A court has ruled that Canada’s chief electoral officer must reconsider his refusal to move the date of the coming federal election because it clashes with the Jewish holiday of Shemini Atzeret.
In a decision on July 23, the Federal Court ordered chief electoral officer Stéphane Perrault to review his earlier decision not to move the date of the election – Oct. 21 – after he was lobbied by observant Jews who pointed out they cannot drive, campaign or vote that day, the final day of the High Holiday season and one of the four times a year Yizkor is recited.
At a daylong court hearing last week, lawyers for Chani Aryeh-Bain, the Conservative candidate in the Toronto riding of Eglinton-Lawrence, and Ira Walfish, an activist and voter who lives in York Centre riding, argued that Perrault’s refusal to move the date to Oct. 28 was unreasonable and that, as observant Jews, their rights, and those of 75,000 Orthodox Jews in Canada, were diminished.
Lawyers for the chief electoral officer countered that there are other options available to religious Jews, including advance polls, special ballots and early voting on many post-secondary campuses across Canada.
However, the court also heard that the four days of advance polls – Oct. 11-14 – clash with Shabbat and Sukkot, resulting in significantly reduced hours for observant Jews to vote.
Perrault was given a deadline of Aug. 1 to review his decision and strike a balance, though he does not have the authority to move the election date, but can only recommend the cabinet to do so.
Justice Ann Marie McDonald’s decision said there was a “lack of evidence” that Perrault balanced Orthodox Jews’ rights with election laws.
In granting a judicial review of the chief electoral officer’s decision, the court found that Perrault “does not demonstrate the hallmarks of transparency, intelligibility and justification, as it is not possible to determine if he undertook the necessary proportionate balancing between the applicants’ charter rights and the exercise of his statutory duty.”
McDonald found that the record “does not indicate how or if the chief electoral officer balanced these considerations against the charter values of Orthodox Jewish voters and candidates to ensure their rights to ‘meaningful participation’ are respected.”
She found that Perrault focused on advance polling and special ballot options. “No consideration appears to have been given to recommending a date change.”
Elections Canada “will act in a timely manner in accordance with the directions provided by the court,” said a statement from Perrault’s office. He said he “will make public my final decision as soon as possible.”
Arguments before the court centred on the right of Jews to vote and to campaign. Aryeh-Bain said that, aside from preventing her from getting out the vote on the crucial day of balloting, the current federal election date would negatively affect her campaign. Eglinton-Lawrence has about 5,000 Orthodox Jewish voters, and in the last three federal elections, the riding was decided by 2,000 to 4,000 votes.
“Now that Justice Macdonald has ruled, I trust the (chief electoral officer) will take into account the democratic rights of 75,000 Canadian citizens and will also be cognizant of their right to religious equality under the Charter of Rights and Freedoms,” said Aryeh-Bain in an email to The CJN.
In a written statement to The CJN, Walfish urged the chief electoral officer “to do the right thing.”
“We want nothing more than to participate in the electoral process on the same footing with all Canadians and not be placed in a position where we have to choose between our religion and exercising our democratic rights.”
B’nai Brith, which intervened in the case to argue for moving the election date, called the court judgment “a massive victory for the Canadian Jewish community and the cause of human rights.”
“The right to vote and run for office is one of the most fundamental rights in Canadian society, and the court was right to find that Elections Canada must give them proper consideration,” B’nai Brith said in a statement.
“We urge the chief electoral officer to act quickly and make the right decision.”
B’nai Brith pointed out that another Conservative candidate, David Tordjman in Quebec’s Mount Royal riding, would also be disadvantaged by holding the election on Shemini Atzeret, though he was not part of the court action.
The Centre for Israel and Jewish Affairs (CIJA) said that changing the date of the election at this stage “entails considerable logistical and financial implications.” CIJA CEO Shimon Koffler Fogel said Elections Canada has taken “significant measures, in consultation with the Jewish community, to ensure every Jewish voter can cast their ballot.”
But CIJA said it will respect the chief electoral officer’s decision and “will continue working closely with Elections Canada to support its efforts to maximize voter participation and inclusion of the Jewish community – which is a cornerstone of democracy.”
CIJA first alerted the chief electoral officer to the clash with Shemini Atzeret a year ago. Correspondence introduced at the hearing showed that CIJA asked the chief electoral officer to give “special consideration to the situation,” though it did not ask for the date of the election to be changed.
But when CIJA learned there would be an Orthodox Jewish candidate running in the 2019 election, it then asked the chief electoral officer to give “urgent consideration” to moving the election date to the following week.
Members of Parliament representing sizable Jewish populations, including Liberal MPs Michael Levitt, Anthony Housefather and Marco Mendicino – Aryeh-Bain’s opponent in Eglinton-Lawrence – as well as Peter Kent, the Conservative MP for Thornhill, also contacted Perrault to request accommodations for observant Jewish voters.
Since 2007, Canada’s fixed election law has mandated that national elections be held on the third Monday in October in the fourth calendar year following the previous election. However, the law says the chief electoral officer may choose another day if the fixed date is “in conflict with a day of cultural or religious significance.”
Earlier this year, Quebec election officials apologized for the difficulties many Jewish voters faced in last fall’s provincial vote, which also fell on Shemini Atzeret.
The conflict caused voter turnout in D’Arcy-McGee, the most heavily Jewish riding in Quebec, to plunge from 72 per cent in a previous election, to 47 per cent, according to one analysis.
The 2008 federal election clashed with the first day of Sukkot. Advance polls were held a week before that date.
Ontario’s provincial election in 2007 also coincided with Shemini Atzeret, resulting in voting day being pushed back six days.