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]
