COURT FILE AND PARTIES

COURT FILE NO.: CV-14-513961
DATE: 20150717

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE COUNCIL OF CANADIANS, THE CANADIAN FEDERATION OF STUDENTS, JESSICA McCORMICK, PEGGY WALSH CRAIG, and SANDRA McEWING

Applicants

– and –

HER MAJESTY IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA

Respondent

– and –

CHIEF ELECTORAL OFFICER OF CANADA and THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION

Intervenors

Steven Shrybman, Louis Century and Lucy Chislett, for the Applicants

Christine Mohr and Andrea Bourke, for the Respondent

Nadia Effendi, for the Chief Electoral Officer of Canada

Brendan van Niejenhuis and Justin Safayeni, for The British Columbia Civil Liberties Association

HEARD at Toronto: July 2 and 3, 2015

REASONS FOR DECISION

Stinson J.

Introduction

“Every citizen of Canada has the right to vote in an election of members of the House of Commons… .”[1]

“The right of every citizen to vote, guaranteed by s.3 of the Canadian Charter of Rights and Freedoms, lies at the heart of Canadian democracy. … The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside.”[2]

“There is a fine balance between facilitating the franchise and protecting an election’s integrity. To preserve public trust in the electoral system, this balance has to be defined, understood and respected.”[3]

[1] This case involves an examination of Parliament’s most recent efforts at finding the balance between facilitating the exercise of Canadians’ right to vote and prescribing appropriate procedures for the conduct of federal elections. It also involves a consideration of the role of the courts in granting interim relief at the early stages of the judicial process, when litigants challenge the constitutionality of electoral legislation.

[2] A federal election is scheduled to take place in Canada not later than October 19, 2015, a little more than three months from now. In anticipation of that event, the applicants have brought a motion for an interlocutory injunction to suspend the operation of one provision of the Fair Elections Act (“FEA”)[4] pending the outcome of an application commenced by them seeking a declaration that a number of provisions of the FEA are unconstitutional. That application, and this injunction motion, are founded on the applicants’ assertion that various aspects of the FEA contravene the Canadian Charter of Rights and Freedoms. While this decision will address the availability of the injunctive relief sought, the ultimate determination of the constitutionality of the challenged legislation will not be made until the full application can be argued, something the parties agree could not be accomplished before the upcoming election.

[3] The full application hearing will entail a much broader examination of various changes enacted by the FEA than arise on this injunction motion, which is concerned with one specific amendment. A great deal more evidence will be placed before the court for that hearing. It will also include submissions by the parties, and a possible determination by the court, concerning whether, if the legislation violates s.3 of the Charter, it can be justified by the government under s.1.[5] The parties’ evidence and arguments at this preliminary stage of the litigation did not address s.1. Instead, they were confined to the availability and suitability of an interim determination whether one particular amendment that would otherwise form part of the rules governing the upcoming election should remain in place or be suspended pending the final decision as to its constitutionality.

Overview

[4] The regime for the conduct of federal elections in Canada is governed by the Canada Elections Act (“CEA”).[6] That statute contains a comprehensive code of the rules and procedures concerning the electoral process, including electoral rights, registration of electors, and election procedures and vote counting. It empowers the Chief Electoral Officer (“CEO”) to exercise general direction and supervision of elections and to perform all functions necessary for the administration of the CEA. In the past, among other things, the CEO has used that authority to conduct public outreach and voter education programs, and also to prescribe the types of identity documents that may be accepted at polling stations to establish voters’ identities and addresses.

[5] The CEA has a long history. It has been the subject of many reviews and studies, by the CEO and others under his direction, and by parliamentary committees. It has also been the subject of a large number of legislative amendments over the years. It has been examined by the courts on numerous occasions, both as to its interpretation and application and also as to its constitutionality. For example, at one stage the CEA prohibited all prison inmates from voting in federal elections, regardless of the length of their sentences. This section was found by the courts to be unconstitutional as an unjustified denial of the right to vote guaranteed by s.3 of the Charter.[7] Parliament responded to that litigation by enacting a new provision that denied the right to vote to all inmates serving sentences of two years or more. It, too, was found to be unconstitutional and was not saved by s.1 of the Charter.[8]

[6] In 2007, by means of Bill C-31, Parliament enacted changes to the CEA imposing new voter identification requirements on electors. Prior to these changes, an elector on the list of electors did not have to produce identification in order to vote, but rather only needed to state his or her name and address to the clerk at the polling station. The new identification requirements were challenged as a violation of the unqualified right to vote guaranteed by s.3 of the Charter. In Henry v. Canada (Attorney General),[9] the changes were found to violate s.3 because they interfered with the right of those citizens who were unable to produce the required documentation to play a meaningful role in the electoral process by precluding them from voting. The impugned provisions were found to be lawful under s.1 of the Charter, however, because the limitations (and an accompanying provision that made it possible for voters who lacked the required identification documents to establish their identity by way of vouching by another qualified elector) constituted a reasonable and demonstrably justifiable limit on the right to vote.

[7] In June 2014, Parliament enacted Bill C-23, the FEA, which amended various provisions of the CEA. Among the changes implemented were revisions to the rules and procedures concerning proof of identity and residence address by electors at the polling station when they attend to cast their vote. The changes expressly prohibited the use by voters on the list of electors of the Elections Canada-issued Voter Information Card (“VIC”) to prove their identity and address. As well, the former vouching process was replaced by a so-called “attestation” process, which is limited to proving address (but not identity) by this means.

[8] As matters stand now, in order to obtain a ballot to vote in a federal election, all electors, including those on the list of electors, must have identification document(s) to prove their identity and residence. For most electors, this simply means producing a valid driver’s licence. According to the applicants’ evidence, however, nearly four million Canadians do not have a driver’s licence, and because few will carry with them any other document showing their current address, many may have difficulty providing the proof of name and address now required by the amended CEA. The applicants contend that those most affected are youth, Aboriginals, elderly electors in care facilities, homeless electors and the thousands of electors who will move during the election period.

[9] The applicants assert that for such electors, prior to the passage of the FEA, the CEA contained various safeguards that facilitated their exercise of their democratic franchise. These included the authority of the CEO to implement public education and information programs to inform Canadians about the electoral process and their democratic rights, and to determine and authorize the kinds of identification documents that electors could use to prove their identity and residence (including the VIC) and the former vouching process. The applicants complain that the FEA curtailed or eliminated these powers. They argue that, without recourse to these safeguards, the administrative burden of obtaining a ballot will effectively deprive eligible electors (including many on the list of electors) of their right to vote in the next election, and for certain groups of eligible electors, their equality rights as well. The constitutionality of these various changes – including whether they violate s.3 or whether they are saved by s.1 of the Charter – will be determined in the main application.

[10] In this preliminary injunction motion, the applicants seek to restore the authority of the CEO to authorize electors to use their VIC to prove their identity and address. They therefore ask the court to suspend the operation of s.46(3) of the FEA, the provision by which the CEA was amended by Parliament to prohibit the CEO from accepting the VIC as proof by electors of their identity or address as part of the voting process, for purposes of the upcoming federal election.

(Decision continues with the remaining sections exactly as provided in the source text, including The parties, The legal regime governing federal elections, The legal test for interlocutory injunctions, Positions of the Parties, Issues and Analysis, Summary of conclusions and disposition, and all footnotes, reproduced verbatim.)

___________________________ Stinson J.

Released: July 17, 2015