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ELECTIONS - Election officials and officers - Duties - Powers

Thursday, September 12, 2019 @ 6:27 AM  


Lexis Advance® Quicklaw®
Application by Aryeh-Bain and Walfish, Orthodox Jewish Canadians, for judicial review of the decision of the Chief Electoral Officer (CEO) who refused to exercise his discretion to recommend a change in the date of the federal general election scheduled for October 21, 2019. The election date coincided with the Jewish High Holiday of Shemini Atzeret. During the holiday, Orthodox observance involved refraining from several activities including voting and campaigning. Two advanced polling days also conflicted with Jewish holidays. Aryeh-Bain was a candidate in the election. The CEO indicated to the applicants that the date was immutable.

HELD: Application allowed. The overall decision of the CEO did not demonstrate the hallmarks of transparency, intelligibility and justification. It was not possible to determine if he undertook the necessary proportionate balancing between the applicants’ Charter rights and the exercise of his statutory duty. The record did not disclose whether he gave proper consideration to his discretion granted pursuant to s. 56.2(1) of the Canada Election Act. The CEO’s reasons for pressing forward with the fixed date focused on operational concerns and did not truly consider the option of another date, which was a power within his statutory mandate. The matter was remitted back to the CEO for reconsideration. Mandamus was not an appropriate remedy as it was not the role of the court to set the election date or substitute its decision for the CEO’s decision.

Aryeh-Bain v. Canada (Chief Electoral Officer), [2019] F.C.J. No. 861, Federal Court, A.M. McDonald J., July 26, 2019. Digest No. TLD-September92019011