The Harper government was in its second minority parliament, and had survived the effort of Liberal and NDP leaders to form a coalition government, but couldn’t outlive an opposition vote the day before it planned to table the federal budget in early 2011. The Prime Minister was faced with a Spring election, and, as is still the law in Canada, had to propose an election date to the Governor-General.
The timing of the government’s defeat brought Good Friday, Easter Sunday and Easter Monday into focus as possible advance polls and Election Day.
Lobbying, letters, editorials, mainstream media interviews and a young social media inundated the Prime Minister’s team with objections. The election was scheduled instead for the week after Easter. Stephen Harper formed a majority government.
Fast forward to 2018. Justin Trudeau is Prime Minister. Before Parliament breaks for the summer, Trudeau’s office and Canada’s Elections Commissioner are advised by Canada’s leading Jewish organizations, B’nai Brith and the Centre for Israel and Jewish Affairs (CIJA), that the proposed election date for 2019 will conflict with the Jewish high holiday of Shemini Atzeret at the conclusion of the Feast of Tabernacles (Sukkot). Observant Jews will be unable to vote on Election Day or several of the advance polls if this timing proceeds. At around the same time four Jewish MPs, two Liberal and two Conservative, also write to the Prime Minister about the conflict.
CIJA begins, almost immediately, to work with Elections Canada on alternative voting opportunities for the several ridings that will be affected if the Prime Minister does not move the date of the election. Remember, the Prime Minister has the final say on the date for Election Day.
B’nai Brith and the members of parliament write the Prime Minister again early in the new year, 2019.
The Canada Elections Act authorizes the Elections Commissioner to recommend a date, but the final decision rests with the Prime Minister. The Prime Minister has a majority in Canada’s 42nd Parliament, and plenty of time, so could easily amend the Act to accommodate this identified infringement of rights under the Canadian Charter of Rights and Freedoms. “The Party of the Charter,” as Justin Trudeau likes to refer to the political party he leads, takes no action.
B’nai Brith goes to court on behalf of the Jewish community in an effort to secure plan A, a changed date. One week will do. CIJA continues to work with Elections Canada on plan B. This is wise.
The federal court refuses to make the decision to move the date, instead sending the decision back to the Elections Commissioner and Prime Minister on the basis that the Elections Commissioner failed to consider implications of the decision to recommend October 21st on Charter rights.
The Charter is part of Canada’s Constitution. Its express purpose is to prohibit government from infringing the rights and freedoms of Canadians “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Supreme Court of Canada has found that such infringement requires that there be a pressing and substantial purpose for the violation and that there be minimal impairment of the right as well as the requirement being proportionate to attaining its intended effect.
The Prime Minister can call an election earlier than the scheduled date on 35 days’ notice. The Prime Minister has had a year to take action on an election that is still three months away, if Election Day proceeds as scheduled in the Act. It’s the Prime Minister’s decision. He has until Thursday, August 1 to make it under the Canada Elections Act. He says he won’t interfere with the recommendation of the Election Commissioner, but has not yet formally announced a final decision.
Most people will think about the inconvenience of moving the Election Day, but give little consideration to the 35 day notice requirement for an earlier date as the minimum preparation period for Elections Canada, a period of time that has been complied with in the past without problem. It certainly worked in 2011.
Many will think it a minor inconvenience that a small percentage of Canadians spread across a half dozen ridings* will need to find another way to vote, or lose the opportunity on this one occassion. But, that’s precisely the protection the Charter is intended to provide for all of us. Protection from the tyranny of convenience for the majority.
Section 2 (a) of the Charter guarantees the freedom of religion of these identifiable communities of Canadians. Section 3 of the Charter guarantees the equal voting rights of all Canadians.
From the political perspective, there are four to six seats in Canada’s 43rd parliament that may be dependent on the Jewish vote, and there are candidates whose religious beliefs will prevent them from campaigning for several days leading up to October 21st, as well as from efforts to get out the vote on Election Day, if it’s not moved.
It may seem a minor inconvenience to those who do not share the faith of this particular community of Canadians. Perhaps, you may be unconcerned about their capacity to vote (or maybe disinterested in voting yourself), but all Canadians will be witnesses to this thin-edge-of-the-wedge opening the door to a dangerous compromise of both religious freedom and voting rights if the Prime Minister continues to exercise the option of taking no action in support of the Charter he claims to defend.
*While there are six ridings (to date) with Jewish candidates considered potential electoral victors, it is estimated that Orthodox Jews living in 36 of Canada’s 338 ridings will be impacted if Election Day remains October 21st.