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Court of Appeal rules it’s illegal for Premier to call a snap election if it only favours ruling party’s re-election chances

Appeal court rejects almost every part of lower court’s ruling, finds “most of Democracy Watch’s grounds of appeal are well-founded”

Case was not aimed at overturning election results – just sought ruling that future snap election calls will be illegal

Friday, December 9, 2022

OTTAWA – Democracy Watch announced that the Court of Appeal of New Brunswick released a precedent-setting unanimous ruling yesterday that prohibits the Premier from calling a snap election in-between the every-four-year fixed election dates for “purely partisan electoral advantage.” The ruling came in the lawsuit Democracy Watch filed challenging Premier Blaine Higgs’ advice in August 2020 to the Lieutenant Governor to call a provincial snap election. Jamie Simpson provided legal counsel to Democracy Watch for the court case.

The Court of Appeal agreed with Court of Queen’s Bench Justice E. Thomas Christie’s ruling (which the appeal court forced Justice Christie to make) that Democracy Watch had standing as a public interest advocacy group to pursue the case in New Brunswick (paras. 42-48). However, the appeal court rejected every other part of Justice Christie’s decision, and ruled that he had made several errors, as follows:

  1. The Court of Appeal ruled that the courts can rule on whether the Premier’s advice to the Lieutenant Governor is legal (paras. 49-56 and 77) – Justice Christie had ruled that the courts can’t rule on such a case.
  2. As mentioned above, the Court of Appeal ruled that the fixed date election law prohibits the Premier from calling a snap election only to favour the ruling party’s re-election chances (paras. 57-66 and 78-79) – Justice Christie had ruled that the Premier could call an election anytime.
  3. The Court of Appeal ruled that if the evidence clearly shows the Premier called a snap election purely to advantage the ruling party (which it didn’t either way in this case), the courts can rule that the election call was illegal (para. 71) – Justice Christie had ruled the courts couldn’t rule on such a situation.
  4. The Court of Appeal ruled that Justice Christie’s ruling was “erroneous and unreasonable” – especially when he called Democracy Watch’s case frivolous – and that “most of Democracy Watch’s grounds of appeal are well-founded.” (para. 75).
  5. As a result, the Court of Appeal rejected Justice Christie’s order that Democracy Watch pay the legal costs of the New Brunswick government (para. 75).

Justice Christie’s ruling against Democracy Watch in October 2021 also made a false claim about what DWatch’s lawyer argued in the case and made a false claim about what the Federal Court ruled in DWatch’s case vs. Prime Minister Harper’s 2008 snap election call.

“The court of appeal has set a strong precedent by ruling that it is illegal for the Premier to call a snap election in between the fixed election dates only to favour the ruling party’s election chances, and by ruling that a Premier’s election call can be challenged in court, and that it was in the public interest for the courts to rule on our case,” said Duff Conacher, Co-founder of Democracy Watch. “Democracy Watch believes there was enough evidence for the court of appeal to rule that Premier Higgs violated New Brunswick’s fixed elected date law by calling the 2020 snap election at a time that favoured his party’s election chances, but the court concluded there was not enough evidence to prove that he did, or didn’t, call the election to favour the PC Party.”

The case was not aimed at overturning the 2020 election results. Instead, Democracy Watch argued the court should declare that Premier Higgs’ action:

  1. violated the fixed election date measure in the Legislative Assembly Act (ss. 3(4));
  2. violated the constitutional principles of the sovereignty of parliament and responsible government (for this reason, the UK Supreme Court ruled unanimously in 2019 that Prime Minister Boris Johnson’s prorogation of the British Parliament was illegal), and;
  3. violated the constitutional convention that has been created by premiers calling elections only on the fixed date in 2010, 2014 and 2018.

New Brunswick’s legislature enacted its fixed election date measures with Bill 75 in 2007. Then-House Leader Stuart Jamieson said at the time that: “It was thought by both parties in the legislature and by other provinces that it would be better to remove the political nuances and give everybody a fair and even playing field.” Bill 62 in 2017 changed the fixed date from September to October. The fixed date for the next election was set for the third Monday in October 2022.

Calling a snap election in violation of the law is bad – calling a snap election during a pandemic was even worse. Premier Higgs also used the completely invalid excuse that the three opposition parties refused to agree support the government in every vote until October 2022, or at least until after the pandemic. In a parliamentary system of democratic government, opposition parties are not required to agree to support the government. In the 2020 election, Premier Higgs’ Progressive Conservative Party won 55% of the seats in the legislature with the support of only 39% of voters.

Snap elections are unfair not only to opposition parties (as they are usually called when having an election favours the ruling party), but also to people who want to run as a candidate but can’t afford to suddenly drop everything and run. That’s why the federal Parliament, and every province and territory, have enacted fixed election date measures.

Because they are illegal, dishonest and unfair, Democracy Watch and Wayne Crookes also went to court to challenge the snap election calls by B.C. NDP Premier John Horgan in September 2020 and by Liberal Prime Minister Trudeau in August 2021, both of which violated fixed election date laws. Both those cases are currently being considered by appeal courts.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

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