A court challenge has been filed that argues Premier Jim Prentice has no right to call an early election.

Edmonton lawyer Tom Engel filed an injunction application in Court of Queen’s Bench this afternoon, in which he argues 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.

Engel argues the Prentice government can only ask Lt.-Gov. Don Ethell to dissolve the legislature for an election if there is a vote of non-confidence in the government following the failed introduction of a “drastic policy change.”

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 to get the province off the boom-and-bust cycle linked to oil prices.

But Engel argues if the budget is passed by “a majority of elected MLAs, then by definition, there remains a mandate to implement it.”

Engel notes that Prentice and his Conservative MLAs hold elected power and have a significant majority. The lieutenant governor's discretionary powers to call an election only apply, Engel argues, “when the premier no longer commands the confidence of a majority of MLAs in the legislature, or where the premier and executive council advise the lieutenant-governor to act in an unlawful or unconstitutional manner.

Any alternative interpretation that would allow Prentice to “choose the date of a general election (outside of the fixed election period) not only defeats the obvious intent of the legislature but would violate section 3 of the Charter,” the document states.

"“To suggest the premier and Executive Council require a mandate while clearly having a lawful and democratic one, is to suggest the seeking of a mandate of increased political advantage but not increased legal or moral authority," the ruling continues.

Snap election illegal

Engel said Prentice has made it clear he intends to call a “snap election.” But the lawyer contends such an election would be unnecessary and illegal and would represent an unnecessary waste of an estimated $28 million when the government has repeatedly told the public it is in serious financial difficulties.

“To suggest that doing the ordinary business of governing (what Albertans have already sent them to do on our behalf) by introducing a budget bill could legitimately be the event which would require a new mandate from the electorate is untenable,” Engel states.

“The applicant (Engel) seeks this court’s ruling that to spend public money to pursue a new mandate to govern while possessing full confidence of the legislature, is a power that may no longer be exercised by the Respondent Premier, or any Premier, without first amending or repealing section 38.1 of the Election Act.”

The previous Redford government passed a law that fixed Alberta election dates to every four years. At least one legal expert has publicly argued Prentice and his government are bound by that law.

“This is the first real test to see if the new fixed-election law will prevail over political opportunism,” University of Calgary law professor Peter Bowal argued in an opinion editorial published in the National Post on March 18.

In Bowal’s opinion, the government can still legally call an early election but to do so would be undemocratic.

“Yes, a strong majority government can do as it pleases with its laws and election dates,” he said in the editorial. “It is, however, worth recalling its own steadfast words rejecting election manipulation only a few years ago.”

Engel is seeking an interim order that would prohibit Prentice and the Conservative party from calling an election until the fixed election date, and would confirm the premier must abide by the fixed election-date law.

Engel cites a Supreme Court of Canada judgment which he said reinforces the contention that a snap election favours mainstream political parties with more resources. The Tories now hold 72 of 87 seats in the Alberta legislature.

“There already is reason to be concerned that the most affluent parties will dominate the public discourse and deprive their opponents of a reasonable opportunity to speak and to be heard,” the Supreme Court ruled in Figueroa v. Canada.

“Legislation that augments this disparity increases the likelihood that the already marginalized voices of political parties with a limited geographical base of support will be drowned out by mainstream parties with an increased ability to both raise and retain election funds,” the ruling states.

It is expected Prentice, or someone representing his government, will be served with the application today.

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