Democracy Watch had argued that the premier's decision to go to the polls early was illegal because of a fixed-date election law.

The New Brunswick Court of Appeal says Higgs was within his legal rights to trigger the election two years early.

Key sections of the law "bind" the premier to ask for a dissolution of the legislature according to the legislation's schedule, "while preserving his or her right to derogate from that obligation in certain circumstances," Justice Ernest Drapeau wrote in a 38-page decision.

Higgs had led a minority government for two years when he called the election in August 2020 in the midst of the first year of the COVID-19 pandemic.

His Progressive Conservatives went on to win a majority government.

The court of appeal decision rejecting the Democracy Watch case upholds a Court of King's Bench ruling by Justice Thomas Christie, but Drapeau says he came to the same conclusion for different reasons.

Duff Conacher is co-founder of Democracy Watch. The watchdog group argued that the premier's decision to go to the polls early was illegal because of a fixed-date election law. (CBC)

The Legislative Assembly Act says a premier must advise the lieutenant-governor to authorize an election on a fixed four-year schedule. 

But another section says that nothing in the law takes away the lieutenant-governor's discretion to act on a premier's request for an early vote.

In his 2021 ruling, Christie said Democracy Watch's concerns that Higgs had called the election for partisan reasons was not enough to affect that discretion.

"In a political system dominated by party politics, elections called for partisan reasons could hardly be a basis for overturning one," he wrote. "At the end of the day, the voters are better placed to decide the wisdom of such action."

Drapeau, writing for a panel of three justices that heard the case, disagrees. 

He says the law does indeed put limits on Higgs's ability to call an election whenever he wants, prohibiting it when "driven by purely partisan electoral advantage."

But he continues there was "no admissible evidence the Premier initiated the process leading to the unscheduled election of September 14, 2020, for purely partisan electoral advantage."

Under the schedule in the legislation, the next New Brunswick election is scheduled for Oct. 21, 2024.

Activist Duff Conacher of Democracy Watch had asked the Court of Queen's Bench to rule that Higgs violated the province's fixed-date election requirements when he triggered the election.

But Justice Thomas Christie says in his ruling that the legislation explicitly does not take away the power of the lieutenant-governor to dissolve the legislature when a premier asks her or him to do so.

"Her discretion to dissolve the Legislative Assembly remains intact," Christie writes, adding the Democracy Watch challenge "borders on being considered frivolous."

He also writes that Conacher's concern that Higgs called the election to take advantage of political circumstances wasn't enough to warrant the lawsuit.

"In a political system dominated by party politics, elections called for partisan reasons could hardly be a basis for overturning one," Christie wrote. "At the end of the day, the voters are better placed to decide the wisdom of such action."

What existing legislation allows

The amendments to the Legislative Assembly Act, passed in 2007, set a date for the next scheduled provincial election based on when the previous one was held.

Under the law's formulation, an election was due Oct. 17, 2022. Higgs visited Lt.-Gov. Brenda Murphy on Aug. 17, 2020, more than two years early.

The Progressive Conservative government was riding high in the polls at the time, in part because of the province's low COVID-19 case numbers. Higgs didn't have a majority in the legislature, but he secured one when New Brunswickers voted on Sept. 14, 2020.

The law itself says "nothing in this section" takes away from the lieutenant-governor's power and discretion under the Constitution to dissolve the legislature.

Precedence in court

In their arguments on Conacher's case, government lawyers quoted from a Liberal cabinet minister making the same point during debate on the bill in 2007.

Christie's decision also points out that Conacher lost when he filed a similar lawsuit over Prime Minister Stephen Harper's calling of an early election in 2008. A challenge of an early Alberta election was also rejected by courts there.

Democracy Watch founder Duff Conacher asked the Court of Queen’s Bench to rule that Higgs violated the province’s fixed-date election requirements when he triggered the election, similar to his 2008 lawsuit over Prime Minister Stephen Harper’s calling of an early election in 2008. (Adrian Wyld/CP)

The judge says he asked Conacher's lawyer to show how the New Brunswick case was different from the others, and the lawyer admitted there was no major difference.

"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," Christie wrote.

He also rapped Conacher for an affidavit that he says was based largely on the activist's "personal opinions and conjecture" rather than facts.

"The interests he raises in the name of the 'public's interest' are, in reality, his personal interests or concerns," Christie wrote.

With Higgs's early election last year, the next vote is now scheduled for Oct. 21, 2024.