace," Christie wrote.
He also rapped Conacher for an affidavit that he says was based largely on the activist's "personal opinions and conjecture" rather than facts.
"The interests he raises in the name of the 'public's interest' are, in reality, his personal interests or concerns," Christie wrote.
With Higgs's early election last year, the next vote is now scheduled for Oct. 21, 2024.
Deja Vu Anyone???
Friday, 27 November 2020
Watchdog group says early New Brunswick election call was illegal
Watchdog group says early New Brunswick election call was illegal
Democracy Watch says Blaine Higgs should not have been able to dissolve legislature, call election
Democracy Watch founder Duff Conacher says changes to the Legislative Assembly Act in 2007 took away the power of premiers to ask the lieutenant-governor to dissolve the legislature whenever they want to. (Adrian Wyld/CP)
An Ottawa-based watchdog group is asking a judge to rule that Premier Blaine Higgs's provincial election call in August was illegal because it violated fixed-date legislation.
Democracy Watch isn't looking to overturn the results of the Sept. 14 election but is asking the Court of Queen's Bench to declare that it was against the law.
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