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Government taken to court over federal election date

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A ballot box (Pixabay photo)

Two observant Jews are taking Canada’s top election official to court in an effort to move the date of the upcoming federal vote because it conflicts with a Jewish holiday.

Chani Aryeh-Bain (Facebook photo)

Chani Aryeh-Bain, the Conservative candidate in the Toronto-area riding of Eglinton-Lawrence, and Ira Walfish, a community activist who lives in the York Centre riding, have filed an application in Federal Court to shift the voting day from Oct. 21, which falls on Shemini Atzeret, to Oct. 28.

The application claims that Chief Electoral Officer Stéphane Perrault’s refusal to recommend moving the election date is unreasonable and discriminates against observant Jews, who are prevented from voting on Oct. 21.

“To observant Jews, the holy day of Shemini Atzeret is a day of great religious significance,” the 10-page application states. On that day, religious Jews are prohibited from driving to polling stations or marking a ballot. As well, they may not campaign or encourage other Jews to vote, the court action states.

“This has significant impact on the applicants, as well as the other observant Jews in Canada,” the court document claims.

The advance polls, which are scheduled to take place Oct. 11-14, are also presenting challenges. Oct. 11, a Friday, “is the beginning of the Jewish Sabbath, which means that similar restrictions for religiously observant Jewish people will apply” until the next evening.

Sukkot, which involves the same prohibitions, begins at sundown on Oct. 13 and continues through the final advance polling day of Oct. 14.

“Thus, of the four days provided as advanced polling dates, observant Jews will not be able to vote on two of them,” according to the filing.

And since the last date for observant Jews to vote is Oct. 13, “these voters are forced to exercise their voting rights without the benefit of any information or developments that might become available from the evening of Sunday, Oct. 13, up to and including … Oct. 21.”

As an observant Jewish candidate, the filing claims, Aryeh-Bain “will suffer significant prejudice to her campaign. She will not be able to campaign on election day. She will not be able to instruct others to campaign on her behalf. She will also be prohibited from encouraging other Jews to vote for her on election day or on two of the four advance polling dates.”

The application says both Aryeh-Bain and Walfish wrote to Perrault asking that he press for the election to be moved. In his message, Walfish pointed out that the last week of an election campaign is “a critical time,” and it is “discriminatory to tell over 75,000 voters that they cannot vote on election day because of religious observance.”

In early May, Aryeh-Bain received a reply, in which Perrault did not agree to recommend that the election be moved to accommodate observant Jews. No reasons were given. The court action claims that Perrault exercised his discretion “unreasonably,” because he failed to balance the Canada Elections Act with the religious freedoms outlined in the Charter of Rights.

Elections Canada spokesperson Ghislain Desjardins told The CJN that it would be “inappropriate” to comment, given that the matter is before the courts.

However, The Canadian Press reported on June 10 that the chief electoral officer was not ready to recommend changing the date “this close to the start of the election.” CP cited a statement calling the timing of election day and Shemini Atzeret “unfortunate.”

“The chief electoral officer has instructed returning officers in ridings with large Jewish population to reach out to members of the community, to better determine what their needs are,” Desjardins said.

“We are also conducting outreach to targeted national and local media outlets, to convey information about voting options among Jewish communities.”

In an email to The CJN in late March, Desjardins outlined other options for observant voters, saying they can cast ballots at any Elections Canada office from the time the election is called, until Oct. 15.

If voting by mail, special ballots can be applied for until Oct. 15 and can be received until Oct. 21, Desjardins added.

READ: CIJA WARNS THAT NEXT FEDERAL ELECTION CONFLICTS WITH JEWISH HOLIDAY

Both York Centre and Eglinton-Lawrence are represented by Liberals who defeated Jewish Conservative incumbents in the last election.

The 2016 census found that 5.5 per cent of residents in York Centre listed “Jewish” as their ethnicity, while the 2011 National Household Survey (NHS) found that some 14 per cent of the riding’s residents were ethnically Jewish.

In Eglinton-Lawrence, the numbers were about five per cent ethnically Jewish in the 2016 census and 16 per cent in the 2011 NHS.

In a statement, B’nai Brith Canada CEO Michael Mostyn said that the chief electoral officer has the discretion to shift the date of an election to avoid “a day of cultural or religious significance,” but “has inexplicably failed to take that entirely logical step.”

Earlier this year, Quebec election officials apologized for the difficulties many Jewish voters faced in last fall’s provincial election, 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 to 44 per cent, Mostyn said.

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 clashed with Shemini Atzeret, and voting day was changed as a result.

B’nai Brith said it raised the matter with Perrault in April and is considering intervening in the court challenge.

Also in April, York Centre MP Michael Levitt wrote to Perrault saying the timing of the election “poses a significant challenge for religiously observant Jewish Canadians, in that it dramatically restricts their ability to vote in this year’s general election and fully participate in our democracy.”

Walfish said he hopes the case will be expedited.