Court challenge fails to stop Alberta snap election

A judge Monday dismissed a court challenge of Premier Jim Prentices right to call an early spring election.

The judge agreed with the governments lawyer that a federal court had already decided much the same issue.

I am not satisfied that there is a serious issue to be tried here, Court of Queens Bench judge Ken Nielsen said, referring to a 2010 federal Court of Appeal case.

But Nielsen did not, as the governments lawyer requested, dismiss the entire application. He said the applicants were free to seek a more-detailed hearing, but suggested the outcome would probably be the same as in the previous Court of Appeal case.

Edmonton lawyer Tom Engel and former Sturgeon County mayor Don Rigney filed an injunction application last week. They argued Prentice must uphold the promise and legal obligation to hold the next general election during the legislated time frame of March 1, 2016 to May 31, 2016.

That time frame is mandated under Albertas Elections Act, through an amendment introduced by the Conservative government and passed into law in 2011. It fixes a date for a provincial election every four years.

Then-Justice Minister Verlyn Olson told the legislature the fixed-election law was needed to avoid political opportunism and to bolster democracy.

But there is another subsection of the same act that essentially says the premier is free to call an election whenever he pleases by asking the provinces lieutenant governor to dissolve the government.

The lieutenant-governor has the discretion, under the constitution, to refuse, although it is rare for such a request to be denied.

Fixed-election law meaningless?

Calgary lawyer Michael Bates, acting for Engel and Rigney, argued that if Prentice is allowed unfettered power to call an election whenever he sees fit, it effectively renders meaningless the fixed-election date amendment.

Bates said the amendment to the Elections Act had to have produced some sort of legal change.

What was it, if it wasn't to limit when the premier can seek an election from the lieutenant-governor? he said.

In passing the fixed-election date amendment, the government obviously intended for it to have a purpose, Bates argued, adding that allowing Prentice to call an election whenever he chooses would actually cause harm.

Bates said people like Rigney relied on the fixed-election date law to plan their political careers and lives, and calling an election a year early would effectively deprive Rigney of his right to run in the election.

Lawyer David Phillip Jones, acting for the government, said the same provisions are included in election acts in every province, territory, and federally. Jones said there is difference between an expectation of an election and a legal requirement for an election.

Jones stressed that the Supreme Court of Canada had turned down an appeal of the Federal Court of Appeal ruling and it was the only precedent before the court in Alberta.

No irreparable harm

Nielsen found there was no evidence of any harm, let alone irreparable harm, to either Engel or Rigney. He said Rigney or Engel could have filed an application years ago to challenge the law.

In his summation, Nielsen observed that it is not lost on me that the electorate may be allowed to vote on a budget that they may not have otherwise been allowed to do.

Prentice has repeatedly suggested he may need to call an early election to seek a mandate from Albertans for the major budget changes he has said his government must implement in order to get the province off the boom-and-bust budgeting cycle linked to oil prices.

Outside court, Engel said they will await the written rulings for the judges decision before deciding whether to continue to challenge the law.

"The government made a whole bunch of promises in 2011 about how this would never happen after this law was passed - and they passed a law, Engel said.

And then it just appears that all these promises can be broken."