N.B. legislature to close loophole in fixed-date election law after court ruling

The New Brunswick legislature is fixing a flaw in the province's fixed-date election law.

An amendment approved by a committee of MLAs on Tuesday aims to make the statute lawsuit-proof if a premier opts to call an early election in the future.

The change is a response to a ruling last December from the New Brunswick Court of Appeal that opened the door to fighting such early election calls.

By removing a reference to the premier in the act, the province will likely eliminate that possibility.

"The only reason we're here: take out the word 'premier,' and make it consistent with the rest of the country," Justice Minister Ted Flemming said while responding to opposition questions on the bill. 

The section of the Legislative Assembly Act says an election must be held on the third Monday of October in the fourth year following the last election.

Democracy Watch used that to challenge the legality of Premier Blaine Higgs calling an election in August 2020,  less than two years into a four-year mandate.

The group's legal challenges of early election calls in Ottawa and other provinces have failed, but New Brunswick's top court said in its decision last year that — in theory — a lawsuit here might succeed someday.

Flemming confirmed the bill was drafted in response to that.

"Every time you turn around, they're taking a legal action against some kind of an election," he said of the self-styled watchdog group.

The bill "came about because the court of appeal, in listening to the Democracy Watch appeal on the 2020 election, said … 'Why is New Brunswick's statute different than everyone else's? It enables mischief or whatever.'"

Democracy Watch co-founder Duff Conacher said he was not surprised by the move.

He said it shows Higgs's desire to "get the power back to call unfair snap elections that favour his party."

New Brunswick's fixed-date election law is the only one that mentions a premier.

Higgs had a minority government when he called the snap election in 2020 and used it to win a majority.

Democracy Watch didn't ask for the election call or the result to be reversed but wanted it declared illegal.

The trial judge ruled in favour of the province, saying the law and the courts cannot restrict the constitutional role of a lieutenant-governor and the convention that they dissolve the legislature when a premier asks them to.

The fixed-date section of the act, added in 2007, makes it clear the lieutenant-governor's role is not affected.

"Nothing in this section affects the power of the Lieutenant-Governor to prorogue or dissolve the Legislative Assembly at the Lieutenant-Governor's discretion," it says.

The appeal court had a different take, based on the law's explicit phrase that "the premier shall provide advice" to the lieutenant-governor for an election on the fixed-date schedule.

The premier's role can be challenged, the court of appeal said. 

The law "prohibits … dissolution and election advice [from the premier] driven by purely partisan electoral advantage," the ruling said.

"The Premier is not only honour bound but, as well, legally bound" to advise the lieutenant-governor within the bounds of the law, it added.

Democracy Watch failed to prove there was a "purely partisan" motive in the 2020 call, the court said, but if it met that test in a future case, an election call could be overturned.

"By removing reference to the premier, the courts can no longer inquire if a future early election is called in 'pursuit of purely partisan electoral advantage,'' said lawyer Lyle Skinner, an expert on constitutional conventions and legislatures. 

The committee's approval of the bill means it will return to the full legislature for third reading and a final vote in June.