The Courts Uphold the Correct Interpretation of Fixed-Date Election Laws for the Fifth Time Since 2009


Image unrelated to Duff Conacher and to the text below

Introduction

Blaine Higgs became Premier of New Brunswick on 9 November 2018 because Brian Gallant’s Liberal ministry lost the vote on the Address-in-Reply to the Speech from the Throne in the minority legislature that voters had returned on 24 September 2018.[1] Most premiers seem not to appreciate gaining the governor’s commission through events so inauspicious and messy as mid-parliamentary transfers of power after votes of non-confidence and resignations; Higgs proved no different and sought his own “mandate” by advising Lieutenant Governor Brenda Murphy to dissolve the 59th Legislature on 17 August 2020, for an election on 14 September – two years before it reached its maximum life.[2] (Naturally, Higgs had only a few weeks earlier claimed that he had no interest in calling a snap election.)[3] Higgs thus obtained the 9th early dissolution notwithstanding a fixed-date election law in Canada.

As of December 2021, 12 such snap elections have taken place since 2008. Even though Canada’s fixed-date election laws only lower the maximum life of a legislature or parliament from five years to something between four and just under five years and do not guarantee a minimum lifespan, Duff Conacher – for the third time since 2009 – launched frivolous litigation contesting the legal-constitutional validity of a dissolution of parliament and, by necessary implication, the legitimacy of the general election which followed. The Court of Queen’s Bench of New Brunswick issued a ruling on 29 October 2021 that this province’s fixed-date elections law does not prevent the Premier from advising the Lieutenant Governor from dissolving the legislature earlier that the scheduled date, though Democracy Watch v New Brunswick (the Attorney General) did not become publicly available until 9 December 2021.[4] In this ruling, the Court of Queen’s Bench of New Brunswick affirmed four previous rulings on this very same question – the two Conacher rulings by the Federal Court in 2009 and Federal Court of Appeal in 2010, as well as the two Engels rulings of Alberta’s Court of Queen’s Bench in 2019 and Court of Appeal in 2020[5] – and acknowledged that dissolving legislatures is fundamentally a “political decision and therefore, as noted in Conacher, not justiciable.”[6] The Supreme Court of Canada also considered this jurisprudence definitive and refused to waste its time re-adjudicating the Engle rulings in May 2021.[7]

The Case Itself: Shooting Down a Dissolution-Chasing Lawyer

Justice E. Thomas Christie also delivered a withering salvo against Duff Conacher, the dissolution-chasing lawyer and recidivist litigant, based on the affidavit which he submitted as a deponent; Conacher did not serve as the applicant in these legal proceedings. Conacher also previously challenged the legality of Prime Minister Harper’s early dissolution of August 2008 in two cases which bear his name before the Federal Court of Canada in 2009[8], which rejected his reasoning and ruled against him, and the Federal Court of Appeal in 2010,[9] which sustained the lower court’s decision. Justice Christie needed only 22 paragraphs to admonish and demolish Conacher and his incoherent arguments systematically through a handful of incisive observations, shredding any credibility he might still have possessed beforehand.

Democracy Watch, the applicant, sought declaratory relief that Premier Higgs violated section 3(4) of Legislative Assembly Act (New Brunswick’s fixed-date election law) by advising Lieutenant Governor Brenda Murphy to dissolve the 59th Legislature, that Her Honour, in turn, “improperly exercised her discretion” under sections 3(2) and 3(3) of the same statute by accepting the Premier’s constitutional advice, and, finally, that the Lieutenant Governor-in-Council also “improperly exercised the authority” under section 13(1) of the Legislative Assembly Act by issuing the writs of election through an Order-in-Council on 17 August 2020, for a general election on 14 September 2020.[10] Democracy Watch claimed that it did “not seek to alter the outcome of the election”[11] – yet it would, in fact, have to regard this general election as illegitimate or invalid by necessary implication, since it believes that the constitutional advice and executive instruments which made it happen were unlawful.

Already by the sixth paragraph Justice Christie’s exasperation becomes apparent and serves as a foretaste for the admonition yet to come:

“[6] Put simply, as will be seen below, the issues raised by the Applicant have already been adjudicated in other jurisdictions – jurisdictions with substantially similar, if not identical, legislation. The outcomes have been consistently against granting relief of the type sought here. […]

[7] Furthermore, the deponent in the supporting affidavit in the present Application is Duff Conacher, Coordinator of Democracy Watch. Mr. Conacher is the named party in Conacher v. Canada (Prime Minister), 2009 FC 920 and Conacher v. Canada (Prime Minister), 2010 FCA 131. In both cases, identical issues as those before me were raised and found to be without merit.”[12]

Christie continued:

“[8] Frankly, realizing the unbroken path of jurisprudence (recognizing that the number of cases is not high), I asked counsel for the Applicant during the hearing to identify anything substantially different in the New Brunswick legislation or facts that might differentiate this Application from others decided elsewhere. To Mr. Simpson’s credit, he could identify none. In these reasons, I do not intend to ‘re-invent the wheel’. In summary, the authorities cited herein declare that 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. The same is to be said of the sole discretion that resides with the Lieutenant Governor or Governor General on whether to accept that advice.”[13]

At this point, I have to resist the gleeful but redundant urge to copy-paste the ruling in its entirety.

Christie refuted all three of Democracy Watch’s erroneous contentions outlined in paragraph 1 of the ruling. First, section 3(4) of the Legislative Assembly Act does not prevent the Premier from advising the Lieutenant Governor to dissolve the legislature at any time. Second, section 3(3) expressly states that the Lieutenant Governor retains the “discretion” to “prorogue or dissolve the Legislative Assembly”, which therefore refutes Democracy Watch’s contention that the Lieutenant Governor “improperly exercised her discretion” under that section, as well as under section 3(2), which simply acknowledges the fact that legislatures can either dissolve by efflux of time or by the will of the Crown; it declares that “The present and every future Legislative Assembly shall continue until dissolved by the Lieutenant Governor.” Third, while Christie did not quote from section 13(1) of the Legislative Assembly Act, he did not need to do so in order to refute and disproof Democracy Watch’s claim that the Lieutenant Governor-in-Council “improperly exercised its authority” to issue the writs of election, since this action depends upon the first two, and the first two were, in fact, valid.

Christie concludes:

“[17] To repeat, I find that, based on the plain meaning of the legislation and the underlying public policy as noted above, the authority of the Premier, to have advised the Lieutenant Governor to dissolve the Legislative Assembly and to set a date for a general provincial election, is not restricted as suggested by the Applicant. Nor, on the same basis, is the Lieutenant-Governor’s discretion to accept it fettered as suggested by the Applicant. The matter is, as noted above, “… a quintessentially political decision based on prerogative powers, not one that is justiciable.” The decisions by the Premier in this case to seek the dissolution of the Legislative Assembly, and the Lieutenant-Governor’s acceptance of that advice, are political decisions and therefore, as noted in Conacher, not justiciable.”[14]

At this stage, I would go farther than Christie and point out that Democracy Watch failed to point out some crucial facts: namely, that a Lieutenant Governor who rejects a Premier’s advice to dissolve the legislature forces that Premier to resign and therefore, in practical terms, can only exercise her discretion to reject a Premier’s constitutional advice to dissolve the legislature when she can appoint the Leader of the Opposition as the next Premier to take responsibility for his predecessor’s dismissal and the Governor’s judgement that an election should not be held. Democracy Watch omits this fact – supported by many Canadian precedents, most recently in British Columbia in 2017 – because it would derail its entire flimsy and false argument.

Christie then correctly points out that New Brunswick’s fixed-date election law “directs the Premier to advise the Lieutenant-Governor to dissolve the Legislative Assembly and hold an election by a set date”[15] (Christie’s emphasis); in other words, fixed-date election laws in Canada only mandate a maximum lifespan of a parliament or legislature of somewhere between four and five years, not a minimum lifespan of four years. Christie also quotes from the Court of Appeal of Alberta’s recent Engel ruling from 2020, which recognised that the late Jim Prentice’s decision to call a snap election in 2015 amounted to a “quintessentially political decision based on prerogative powers, not on that justiciable.”[16]

Having refuted all of Democracy Watch’s spurious claims, Christie then turned his attention to eviscerating Duff Conacher personally in paragraphs 19 through 21.

“[19] I cannot let pass the opportunity to discuss certain portions of Mr. Conacher’s affidavit filed in this Application and in support of the organization he represents. These portions do not convey to me a description of relevant facts necessary to establish the factual context of the case. Rather, the portions are nothing but an unhelpful revelation of his personal opinions and conjecture. […]”[17]

Christie then quoted and underlined some of Conacher’s ham-fisted conjecture – all these I believes and In my opinions. Christie acknowledges the obvious yet often overlooked fact that politicians make political calculations and that while the voters can decide to punish politicians accordingly, none of us should be surprised when politicians act like politicians. The voters, not the courts, decide upon these political questions, such as whether a Premier made the right decision in obtaining a snap election.

“[20] As I read those portions (and others) of Mr. Conacher’s affidavit, I am drawn to the view that the interests he raises in the name of the ‘public’s interest’ are, in reality, his personal interests or concerns. As he deposes, Mr. Conacher is concerned that the election was called to take political advantage of circumstances or for partisan reasons. In a political system dominated by party politics, elections called for partisan reasons could hardly be a basis for overturning one. At the end of the day, the voters are better placed to decide the wisdom of such action.”[18]

Christie concludes:

[21] For the reasons above, the Application is dismissed. In my view, the matter borders on being considered frivolous. There was little reasonable hope that the facts and applicable legislation in this case would produce a result different from the consistent pattern of jurisprudence existing in other jurisdictions. The Premier in New Brunswick was free to advise the Lieutenant-Governor that the Legislative Assembly should be dissolved, and an election called at a date other than has been identified in the Act. The Lieutenant-Governor was free to exercise her discretion in response to such advice.

Conclusion

Since 2008, we have seen twelve instances where prime ministers and premiers have secured early dissolution and snap elections without first having lost the confidence of the elected assembly in a formal vote in the chamber – and fully seven such instances in the last two years alone. I have assigned three possible outcomes: win, lose, or draw. A win means either going from a minority to a majority or from one majority to another, and a loss means losing power altogether, whether the incumbent started with a minority or a majority.

Assigning a draw requires more judgement, but I would argue that indicates a kind of stalemate of one minority to another minority: the incumbent government does not lose power, but neither does it gain the majority that all incumbent prime ministers and premiers seek. The two federal snap elections – Harper’s in 2008 and Trudeau’s in 2021 – yielded the two “draws”; while the incumbent governments remained in power in both cases, but both Harper and Trudeau failed in their goal to expand their pluralities to majorities. Pearson’s snap election in 1965 two years after the previous election would likewise have fallen under this category, since his Liberals went from one plurality to one slightly larger plurality but short of a majority. I suppose that I would count, under this typology, going from a majority to a plurality as a draw as well, but closer to the loss end of the spectrum. So far, no such examples have occurred after a snap election, but the scheduled federal general election of 2019 produced such an outcome.

First Ministers Who Secured Snap Elections Without First Having Lost a Vote Result for the Incumbent Government
2008: Harper (Canada) Minority parliament and single-party minority government Draw: the Conservatives expanded their plurality but failed to secure a majority
2014: Marois (Quebec) Minority legislature and single-party minority government Loss: The incumbent PQ lost and the rival Liberals won a majority
2014: Wynne (Ontario) Minority legislature and single-party minority government Win: The incumbent Liberals went from a plurality to a majority
2015: Prentice (Alberta) Majority Parliament Loss: The rival New Democrats won a majority
2015: MacLauchlan (PEI) Majority Parliament Win: The Liberals expanded their majority
2019: MacLauchlan (PEI) Majority Parliament Loss: The Liberals came in third in a minority parliament, and the Progressive Conservatives took office
2019: Ball (Newfoundland & Labrador) Majority Parliament Loss: The Liberals went from secure majority to tenuous plurality and probably guaranteed another early election
2019: Pallister (Manitoba) Majority Parliament Win: The Conservatives win a 2nd parliamentary majority.
2020: Higgs (New Brunswick) Minority legislature and single-party minority government Win: The Conservatives secured a parliamentary majority
2020: Horgan (British Columbia) Minority legislature and single-party minority government Win: The New Democrats secured a parliamentary majority
2021: Furey (Newfoundland & Labrador) Minority legislature and single-party minority government Win: The Liberals won a bare majority.
2021: Trudeau (Canada) Minority parliament and single-party minority government Draw: The Liberals stayed at a plurality in a minority parliament with almost precisely the same number of MPs.

These twelve snap elections indicate that the odds still slightly favour the victory of the incumbent government – but not without great risk.

  • Draw: 2
  • Loss: 4
  • Win: 6.

Furthermore, 3 of the 4 losses came when the incumbent premier already possessed a parliamentary majority, and only 2 out of the 6 wins occurred when the incumbent went into the election with a majority. These trends suggest that voters show more willingness to punish incumbent premiers who display more obvious and less plausibly deniable naked ambition; after all, when they call a snap election while already commanding a majority, they cannot fall back on blaming the opposition for obstructing their legislative programs. Voters seem more willing to accept snap elections when the incumbent government can only muster a plurality of seats and could fall on a vote at any time, given that 4 out of 6 of these victories involve going from a minority to a majority government. The idea of allowing the voters to evaluate the performance of a single-minority government seems to resonate, irrespective of what vexatious litigants insist.

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Notes

[1] Jacques Poitras, “Brian Gallant’s Minority Government Defeated After Losing Confidence Vote,” CBC News, 2 November 2018; CBC News, Premier Blaine Higgs Cabinet Includes All 4 Women in Caucus, Lone Francophone,” 9 November 2018; New Brunswick, Executive Council Office, “News Release: Transition Team Announced,” 6 November 2018; New Brunswick, Executive Council Office, “News Release: Higgs Sworn In As 34th Premier of New Brunswick,” 9 November 2018.

[2] Jacques Poitras, “Blaine Higgs Calls New Brunswick Election for September 14, Despite Pandemic,” CBC News, 17 August 2020.

[3] Jacques Poitras, “Higgs Shifts Tone, ‘Not Hankering for an Election,’” CBC News, 21 July 2020; Jacques Poitras, “Behind-the-Scenes Preparations Underway to Navigate Risks of Possible Snap Election,” CBC News, 22 July 2020.

[4] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233.

[5] Conacher v. Canada (Prime Minister) 2009 F.C. 920; Conacher v. Canada (Prime Minister) 2010 F.C.A. 131; Engel v Alberta (Executive Council), 2019 ABQB 490; Engel v Prentice, 2020 ABCA 462.

[6] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 17.

[7] Tom Engel, et al. v. James Prentice, PC, QC, as President of Executive Council of the Province of Alberta, 2021 CanLII 44584 (SCC).

[8] Conacher v. Canada (Prime Minister) 2009 F.C. 920.

[9] Conacher v. Canada (Prime Minister) 2010 F.C.A. 131.

[10] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 1.

[11] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 2.

[12] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at paras 6-7.

[13] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 8.

[14] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 17.

[15] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 13.

[16] Engel v Prentice, 2020 ABCA 462, at para 27.

[17] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 19.

[18] Democracy Watch v New Brunswick (Attorney General), 2021 NBQB 233, at para 20.

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Crown (Powers and Office), Dissolution, Fixed-Date Elections. Bookmark the permalink.

1 Response to The Courts Uphold the Correct Interpretation of Fixed-Date Election Laws for the Fifth Time Since 2009

  1. Rand Dyck says:

    Hi James,

    Another good one. I probably said this to you long ago, but if not: I think Conacher started out as an litigation-oriented American, and never understood the Canadian system. I think he did several good things with Democracy Watch, but he really annoyed me a number of times by pursuing an issue through the courts when it was inappropriate to do so. And talk about flogging a dead horse!!!

    I couldn’t access your review of the Bowell book–can you send? I just saw in passing that you dismissed Thompson as an insignificant PM. I have always admired your mastery of every aspect of Canadian history, but in my recollection, Thompson was pretty good in the circumstances, and probably would have been one of the best, if he hadn’t got over-excited at the sight of Queen Victoria! LOL

    Thanks for the invite, but there is no possibility of visiting until the MOVE is over.

    Happy New Year. See you soon!

    Rand

    Virus-free. http://www.avast.com

    On Wed, Dec 29, 2021 at 5:32 AM James Bowden’s Blog wrote:

    > J.W.J. Bowden posted: ” Introduction Blaine Higgs became Premier of New > Brunswick on 9 November 2018 because Brian Gallant’s Liberal ministry lost > the vote on the Address-in-Reply to the Speech from the Throne in the > minority legislature that voters had returned on 24 Sep” >

    Like

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