Skip to content

The Fair Elections Act and #elxn42: A summary of Council of Canadians v Canada (Attorney General)

By Jennifer Taylor – Research Lawyer

With the federal election just days away, voting is on Canadians’ minds. This will be the first election conducted in accordance with the Fair Elections Act, SC 2014, c 12 [“FEA”] which amended certain provisions of the Canada Elections Act – notably those dealing with voter identification. As a result of the FEA, and as confirmed in the recent Ontario case of Council of Canadians v Canada (Attorney General), 2015 ONSC 4601, voters will notbe allowed to use their Voter Information Cards issued by Elections Canada as proof of their identity or address.

Several groups have launched a broad constitutional challenge to the FEA in the Ontario Superior Court of Justice, arguing in part that the amendments effectively disenfranchise certain groups of voters including “youth, Aboriginals, elderly electors in care facilities, homeless electors and the thousands of electors who will move during the election period,” contrary to section 3 of the Charter (para 8).

They moved for an interlocutory injunction to “suspend the operation” of section 46(3) of the FEA during the 2015 election (para 10). That provision prohibits the Chief Electoral Officer from accepting a Voter Information Card as proof of a voter’s identity and address (paras 7-10; 34). It amends theCanada Elections Act as follows:

(3) Subsection 143(2.1) of the Act is replaced by the following:

(2.1) The Chief Electoral Officer may authorize types of identification for the purposes of paragraph (2)(b). For greater certainty, any document — other than a notice of confirmation of registration sent under section 95 or 102— regardless of who issued the document, may be authorized. [emphasis added]

The Chief Electoral officer gave evidence that he would allow voters to use their Voter Information Cards as proof of identification, if the injunction were granted (para 62). But in its July decision, the Court refused to grant the injunction. And in early August, Justice Nordheimer of the Divisional Court denied leave to appeal: The Council of Canadians v HMQ, 2015 ONSC 4940.

Justice Stinson in his injunction decision provided a good overview of how Elections Canada and the Chief Electoral Officer run federal elections, and helpfully reviewed the background to the Fair Elections Act.

This post focuses on how Justice Stinson applied the traditional three-part test for an interlocutory injunction:

1) Whether there is a serious issue to be tried: Justice Stinson accepted that the applicants’ Charter challenge raised several serious issues regarding whether the FEA’s “stricter identification requirements” infringed section 3, which protects the right to vote (see especially paras 55 and 73). He acknowledged that any infringements of section 3 could still be justifiable under section 1, but that could only be decided at a full trial on the merits.

2) Whether the applicants would suffer irreparable harm if the injunction were not granted: The applicants also succeeded at this step of the test. If the injunction was refused but the provisions were eventually found to be unconstitutional, the voters who had been “improperly disenfranchised” would have lost their right to vote in the 2015 election and obviously could never get it back (paras 76-81).

3) Where the balance of (in)convenience lies: This was the determinative part of the test. There were two main reasons why the balance of convenience was with the Attorney General:

i. The government was entitled to the benefit of the doubt. The principles of injunctions, as applied in constitutional cases, required the Court to “assume” that the government intended the Fair Elections Act to “promote the public interest.” The applicants—as private citizens—were unable to rebut that presumption by proving “that the suspension of the legislation would itself provide a public benefit” (see paras 49-53).

ii. There is a general principle that interlocutory relief is not appropriate in elections cases when there is an election pending (see paras 85-100). Interestingly, the leading case is the Supreme Court of Canada’s decision in Harper v Canada (Attorney General), 2000 SCC 57, where the respondent unsuccessfully asking the Court to affirm an injunction was none other than Stephen Harper, whose government was responsible for implementing the Fair Elections Act.

On the particular facts of Council of Canadians, Justice Stinson found the balance of convenience favoured leaving the entire FEA regime in place; he said it would be inappropriate to cherry-pick the provisions that would apply during this election, without considering the scheme as a whole (para 94).

The Divisional Court refused leave to appeal from Justice Stinson’s decision, noting that the issue here was not whether someone had the right to vote or not, but rather “what identification can be required to confirm that a person is entitled to exercise that right” (para 19). There was no “good reason to doubt the correctness” of Justice Stinson’s reasons (para 19).

So the Fair Elections Act will be in action on Monday October 19 when Canadians go to the polls to decide #elxn42. The fate of the provisions for future elections remains to be determined, once the full constitutional hearing gets underway.

SHARE

Archive

Search Archive


Search
Generic filters

 
 

Changes to job classifications and immigration impacts

November 23, 2022

By Brittany Trafford and Michiko Gartshore On November 16th, 2022 the Federal Government switched to the 2021 National Occupational Classification (NOC) structure from the prior 2016 version. The NOC is Canada’s national system used to…

Read More

Nova Scotia: Canada’s emerging immigration hub

November 17, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

Bill C-27 – Canada’s proposed Artificial Intelligence and Data Act

November 16, 2022

Kevin Landry, Charlotte Henderson, and James Pinchak The governance of Artificial Intelligence (AI) is entering a new era since the Canadian Government first announced a digital charter in 2019 as part of a larger-scale overhaul…

Read More

Discovery: Atlantic Education & the Law – Issue 11

November 14, 2022

We are pleased to present the eleventh issue of Discovery, our very own legal publication targeted to educational institutions in Atlantic Canada. With a new academic year well underway, the Atlantic Region is finally seeing…

Read More

The Winds of Change (Part 5): Atlantic Canada poised to benefit from clean energy tax credits

November 10, 2022

By Jim Cruikshank, Graham Haynes, and Dave Randell On November 3, 2022, the Honourable Chrystia Freeland delivered the Federal Government’s Fall Economic Statement (“FES”).  The FES included a number of tax related announcements, including further…

Read More

“Constructive Taking”: Consequences for municipalities from the Supreme Court of Canada decision in Annapolis Group Inc. v. Halifax Regional Municipality

November 10, 2022

By Stephen Penney, Joe Thorne, and Giles Ayers A new decision from the Supreme Court of Canada, Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (“Annapolis”), has changed the law of constructive expropriation across the…

Read More

Attract & Retain: Nova Scotia taps foreign healthcare workers to fill labour shortages

November 10, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The rise of remote work and Canadian immigration considerations

November 3, 2022

As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market…

Read More

The future of express entry: Targeted draws to meet Canada’s economic needs

November 2, 2022

By Sara Espinal Henao Since its initial launch in January 2015, Express Entry has been a pillar of Canada’s immigration system. Recently passed amendments to the Immigration and Refugee Protection Act (IRPA) promise to drive…

Read More

Filling labour gaps with foreign workers: What Canadian employers need to know

October 28, 2022

By Brittany Trafford It is no secret that employers in Atlantic Canada are struggling to fill labour gaps. In June 2019 the Atlantic Canada Opportunities Agency (ACOA) published a report[1] indicating that the overall labour…

Read More

Search Archive


Search
Generic filters

Scroll To Top