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 Sinha, Adam 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...