Very Canadian election-day story

On Tuesday the Federal Court issued a finicky ruling that concerns the “fixed” statutory date of the upcoming federal election. The Canada Elections Act contains an algorithm for establishing the date, and everyone was expecting it to fall on the target day, Oct. 21. In 2019, however, this date coincides with a holy day observed by Orthodox Jews called Shemini Atzeret.

It has been observed that this is a fairly obscure observance within mainstream Canadian Judaism; the day falls at the end of the weeklong festival of Sukkot (a harvest period formerly called Succoth or the Feast of Tabernacles in English texts). In Orthodox Jewish law the close of Sukkot is accompanied by the restrictions on “labour,” including exertion or errands of any nature, that are imposed during the ordinary sabbath.

This is a significant inconvenience for Chani Aryeh-Bain, who is the Conservative nominee in Toronto’s Eglinton-Lawrence riding. Aryeh-Bain is Orthodox, and Eglinton-Lawrence is thought to have 5,000 or so Orthodox voters. Jewish feast days demonstrably cripple voter turnout within this community. But how, you may be wondering, can the date of an election be judicially reviewable? How did we get to the point at which there is talk of adjusting an election date for the calendar of a particular faith — which, given the glittering galactic diversity of multicultural Canada, may seem to portend myriad procedural headaches and quarrels?

It turns out to be the usual, for Canada: slipshod law-making plus aggressive judges. When the federal government adopted fixed election dates, the Elections Act was rewritten, as I say, to include an algorithm for determining the date. But lest this calculation lead on some occasion to obvious absurdity or disaster, the chief electoral officer was given an escape mechanism. The Elections Act says, vaguely, that if a scheduled election date is “in conflict with a day of cultural or religious significance,” the CEO can decide to bump it forward.

Strangely, the lawyers for the chief electoral officer seem to have been ignorant of, or blind to, the relevant portion of the text. They tried to tell Justice Ann Marie McDonald that the CEO simply has no discretion with regard to the election date. One imagines the poor judge at her desk, gazing at the Act with increasing vexation.

We intentionally departed from a system in which the prime minister just goes ahead and instructs the Governor General to fire the starting gun on an election. This involved making the determination of an election date an administrative decision. An implication of this is that the courts can now review that decision for reasonableness. The governor-in-council

as advised by the PM is still the final arbiter, and can overrule the CEO, but it is easy to see why a Conservative candidate would prefer this way of doing things. It will make for a good “Trudeau Refuses To Accommodate Jewish Beliefs Despite Court Ruling” headline, if it comes to that.

Justice McDonald decided not to shift the election date on her own. She merely told the chief electoral officer that he had to provide Aryeh-Bain with better reasons for not shifting it than “I’m not allowed to do so, even though the law says, in an extremely unambiguous way, that I am allowed and in fact required to.”

It is hard to see what alternative McDonald had, but if you are wondering how she dealt with the possible Flying Spaghetti Monster problem — that every date in the year is bound to be sacred to some group or other — the answer is that she didn’t. Aryeh-Bain and her fellow applicant Ira Walfish made a Charter-based case against the CEO’s stubbornness. The Charter explicitly guarantees citizens the right to vote and “to be qualified for membership” in the Commons and other legislatures. These basic rights have, by the usual

COULD END UP ... A THREAT TO THE ENTIRE SCHEME OF

FIXED ELECTION

DATES.

process of interpretive creativity, long since been inflated by courts into a general right to participate in elections and the accompanying campaigns. I suppose no one would complain about that, as far as it goes.

But, er, how far does it go? The caselaw on electoral participation rights that McDonald cites has largely involved issues like electoral deposits or voter eligibility for expatriates. She mentions Figueroa vs. Canada, a leading case in which the Supreme Court threw out a rule requiring political parties to have a minimum slate of 50 candidates in a general election. These are cases in which the state was actively impeding the exercise of democratic rights; they are not situations in which someone’s own doctrine created difficulties for themselves.

It seems bizarre to imagine that Canadian election law would have to defer to Orthodox Jewish practice, and not much less bizarre to imagine that every general election might involve a rationally irresolvable contest between the claims of 17 different faiths. But Justice McDonald has tacitly accepted the notion, perhaps because the somnolent legal staff of the chief electoral officer did not do a good job of forcing her to confront it. And certainly Parliament did not. This could end up becoming a threat to the entire scheme of fixed election dates, which would be fine by me, but may not be to some of you.

COLBY COSH