Watchdog group says early New Brunswick election call was illegal

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.

Democracy Watch co-founder Duff Conacher said 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.

"To pass a bill and say 'This is changing all the rules,' and then say 13 years later, 'No, none of the rules changed,' is completely contradictory and goes totally against what's on the public record," he said.

But a leading expert on Canada's parliamentary system and its unwritten conventions said Conacher is wrong and the legal action will go nowhere.

Philippe Lagassé said Conacher's organization attempted the same thing in 2008 when former prime minister Stephen Harper called a snap election despite his own government's passage of a fixed-date election law.

And they lost.

"The precedents are well set," Lagassé said. "There's already a federal case that the provincial judges can look to. So it's a fruitless exercise." 

Higgs himself agrees.

"The premier is confident that he had the legal authority to call an election," said spokesperson Nicolle Carlin. "As the matter is now before the courts, we have no further comment."

A seeming caveat to New Brunswick's fixed-date requirement is in the law itself. 

The statute says elections must be called every four years but acknowledges that "nothing in this section" takes away from the lieutenant-governor's power and discretion under the Constitution to dissolve the legislature.

Conacher said the lieutenant-governor's discretion is already restricted by unwritten constitutional conventions that she can only do that on the advice of the premier.

And he said the premier, unlike the lieutenant-governor, can be reined in by the law. 

"What we're challenging is the premier's advice to the lieutenant-governor to dissolve the legislature and to call an election and set an election date," he said. "The legislature of New Brunswick prohibited those things back in 2007.

"The lieutenant-governor can only exercise that discretion to dissolve the legislature when advised by the premier and the cabinet, and the premier and cabinet [at the time] said, 'We're putting this measure in to say we're not allowed to advise you to do that except for every four years.'" 

For three elections in a row, premiers followed the fixed elected date and so did the lieutenant-governor, so that creates a convention.- Duff Conacher, Democracy Watch

He said there's another key difference between the New Brunswick situation and what the Federal Court ruled on in 2009.

In the federal case, Harper was calling an early election without ever having followed his own fixed-date law, less than two years after it was passed.

In New Brunswick, three different premiers — Shawn Graham, David Alward and Brian Gallant — have all heeded the law in calling elections four years after the previous ones. 

"For three elections in a row, premiers followed the fixed elected date and so did the lieutenant-governor, so that creates a convention," he said.

But the 2009 Federal Court ruling also said that because conventions are unwritten rules that lack the force of law, the courts have no role in enforcing them. 

Early election for 'stability'

Higgs called this year's election because he said he needed "stability" that his minority government lacked to keep fighting COVID-19 and working on economic recovery.

In August he asked the three other parties in the legislature to sign an agreement committing to keep him in power until the scheduled election date in October 2022, in return for greater input into government policy.

Even though a deal with just the Greens and the People's Alliance would have given him that stability, Higgs called an election after the Liberals balked at the idea of an agreement.

He went on to win a majority government with 27 out of 49 seats.

Conacher said the main argument for having fixed-date election laws is they prevent, or should prevent, an incumbent government from controlling the timing of a campaign to its advantage.

"Snap elections very much favour the ruling party, and they're very unfair to everybody else," he says.

But Lagassé said that because the constitutional powers of a governor-general or lieutenant-governor can't be rewritten, the laws amount to a gimmick.

"Why do they exist? Because it looks good. But it doesn't do much."