Lieutenant-governor ruling could impact group's challenge to early election call

The legal battle over New Brunswick's unilingual lieutenant-governor could complicate another ongoing courtroom fight, the dispute over Premier Blaine Higgs's early election call in 2020.

Last year a Court of Queen's Bench judge threw out a lawsuit by the watchdog group Democracy Watch. The group argued Higgs violated the province's fixed-date election law when he triggered the campaign two summers ago.

Democracy Watch asked the New Brunswick Court of Appeal to overturn that, but one justice on the top court is questioning whether the recent ruling that Lt.-Gov. Brenda Murphy's appointment was unconstitutional could upend the election date case.

The federal government's appeal of the lieutenant-governor ruling "seems to bring into question some very fundamental aspects of the lieutenant-governor's role and the qualifications for the office," Justice Ernest Drapeau said during a hearing Tuesday.

He suggested the court of appeal should delay hearing the fixed-date election case until the lieutenant-governor case is decided, because the election case involves a dissolution of the legislature "by a lieutenant-governor whose appointment may not be valid." 

The court itself raised the issue before the hearing, asking lawyers for the province and Democracy Watch to submit additional arguments about the lieutenant-governor ruling. 

Unilingual lieutenant-governor

Court of Queen's Bench Chief Justice Tracey DeWare ruled in April that the federal appointment of the unilingual Murphy violated language-equality guarantees specific to New Brunswick in the Charter of Rights and Freedoms.

Ottawa is appealing that ruling to the New Brunswick Court of Appeal. No date has been set for a hearing.

In her ruling, DeWare made a point of not invalidating Murphy's 2019 appointment, saying that doing so could trigger a "legislative and constitutional crisis" by calling into question the validity of all the laws and cabinet orders she has signed.

But Drapeau said Tuesday it's conceivable a Court of Appeal panel of three judges could determine that DeWare "did not go far enough" and put into doubt all of Murphy's actions, including granting Higgs's request for an election.

Provincial government lawyer Rose Campbell acknowledged if the Court of Appeal did that, it would have far-reaching implications for "everything that's been done" by the government in Murphy's name.

But she argued the court could rule on the fixed-date case now because it would be just one of those many issues to be dealt with. 

The court adjourned the case Tuesday without a decision but not because it decided to wait for the appeal of DeWare's ruling.

Instead, it said Court of Queen's Bench Thomas Christie made a legal mistake by not ruling on whether the Ottawa-based, self-styled watchdog group Democracy Watch had public-interest standing to launch the fixed-election-date case in the first place.

Only a Court of Queen's Bench judge can make that decision.

"He's got to call it," Drapeau said.

He and the two other appeal justices sent the case back to Christie for a ruling on standing. 

"We want the issue of public-interest standing to be determined where it is supposed to be determined."

Early election call dispute

Democracy Watch is arguing that Higgs violated the province's fixed-date-election law when he launched the provincial campaign in August 2020. The law would have set the date for October 2022.

But a subsequent section of the law says it can't prevent the lieutenant-governor from exercising her discretion on when to dissolve the legislature.

In his ruling last year, Christie said the lawsuit "borders on being considered frivolous," and it's not up to the courts to rule on election timing. 

"At the end of the day, the voters are better placed to decide the wisdom of such action," he wrote.

"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."

Democracy Watch is arguing Christie made several legal mistakes in his ruling.

Drapeau pointed out Tuesday that no one in New Brunswick had challenged Higgs's early election call and questioned whether Democracy Watch meets the legal requirement for public-interest standing.

"Needless to say it is not a New Brunswick voter," he said. "It does not reside in New Brunswick. It had no tangible interest in the election outcome … and it has suffered no specific harm. In fact it does not allege any harm."

While the case raises "lovely questions," Drapeau said, "I'm not in the business of chastising premiers of New Brunswick for the fun of it." 

Democracy Watch's lawyer Jamie Simpson argued that the organization has been active as a watchdog across Canada on various issues, including fixed-date election laws, and has hundreds of supporters in the province. 

"It does have a stake in the way this election was called," he argued.

Simpson told reporters after the hearing that it's not clear whether Christie will order a new hearing on Democracy Watch's standing or simply issue a ruling based on what was argued in court when he heard the lawsuit.