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ELECTIONS - General elections - Constitutional issues  

Monday, February 08, 2021 @ 9:55 AM  


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Appeal by Engel and Rigney from a decision dismissing their application for a declaration that s. 38.1(2) of the Election Act prohibited the premier of Alberta from advising the lieutenant-governor of the province to dissolve the legislature and order a general election outside the fixed election period and dismissing Rigney’s application for a declaration that his s. 3 rights under the Canadian Charter of Rights and Freedoms (Charter) were breached because a general election was called before the fixed election period. Rigney argued he arranged his affairs so that he could run for office during the fixed election period, and when the premier called the election early, he lost the opportunity to run as a candidate. The premier justified calling the election on the basis that the government needed a mandate from Albertans to pass its budget. In support of their position that the 2015 election contravened s. 38.1 of the Election Act, the appellants relied on principles of statutory interpretation and extrinsic aids including statements made in the legislature at the time of the amendment and a government backgrounder. They argued that if s. 38.1 of the Election Act did not operate to limit the discretion of the majority government to call an election, then the 2011 change in law was an elaborate deception, backed by deliberate lies to the legislature from government ministers designed to trick Albertans into thinking the law had changed. The chambers judge found that s. 38.1 of the Election Act expressly preserved the Crown Prerogative to dissolve the legislature and call an election outside of the fixed election period. He found the fixed election period in s. 38.1(2) was uncontrovertibly subject to the lieutenant-governor’s prerogative, and a plain reading of the section revealed no intention to limit the lieutenant-governor’s power to dissolve the legislature. The chambers judge held that while Rigney had a reasonable expectation that the Alberta election would be called within the fixed election period under s. 38.1(2) of the Election Act, that expectation was not constitutionally guaranteed. Even if it were constitutionally guaranteed, holding an election in accordance with the Election Act would be a reasonable limit on such a right.

HELD: Appeal dismissed. The premier’s conclusion that the precipitous state of Alberta’s public accounts required an early election was a quintessentially political decision based on prerogative powers, not one that was justiciable. The specific reservation of the powers of the lieutenant-governor enabled the premier to recommend that the legislature be dissolved. The chambers judge did not err in finding that Rigney was not denied a meaningful chance to participate in the election. Even if s. 38.1(2) of the Election Act created a statutory expectation about when elections would normally be held, that did not evolve into a constitutional right that they would not be held at any other time.

Engel v. Alberta (President of Executive Council), [2020] A.J. No. 1405, Alberta Court of Appeal, F.F. Slatter, F.L. Schutz and E.A. Hughes JJ.A., December 14, 2020. Digest No. TLD-February82021002