Higgs's early election call was legal, appeal court rules

A self-styled democracy watchdog has lost its legal challenge to Premier Blaine Higgs's snap election call in 2020.

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.

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.