Fair Elections Act could cause irreparable harm, but court refuses to grant an injunction
UPDATE – August 5, 2015: The Divisional Court has denied the Applicants’ request for leave (permission) to appeal the Superior Court’s decision. As a result, voters will not be able to use a voter identification card (with other identification) to establish their residence in the upcoming federal election. The decision is Read the Divisional Court’s decision.
The application challenging the so-called Fair Elections Act will proceed in due course.
July 17, 2015: The Ontario Superior Court of Justice has refused to grant an injunction to stop the implementation of a provision of the so-called Fair Elections Act (FEA). The provision prevent Canada’s Chief Electoral Officer from deciding to allow voters to use their voter information cards as proof of address.
The Council of Canadians, the Canadian Federation of Students and individual applicants have challenged this and other provisions of the FEA on the basis that they will disenfranchise tens of thousands of eligible voters, particularly students, the homeless, First Nations people and the elderly. This news story sets out some of the arguments.
Since the application was unlikely to be heard prior to the next general federal election in October, the applicants sought an injunction to prevent the operation of the impugned provisions until the application is determined.
The Court found that the applicants had met the first two steps of the test for obtaining an injunction. It held that there was a serious issue to be tried and, significantly, that if no injunction was granted irreparable harm would result if the case is ultimately decided in favour of the applicants. In this regard, the Court found that the following conclusion in a previous case applied equally here:
Once the election has passed, the constitutional right to vote in that election will be lost forever. If the election is decided by one or very few votes and if the judgment is affirmed on appeal, the stay requested by the Attorney General will have improperly disenfranchised voters whose vote could have changed the result of the election. That would constitute irreparable harm …
However, the Court concluded that the applicants had not met the third requirement for granting an injunction. At this stage, the Court considers whether the “balance of convenience” favours granting an injunction. A court is required to balance all relevant factors and make an assessment as to which of the parties would suffer greater harm from the granting or refusal of an injunction pending a decision on the merits.
In this case, the Court held that it was bound by a “rule” against granting an injunction in an election case on the basis of a constitutional challenge to electoral legislation because the constitutionality of electoral legislation should be presumed. Granting an injunction would amount to making a finding on the merits of the case, the Court said, because the application will not be heard and determined before the election in October.
In the applicants’ view, there is no such “rule”. Essentially, in holding that it was bound by a “rule”, the Court concluded that there was nothing to balance under the balance of convenience test, and that an injunction can never be granted in an election case – no matter how egregious the constitutional breach might be.
Had the Court considered the evidence in the balance of convenience, it would have had to consider, among other things, that the government’s claim that the amendments are necessary to prevent voter fraud was not supported by any evidence that allowing people to use voter information cards to prove residence is associated with voter fraud.
Claims by a Conservative Party MP in the House of Commons that he had personally witnessed such voter fraud were revealed as false and he was forced to retract the claim.
On the other hand, the applicants adduced evidence showing that the impugned provisions were likely to result in thousands of voters being disenfranchised and that the government’s own independent expert consultant had advocated for the expansion of the use of the voter identification card.
While there is no evidence that voter fraud is a problem in Canadian elections, it is worth noting that voter suppression has been a problem. The Federal Court found that there was a concerted voter suppression campaign during the 2011 federal election, when voters who did not support the Conservative Party received telephone calls purporting to be from Elections Canada and told that their polling stations had been changed. The Federal Court concluded that the voter contact information used to carry it out that campaign likely came from the Conservative Party’s own database. The Court also found that the Conservative Party “made little effort to assist with the investigation” and that “the respondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits.” The Conservative Party has never indicated who accessed its database and the perpetrators of this voter suppression campaign remain unknown.
The Applicants are seeking leave to appeal the decision. The Applicants’ factum sets out the mistakes they allege were made by the motions judge.