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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Fundamental freedoms - Freedom of thought, belief, opinion and expression - Freedom of expression - Democratic rights - Right to vote and hold elected office

Friday, October 13, 2017 @ 8:30 AM  


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Application by Mitchell calling into question the constitutionality of the special ballot provisions set out in the Newfoundland and Labrador Elections Act (Act). Sections 86 to 86.10 of the Act permitted special ballot voting prior to the deadline for the official nomination of candidates and even before the issuance of the writ of election. The impugned provisions were challenged on the basis that they violated the democratic rights set out in s. 3 of the Canadian Charter of Rights and Freedoms (Charter) and, when read in concert with s. 226.1 of the Act, they violated the freedom of expression guarantee in s. 2(b) of the Charter. Section 226.1 of the Act placed certain restrictions on election advertising. The applicant argued that neither violation was saved by s. 1 of the Charter.

HELD: Application allowed in part. The special ballot provisions violated s. 3 of the Charter but not s. 2(b) of the Charter. The legislative scheme the special ballot provisions created interfered with the right of special ballot voters to play a meaningful role in the electoral process and their related rights to be well informed of the choices when casting their vote. The impugned sections also inappropriately interfered with the right of some candidates to meaningfully participate in the election process. The infringement found was not justifiable under s. 1. The special ballot provisions more than minimally impaired the s. 3 rights. The argument with respect to s. 2(b) of the Charter was problematic because it was, in essence, challenging the constitutionality of s. 226.1 by saying the provision had become an unreasonable restriction on s. 2(b) rights because the special ballot provisions permitted voting during the print and broadcast advertising blackout period. However, the constitutionality of s. 226.1 was not at issue. The applicant’s request for a declaration that sections 86 to 86.10 of the Act were inconsistent with the Charter was granted and the provisions were therefore of no force and effect.

Mitchell v. Jackman, [2017] N.J. No. 324, Newfoundland and Labrador Supreme Court, Trial Division - General Division, September 6, 2017. Digest No. TLD-October92017010