To the Federal Court and back again: a Chief Electoral Officer’s tale

The Chief Electoral Officer has reaffirmed his earlier decision not to recommend moving the election date – here’s what happened, and why it’s important

On July 23, 2019, a judge of the Federal Court ordered Canada’s Chief Electoral Officer (“CEO”) to reconsider whether to recommend moving this fall’s fixed election date from October 21, 2019 to October 28, 2019.

Based on the direction of the Court, the CEO issued a reconsideration on July 29, in which he once again decided not to recommend moving the election date.

If you, your organization, or your employees plan to participate in the 2019 federal election campaign, then the timing of Election Day could affect you. This election law update provides general guidance on what the election date controversy could mean for you or your business. If you have specific questions or concerns, please contact Awi SinhaAdam Goldenberg, or Will Horne. We would be pleased to assist you.

Background

Members of the Orthodox Jewish community — including one Conservative candidate — had previously asked the CEO to recommend changing the election date. October 21, 2019 is in the middle of Shemini Atzeret, a Jewish holiday. The Tory hopeful asserted that, unless the election is held on a different day, she will be unable to campaign or vote on Election Day, and will also be prohibited by religious law from asking other Jews to vote or campaign for her that day: see Aryeh-Bain v. Canada (Attorney General), 2019 FC 964 (“Federal Court Reasons”), at paras. 7-8.

The CEO refused to recommend that Cabinet move the date of the election. The Conservative candidate teamed up with a Jewish community activist, and took the CEO to court. They brought an application for judicial review. On July 23, they won, and the CEO was ordered to reconsider his earlier decision. However, on July 29, the CEO reaffirmed that he would not recommend moving the date, essentially placing the applicants back at square one.

Fixed election dates in Canada

Canadians are scheduled to go to the polls to elect the 43rd Parliament on October 21, 2019. This is the date prescribed by s. 56.1(2) of the Canada Elections Act (the “Act”): “[E]ach general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election”.

Fixed election dates are a relatively recent phenomenon in Canada. They were introduced in May 2007 as an amendment to the Act. Their purpose, according to then-Prime Minister Stephen Harper, was to “prevent governments from calling snap elections for short-term political advantage”.

There were two provisos. First, the legislation enacted s. 56.1(1) of the Act, which preserves the Governor General’s power to dissolve Parliament. The Governor General exercises that power on the advice of the Prime Minister. In practice, this means that governments are not, in fact, “prevent[ed] … from calling snap elections for short-term political advantage”; Mr. Harper’s Conservative government arguably did just that in 2008: see Conacher v. Canada (Prime Minister), 2009 FC 920, at paras. 12 and 60.

Second, the legislation enacted s. 56.2(1) of the Act. It provides that:

If the Chief Electoral Officer is of the opinion that [the statutory fixed Election Day] is not suitable … , including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day … and shall recommend to the Governor in Council that polling day be that other day.

The CEO has never exercised his discretion to “choose another day” and recommend it to the Governor in Council, i.e., the federal Cabinet. If he were to make such a recommendation, the Cabinet would have until “August 1 in the year in which the general election is to be held” to act on it: Act, s. 56.2(5). The Act provides that “[t]he alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week”: Act, s. 56.2(4).

Canada has had three elections since Parliament added the fixed election date provisions to the Act. In 2008, as noted above, Mr. Harper asked the Governor General to dissolve Parliament a year early. (To be specific, he chose to call that year’s general election for October 14, in the midst of another Jewish holiday: Sukkot.) In 2011, the House of Commons passed a non-confidence motion in the Conservative government, triggering another early election. The 2015 general election was the first — and is, to date, the only — federal election held on schedule.

The original decision of the CEO

The CEO’s stated justifications for not recommending a date change were that:

  • “Elections Canada does not choose the date of elections”, but rather Parliament did so, by amending the Act (Federal Court Reasons, at para. 14);
  • Elections Canada was working with the Jewish community to ensure that there would be publicized opportunities to vote on days that did not conflict with religious observance (ibid., at paras. 16, 28, 30 and 44);
  • “the Jewish High Holy Days fall within the election campaign period whether election day is held on October 21 or October 28”, and so “[a] change of the election date would affect the timing of the days of restricted activity, but not the duration” (ibid., at para. 30);
  • “the CEO cannot now recommend a change in the date of the election” (ibid., at para. 27) and “I am not ready to make that recommendation this close to the start of the election (ibid., at paras. 30 and 31);
  • “[t]he decision not to recommend moving the election date takes into account a wide range of operational matters such as: the availability of suitable polling places … ; the employment of field staff for an additional week in 338 ridings; and the extension of all related contracts for field services by one week” (ibid., at paras. 31 and 43); and
  • moving Election Day to October 28 would conflict with municipal elections in Nunavut (ibid., at para. 43).

The decision of the Court

The applicants argued that, in refusing to recommend moving Election Day, the CEO had acted — or, more specifically, failed to act — in a manner that was unconstitutional. Specifically, the applicants asserted that the CEO’s decision had infringed their rights under s. 2(a) (freedom of religion), s. 3 (the right to vote), and s. 15 (equality) of the Charter of Rights and Freedoms.

By the time the case was heard, the CEO had conceded that his decision not to make a recommendation under s. 56.2(1) of the Act had, indeed, limited all three of these Charter rights. The issue was whether, pursuant to s. 1 of the Charter, these limits were “reasonable limits prescribed by law” that could “be demonstrably justified in a free and democratic society”.

The court stopped short of answering that question. Instead, the Federal Court’s judgment turned on whether the CEO had given due consideration to the conflict between the fixed election date and the Charter values of the Orthodox Jewish voters and candidates. The court concluded that he had not: Federal Court Reasons, at paras. 55, 57, 60 and 64-65. Though “all of the reasons provided as to why the date cannot be changed may very well be justified” (Federal Court Reasons, at para. 56), that in itself was not enough. The CEO had to “consider the exercise of his discretion [to recommend moving the election date] as ‘an option or avenue reasonably open’ to him that would reduce the impact on the [a]pplicants’ Charter rights and still allow the CEO to further the relevant statutory objectives”: ibid., at para. 60. Absent “evidence on the record to demonstrate that the CEO undertook the requisite proportionate balancing” (ibid.), his decision could not stand.

However, none of this meant that the CEO’s ultimate conclusion was incorrect. The court limited its criticism to the sufficiency of the CEO’s reasoning, as evinced by his reasons for refusing to exercise his discretion under the Act: “Simply put, the record d[id] not disclose the necessary balancing of rights and freedoms in relation to the statutory objectives” (ibid., at para. 64), and so, “by failing to address and balance the specific Charter issues raised by the applicants, the CEO’s decision [wa]s not justifiable, transparent, and intelligible”: ibid., at para. 65. Still, the court refused to require the CEO to make a recommendation, only to reconsider whether to do so: ibid., at paras. 66-67.

Why the decision matters

Section 56.2(1) of the Act gives the CEO discretion to recommend moving the date of the election. The statutory language is permissive, not mandatory: “If the [CEO] is of the opinion that [the fixed election date] is not suitable … [he] may choose another day”. The Act includes a “conflict with a day of … religious significance” among the possible justifications for recommending a date change.

Canadian courts struggle in reviewing the constitutionality of discretionary government decisions like the CEO’s under s. 52.1(1) of the Act. The Supreme Court of Canada held that “administrative decisions are always required to consider fundamental values”: Doré v. Barreau du Québec, 2012 SCC 12 [“Doré”], at paras. 35 and 58. More specifically, government decision-makers whose exercises of discretion “engage[] the Charter by limiting its protections” must engage in “[a] proportionate balancing … that gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate”: Loyola High School v. Quebec (Attorney General), 2015 SCC 12 [“Loyola”], at para. 39.

But what is such a “proportionate balancing” supposed to look like? The Supreme Court of Canada has been less than crystal clear on this question. In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para. 14, the Court held that, the decision-maker’s “reasons must be read together with the outcome” to determine “whether the result falls within a range of possible outcomes”. More recently, the Court has held that, where the decision-maker was “alive to the question of the balance to be struck” between a Charter-protected interest and the statutory objectives, reasons may not be required at all; the court can look to the reasons “which could be offered in support of [the] decision” to assess its legality: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, at paras. 55-56. However, where reasons are offered, the reviewing court cannot “ignore th[em] … altogether and substitute its own”: Delta Air Lines Inc. v. Lukács, 2018 SCC 2, at para. 24.

Here, the CEO did offer reasons for his refusal to recommend moving the election date. The court concluded that they were insufficiently attentive to the Charter protected-interests of certain observant Jews, the applicants among them. Further consideration was therefore required — and ordered.

The CEO’s reconsideration

On July 29, 2019, the CEO issued his reconsideration (the “CEO Reconsideration”), in which he once again decided not to recommend moving the election date. This time, however, he went into significantly greater detail in order to justify that conclusion.

The CEO explicitly acknowledged the “limitations” placed on the Charter rights of observant members of the Jewish community resulting from the current election date, and specifically enumerated the rights to freedom of religion, voting rights, and the right to equality as being engaged: CEO Reconsideration, at pp. 2-3.

Next, the CEO went into some detail regarding the scale of planning, organization, and resources deployed in order to facilitate the statutory objectives of the Act. This includes a temporary workforce of 300,000 working in over 16,000 locations across Canada, the fact that extensive work has already been done to secure polling sites, that many of these locations could not confirm their ability to accommodate a date change, and that moving the date would likely cause significant deterioration in accessibility and overall services to voters: CEO Reconsideration, at pp. 3-7.

Thirdly, the CEO outlined a number of ways in which affected individuals could still vote (i.e. by special ballot or on an advance polling date), and set out a specific “action plan” for observant Jewish community voting. This plan is comprised of six steps, including increased staff at advance polls in ridings with a higher Jewish population, the appointment of community relations officers to work with the Jewish community, and outreach and information campaigns for Jewish organizations: CEO Reconsideration, at pp. 7-9.

Finally, in light of the above considerations, the CEO explicitly balanced the applicants’ Charter rights against the statutory objectives. In concluding that he will not recommend moving the date, the CEO noted that “[t]here is no such thing as a perfect election day” and that “Jewish electors will have to vote in one of [the] alternative ways. They nevertheless have a genuine opportunity to participate in the electoral process.” Importantly, the CEO specifically recognized the limitations placed on an observant Jewish candidate, which could not be fully remedied by any of the aforementioned measures. Against this, the CEO balanced the negative impact on accessible voting services across Canada that would result from a date change and, ultimately, decided that the balance weighed against recommending a change: CEO Reconsideration, at pp. 9-11.

Remaining questions

The decision and reconsideration leave a number of unanswered questions:

  • Will the applicants challenge the CEO’s reconsideration? If the applicants, or anyone else impacted by the CEO’s reconsideration, are still dissatisfied, there remains a narrow possibility that a second judicial review might be launched. This is unlikely for at least two reasons. First, section 56.2(5) of the Act provides that the Cabinet has until August 1 to act on a recommendation from the CEO, by making an order moving the election date. Since that date has now passed, it appears that any judicial review could face the additional hurdle of challenging the Act itself (not just the decision of the CEO). This makes any such challenge far less likely to succeed. Second, the CEO Reconsideration is substantially more detailed than any of previous correspondence upon which the applicants’ challenge was based. Therefore, even if imperfect, the Reconsideration is likely to receive far greater deference from a reviewing court: see Doré, supra, at paras. 35, 58; Loyola, supra, at para. 39. This level of detail does, however, raise some additional issues, which leads to our next question.
  • What was the appropriate level of detail for the CEO to provide? The CEO’s reconsideration is 11 pages long, outlines the discretion granted to him as an administrative decision-maker, details the facts and circumstances, and sets out a balancing of Charter rights and statutory obligations. Elections Canada could be seen as setting a standard for itself that will have to be met in future controversies over the scheduling of elections. The Supreme Court of Canada has, in recent years, endorsed considerable deference to administrative decision-makers like the CEO, even when their decisions engage Charter rights (or “values”).To withstand a court’s scrutiny, the CEO’s reasons need only “exhibit justification, transparency and intelligibility within the decision-making process”: Trinity Western, supra, at para. 52 (quotation marks omitted), quoting Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47. In determining what level of detail was called for in these circumstances, it may have been the CEO’s intention to meet this standard, without overshooting it.
  • Did the Charter require the CEO to recommend moving the date of the election? The Federal Court concluded that “[i]t is not the role of this Court to set the election date or to substitute its decision for that of the CEO[]”: Federal Court Reasons, at para. 67. It is not clear how this statement squares with the court’s decision to remand the matter to the CEO. If the failure to recommend moving the election date did “not protect Charter values as fully as possible in light of th[e] statutory objectives” (ibid., at para. 64), but it would not be appropriate for the court to order the CEO to make a recommendation, then what does that mean for the CEO’s reconsideration, which he offered more detailed reasons, but nonetheless refused to recommend moving Election Day? Does the Charter guarantee Orthodox Jews — or anyone else — more than merely additional transparency about why their freedom of religion, right to vote, and equality rights have not won the day? Answering these questions will require further litigation.
  • Was August 1 the appropriate deadline? According to the Federal Court, “Parliament has granted the CEO discretion to make a recommendation for a change to the election date up until August 1”: Federal Court Reasons, at para. 68. This is not accurate. As noted above, the Act provides that Cabinet has until August 1 to act on a recommendation from the CEO, by making an order moving the election date. Had the CEO recommended moving the date on August 1, it is unlikely that Cabinet would have been able to prepare and approve an Order in Council moving the date of the election on the very same day. Should this timing issue arise again in future challenges, it may be necessary for the Federal Court to clarify or correct this statement.

The bottom line

The upshot of the CEO reconsideration is that the election date will not move unless there is a second successful challenge to his decision. Although a further challenge is not completely out of the question, it is highly unlikely given the CEO’s more detailed reasons, combined with the added difficulty of now being past the August 1 statutory deadline.

As a result, Election Day will most likely remain on October 21, 2019. Of course, s. 56(1) of the Act reserves the power of the Governor General (acting on the Prime Minister’s advice) to dissolve Parliament and call a general election at any time.

The precise timing of the election affects other requirements under the Act. The rules that govern election advertising, as well as campaign and third party registration and expenditure limits, are keyed to the “election period”, which the Act defines as “the period beginning with the issue of the writ and ending on polling day”. If you, your organization, or your employees will take part in this fall’s campaign, the CEO’s decision — or potentially the court’s — could affect you.

Our team at McCarthy Tétrault has experience navigating the legal uncertainties that can arise during election campaigns and on Election Day. Please contact Awi Sinha, Adam Goldenberg, or Will Horne with questions or for assistance.

This post is part of our 2019 federal election series. You can access related content here.

Authors