Province's legal win on 2020 snap election opens door to future challenges

A court ruling that upheld a snap election call by Premier Blaine Higgs in 2020 could still put limits on the practice in the future.

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.

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.

"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.

"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."

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.