Case: Engel v Prentice, 2020 ABCA 462 (CanLII)

Keywords: “Fixed election period”; Election Act, RSA 2000, c E-1; s. 3 Charter rights

Synopsis:

The Election Act, RSA 2000, c E-1 is amended to include s. 38.1(2), establishing a “fixed election period”. The Appellants seek a declaration that s. 38.1(2) prohibits the Premier of Alberta from calling an election outside the fixed election period; that their s. 3 Charter rights are breached by an election called outside the fixed election period.

The Chambers Judge dismisses the Appellants’ application for declaratory relief. They appeal. The Court of Appeal dismisses the appeal.

Importance:

Did the 2015 election contravene s. 38.1(2) of the Election Act? The Court of Appeal says “no”. To get a better sense as to how they arrived at that answer, consider the text of s. 38.1. Although s. 38.1(2) establishes a “fixed election period”, s. 38.1(1) explicitly preserves “the powers of the Lieutenant Governor, including the power to dissolve the Legislature, in Her Majesty’s name, when the Lieutenant Governor sees fit.” In other words, calling the 2015 election was consistent with the Crown Prerogative to call an election. (See paras. 13-14; see also Conacher v Canada (Prime Minister), 2009 FC 920, aff’d 2010 FCA 131, leave to appeal dismissed 2011 CanLII 2101 (SCC)).

Did the 2015 election violate the Appellants’ s. 3 Charter rights? The Court of Appeal says “no”; affirming the finding of the Chambers Judge on the basis that, “[e]ven if s 38.1(2) of the Election Act created a statutory expectation about when elections would normally be held, that does not evolve into a constitutional right that they will not be held at any other time.” (See para. 36).

Counsel for the Appellants: Michael Bates (Ruttan Law, Calgary)

Counsel for the Respondent: Aleisha Bartier (Department of Justice and Solicitor General, Edmonton)