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Page: 23 am not satisfied that the necessary circumstances arise in this case to warrant the issuance of a [68] I note that Parliament has granted the CEO discretion to make a recommendation for a change to the election date up until August 1 (CEA subsection 56.2(5)). Although the August 1 deadline is fast approaching, legal counsel for the CEO indicated that he is prepared to take whatever action is necessary as a result of the Court’s decision. Conclusion [69] The Application for judicial review will be granted and the matter is sent back to the CEO for a redetermination that reflects a proportionate balancing of the Charter rights with the statutory mandate. [70] The Applicants do not seek costs in the form of legal fees but ask to be reimbursed for disbursements. Accordingly, the Applicants are entitled to reimbursement for their reasonable disbursements. 2019 FC 964 (CanLII) mandamus order.

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Aryeh Bain v. Chief Electoral Officer

Judgment

Question Presented: Whether setting election day as a Jewish holiday violates the right to vote?

Alleged Acts: The applicants in this case are devote Orthodox Jew political candidates who argue that the Chief Electoral Officer abused his discretion in recommending modifying the election date, October 21, 2019, when said date fell on the Jewish High Holiday of Shemini Atzeret. Orthodox observance of the holiday includes refraining from both voting and campaigning. Thus, both Orthodox Jew voters and candidates will be have to refrain from voting and/or campaigning. Further, the advanced polling days also both fall on Jewish holidays.

Procedural history: Ms. Aryeh-Bain won the nomination and immediately informed the Chief Electoral Officer (CEO) of the date’s conflict and possible Charter violations. Several other individuals from the Jewish community indicating that the election date would interfere with the Jewish communities ability to exercise their voting rights. On June 18, 2019 the Court permitted the case be heard on an expedited basis.

Summary: Section 56.2 states that the CEO may recommend change of the polling day if it conflicts with cultural or political beliefs. Further, the Charter also states that candidates and voters must have the ability to “meaningfully participate.” The CEO’s failure to address the Charter concerns and weigh the rights of individuals leave the court unable to address the strength of the CEO’s argument. Thus, the CEO’s determination is not justifiable, transparent, and intelligible.

Conclusion: It is not the role of the Court to set a new election date. The case is sent back to the CEO to make a determination that effectively and fairly balances the Charter rights of the Jewish community.

Legal Issue(s)

Elections as a Fundamental Right
EMB Operation

Region: Americas

Country: Canada

Language of Decision

English

Court: Appellate Court

Election Type: General

Date of decision: Jun 26, 2019

Geolocation

Latitude: 45.42663839

Longitude: -75.81085498

: Geolocation

Primary Documents

Aryeh-Bain v. Chief Electoral Officer.pdf
English
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Election Judgments - IFES

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Aryeh Bain v. Chief Electoral Officer

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