CITATION: The Council of Canadians v. HMQ 2015 ONSC 4940

DIVISIONAL COURT FILE NO.: 369/15

DATE: 20150805

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: THE COUNCIL OF CANADIANS and others v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA

BEFORE: NORDHEIMER J.

COUNSEL: S. Shrybman & L. Century for the applicants

C. Mohr & A. Bourke for the respondent

HEARD at Toronto: written submissions

E N D O R S E M E N T

[1] The applicants seek leave to appeal from the decision of Stinson J. dated July 17, 2015 in which the motion judge declined to grant an interlocutory injunction to suspend the operation of s. 46(3) of the Fair Elections Act, S.C. 2014, c. 12 (“FEA”).[^1] Given the pending Federal election, both the motion for the injunction, and this motion for leave to appeal, have been heard on an expedited basis.[^2]

[2] It is not, in my view, necessary for the purposes of this motion for leave to appeal to set out the background facts in any great detail. It is sufficient to say that, in 2014, Parliament passed the FEA which made a number of changes to the Canada Elections Act, S.C. 2000, c. 9. Principal among those changes, for the purposes of this matter, is that the discretion of the Chief Electoral Officer to authorize voter identification cards (“VICs”) as a valid form of identification to establish a person’s right to vote, was removed. The Chief Electoral Officer still has the discretion to authorize other forms of identification for that purpose.

[3] The applicants have challenged a number of the changes made by the FEA in their underlying application. However, they sought an injunction to suspend the change relating to the VICs in advance of this year’s Federal election on the basis that it would disenfranchise a large number of voters who would not have other forms of identification to prove their right to vote, including homeless people and students.

[4] The motion judge dismissed the request for an injunction. In doing so, he applied the well-established test, for when an injunction should be granted, set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311. In terms of the three elements that comprise that test, the motion judge found that there was a serious issue to be tried. He also found that there would be irreparable harm to voters, if they were improperly disenfranchised. However, the motion judge concluded that the balance of convenience did not favour the granting of an injunction. It is this last finding that is challenged by the applicants and which forms the basis for their application for leave to appeal.

[5] In order to obtain leave to appeal, the applicants must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[6] The applicants submit that they satisfy both of these tests. They say that the decision of the motion judge is in conflict with earlier decisions, including the decision of the Supreme Court of Canada in Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764 and of the Court of Appeal for Ontario in Frank v. Canada (Attorney General) (2014), 2014 ONCA 485, 120 O.R. (3d) 732. They also say that there is good reason to doubt the correctness of the decision as they submit that the motion judge failed to properly consider and apply the evidence that was before him to the issue raised.

[7] The respondent says that the first test is not met because there are no conflicting decisions, as that term is properly understood in the context of the test for leave to appeal. In particular, the respondent submits that any asserted conflict in the cases is not a conflict in principle but, rather, merely reflects the fact that different cases can yield different results. The respondent also submits that there is no reason to doubt the correctness of the decision given that the motion judge applied the proper test, considered the relevant facts, and then exercised his discretion in a particular way.

(a) conflicting decisions

[8] The motion judge gave detailed reasons for his decision. The applicants criticize those reasons, though, on a number of bases. Principal among the criticisms, in terms of the first test for leave to appeal, is that the applicants say that the motion judge found that there was a “rule” in election cases against the granting of injunctive relief. The applicants contend that there is no such “rule” and that the motion judge misdirected himself in finding that there was.

[9] While the motion judge did refer to a “rule” in the course of his decision, on a fair reading of his reasons, it is clear that he did not use that expression in the sense of there being an inviolable directive such as a statutory decree or regulation. Rather, he used the expression in the sense of there being a principle or presumption against granting injunctive relief that would interfere with a duly enacted piece of legislation. The applicants appear to acknowledge that there is such a principle or presumption through their reliance on the decision in Harper. In the course of that decision, the court said, at para. 9:

Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.

[10] On this point, the applicants quarrel with the motion judge’s conclusion that this was not the clearest of cases that would warrant injunctive relief, in the course of which they seek to make a differentiation between the motion judge’ use of the expression “the clearest of cases” and a “clear case” as referred to in Harper. In my view, the distinction between the two expressions, assuming that there is one, is a distinction without a difference.

[11] The applicants also submit that, even if there is such a rule or presumption, the motion judge was entitled to depart from it under the principles established in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. In that case, the Supreme Court of Canada held that trial courts could reconsider settled rulings of higher courts in two situations: (1) where a new legal issue was raised; and (2) where there was a change in the circumstances or evidence that fundamentally shifted the parameters of the debate. Those exceptions do not apply here. The legal issue raised is not “new” in the sense that it is used in that exception. The mere fact that a fresh statutory provision is challenged does not make the legal issue a new one. Also, it is difficult to say that the evidence has fundamentally shifted the parameters of any debate when the evidentiary foundation for the applicants’ challenge is not fully developed.

[12] I agree with the respondent that there is no principled conflict between the decision of the motion judge and the various appellate authorities to which the applicants point. The motion judge analyzed the prevailing principles, applied them to the particular situation that was before him and exercised his discretion in a particular way. That exercise of discretion does not give rise to a conflict in the applicable principles. It merely gives rise to a conflict in the result – something that will invariably occur when discretionary relief is being exercised.

(b) good reason to doubt the correctness

[13] On this part of the test, the moving parties submit that the motion judge did not undertake a proper analysis of the evidence that was before him but, rather, relying on the “rule” that he found to exist, the motion judge simply went directly to the conclusion that the balance of convenience did not favour the granting of injunctive relief.

[14] In my view, the moving parties’ characterization of the motion judge’s reasons, including the assertion that “he did not consider any of the voluminous and largely uncontested evidence of harm asserted by the Applicants”,[^3] is not a fair one. As I earlier mentioned, this motion was heard on an expedited basis and the motion judge’s reasons were delivered, correspondingly, in short order. It is unfair, in those circumstances, to criticize the decision maker for not making fulsome reference to the evidence (even assuming a fulsome reference was required).

[15] The motion judge reiterated the presumption that I have referred to above against granting injunctive relief in such cases. He considered whether the evidence in this case provided an exception to that presumption and found that it did not. He referred to a number of factors in reaching that conclusion including that, regardless of the volume of evidence that was filed on the motion, the fact remained that the evidentiary record was limited. The motion judge also considered the fact that only one provision of the FEA was the subject of the injunction sought but that that section was part of a broader statutory scheme that had been implemented by the FEA. The impact of addressing only one part of that statutory scheme was unknown.

[16] The motion judge also considered the salient point that it was fundamentally problematic to interfere in the overall scheme by which a Federal election is to be conducted essentially “at the last minute” and through the relatively blunt instrument of an injunction. Indeed, the evidence before the motion judge from the Chief Electoral Officer outlined some of the problems that would occur if an injunction was granted, including the impact on the contents of the VICs that have already been printed with a warning that they are not considered to be a form of identification. I note, on this point, that the FEA was assented to on June 16, 2014 and yet this motion for an injunction only came before the court on July 2, 2015 more than a year later and only two months before the deadline set by the Chief Electoral Officer for any change to the forms and procedures for the conduct of the Federal election. It was also only a little more than three months before the actual election is to be held.

[17] Finally, the motion judge considered the fact that it was not clear that the impugned section of the FEA would be found to be constitutionally unsound after it was subject to a full analysis in conjunction with the other provisions of the FEA and the application of s. 1 of the Charter. He then considered that, if the constitutional challenge failed, but he suspended the operation of s. 46(3) for this election, there was a risk of harm that could result through persons voting improperly. The motion judge recognized that there is a balance inherent in the electoral process between ensuring that persons, who are entitled to vote, can vote and ensuring that persons, who are not entitled to vote, do not vote.

[18] Taking all of those factors into account, the motion judge concluded that the balance of convenience did not favour the granting of the injunction. He noted, in the course of his decision, that the applicants were unable to point to any case:

… in which an interlocutory injunction has been granted to stay the implementation of changes to the CEA.[^4]

[19] I cannot find any basis in the motion judge’s analysis to conclude that there is good reason to doubt the correctness of that result, in the circumstances of this case. I note, in that regard, that this is not a case like Frank where the very issue of whether a person even had a right to vote was in question. Here, the issue is only what identification can be required to confirm that a person is entitled to exercise that right. On that issue, the Chief Electoral Officer has a number of different options available in terms of prescribing different forms of identification that can be used for that purpose and which may go a long way to ameliorating any negative effect of eliminating the VIC as one such form. Indeed, the evidence establishes that the Chief Electoral Officer has established a long list of different forms of identification to accomplish that end. Whether the Chief Electoral Officer ought to be able to include the VICs among those methods is, of course, an issue for determination in the main application.

Conclusion

[20] The motion for leave to appeal is dismissed. Given the public interest inherent in this case, I would make no order as to the costs of the motion.

NORDHEIMER J.

DATE: August 5, 2015

[^1]: Council of Canadians v. Canada (Attorney General), [2015] O.J. No. 3793 (S.C.J.) [^2]: The formal writs of election were requested from the Governor General on August 2 for the election to be held on October 19, 2015. [^3]: Moving parties’ factum, para. 60 [^4]: Reasons at para. 84