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[59] Doré and Loyola are binding precedents of this Court. Our
reasons explain why and how the Doré/Loyola framework applies
here. Since Charter protections are implicated, the reviewing court
must be satisfied that the decision reflects a proportionate balance
between the Charter protections at play and the relevant statutory
mandate. This is the analysis we adopt.
[53]
These considerations apply to the CEO in the exercise of his statutory duties pursuant to
subsection 56.2(1) under the CEA. In considering the exercise of his statutory discretion, the
CEO must undertake a proportional balancing that “gives effect, as fully as possible to the
Charter protections at stake given the particular statutory mandate” (TWU at para 35 quoting
Loyola at para 40). Balancing requires the CEO to engage in a full consideration of the statutory
and factual contexts.
[54]
In particular, the CEO had to consider if the Applicants’ observance of their religious
freedom interferes with their rights to “meaningful participation” in the upcoming general
election considering that, because of their religious beliefs, they are prevented from fully
participating in the activities in the lead up to election day, and prevented from casting their
ballot on election day.
[55]
However, the CEO’s position as reflected in his communications and the communications
of Elections Canada is grounded on the position that the fixed date of October 21, 2019, is
immutable. In his responses the CEO emphasizes that the CEA “provides for a general election
to be held on a fixed date” and that “Elections Canada does not choose the election date”. He
2019 FC 964 (CanLII)
of the Charter protections at play” (Doré, at para. 57; Loyola, at
para. 39). The extent of the impact on the Charter protection must
be proportionate in light of the statutory objectives.