Voter justice denied as Fair Elections Act legal challenge is delayed

Voter justice denied as Fair Elections Act legal challenge is delayed

“Harper is doing everything in his power to keep people from voting”

by: Obert Madondo  | Aug 10, 2015

The Canadians of Canadians' legal challenge to the Harper government's Fair Elections Act won't be heard until after the 2015 federal election. (Photo: Council of Canadians/Flickr/CC by NC SA 2.0)
The Canadians of Canadians’ legal challenge to the Harper government’s Fair Elections Act won’t be heard until after the 2015 federal election. (Photo: Council of Canadians/Flickr/CC by NC SA 2.0)

Canadians’ legal challenge to the Harper government’s “anti-democratic” Fair Elections Act won’t be heard until after the 2015 federal election.

Last week, the Ontario Superior Court refused to grant the Council of Canadians, the Canadian Federation of Students, and three voters leave to appeal an earlier decision that denied their injunction against key sections of the new law.

It’s an intriguing story. One that will cause many to question whether the courts aren’t protecting the political interests of the Harper government. The Superior Court’s decision is likely to call into question the validity of the October election, especially if candidates win seats with small majorities. For example, during the 2011 federal election, Conservative candidate Ted Opitz “won” the Etobicoke Centre riding with just 26 votes over Liberal incumbent Borys Wrzesnewskyj. The Conservatives won their majority by only 6,201 votes across 14 ridings.

The 2011 election was also marred by allegations of widespread robocalls and other voter suppression methods that prevented scores of Canadians from voting. In 2013, Michael Sona, a lowly Conservative operative, was convicted for his part in the fraud. The Federal Court found that “there was an orchestrated effort to suppress votes during the 2011 election campaign by a person with access to the [Conservative Party’s] CIMS database.”

In 2014, amidst widespread public criticism, the Conservatives rammed the Fair Elections Act or Bill C-23 through parliament. In an open letter highlighting the essence of free and fair elections, 400+ academics demanded the “Orwellian” legislation’s withdrawal.

“The Conservatives’ Unfair Elections Act will bar thousands of Canadians from voting and limit investigations into electoral fraud,” Liberal Leader Justin Trudeau said then, vowing to repeal the legislation if elected Canada’s next prime minister in October.

After Bill C-23 passed in June, 2014, the Council of Canadians teamed up the Canadian Federation of Students and the three voters and announced that they would challenge the legislation in the courts. They compiled over 2,000 pages of “powerful evidence” arguing that the Fair Elections Act’s prohibition of the use of a Voter Information Card as proof of residency would suppress the votes of tens of thousands of qualified voters during the the October election. Most of those who would be disenfranchised, they argued, were students, seniors, the poor and First Nations.

To be more specific, the applicants argued that the Fair Elections Act was anti-democratic because:

  • It makes it more difficult for voters to prove their residence and identity at the polls. Providing the necessary documents showing their current address is a particular problem for highly mobile, younger voters.
  • It ends the vouching system which allows voters to vouch for an elector’s identity even when that elector is on the voter’s list.
  • It places restrictions on Elections Canada’s ability to inform electors about their right to vote and the electoral process.
  • It also strips the Chief Electoral Officer of his authority to appoint, consult, and report to Parliament on the activities the Commissioner of Canada Elections who is responsible for enforcing the act.

That was the gist of the Charter challenge the applicants filed in the Ontario Superior Court last October.

Sections 3 of the Canadian Charter of Rights and Freedoms guarantees democratic rights. It states, “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

At the end of July, the Superior Court heard the applicants’ case, and found that “there was a serious issue to be tried and the legislation would cause irreparable harm to registered electors who are denied the right to vote under these new rules.” Still, the Court denied the applicants’ injunction against the “onerous voter ID restrictions in the Fair Elections Act.”

In response, the Council and friends filed an urgent appeal against the Court’s ruling, insisting that all registered voters should be allowed to use their Voter Information Cards as proof of address on October 19.

Not my problem, Ontario Superior Court Justice Ian Nordheimer ruled last week. In his ruling, the judge pointed out that the applicants’ appeal was “too close” to the October election.

The judge’s ruling aside, the applicants also suggest interference from the Harper government in the case. In their own words:

Garry Neil, Executive Director of the Council of Canadians:  “Timing is everything. The Fair Elections Act was tabled just a year before a fixed election. Our legal challenge went before the courts two months before it went into effect, but the federal government delayed the process every step of the way. In this case, justice delayed is justice denied.”

Maude Barlow, National Chairperson of the Council of Canadians: “You would expect a democratic government to support and encourage democratic participation. Instead, the Harper government’s so-called Fair Elections Act does just the opposite. Harper is doing everything in his power to keep people from voting – so we are going to do everything in our power to make sure they do.”

During last Thursday’s first national leaders debate, hosted by Maclean’s Magazine, NDP Leader Thomas Mulcair accused Harper of “trying to walk away with the next election by jigging the rules” through the Fair Elections Act.


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Obert Madondo is an Ottawa-based progressive blogger, and the founder and editor of The Canadian Progressive. Follow me on Twitter: @Obiemad


2 thoughts on “Voter justice denied as Fair Elections Act legal challenge is delayed

    1. Globe and Mail justice reporter Sean Fine recently reported on how “the judiciary has been remade”. It’s magnificent reporting revealing how Harper has invested enormously appointing or promoting judges more likely to defer to the will of the legislative branch of government. Appointees include individuals who have a “general worldview involving a lack of sympathy for minority causes”. Some had previously lobbied Conservative politicians for promotions to higher courts. Some appointees are firm believers in “originalism” –the conviction that the constitution means what the drafters said it means; that it ought not to be changed. In short, the Conservatives are deliberately weakening the independence of the Canadian judicial system. The piece:

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