Canada’s Federal Court on Tuesday ordered the chief electoral officer to review his decision to not recommend a change in the scheduled federal election date, October 21, which coincides with the Jewish holiday of Shmini Atzeret, the CBC reported.
Orthodox Jewish candidate Chani Aryeh-Bain, who is running for the Conservatives in the Toronto-area riding of Eglinton-Lawrence, and Ira Walfish, an Orthodox Jewish political activist, said Elections Canada's Stéphane Perrault did not properly consider their rights under the Charter of Rights and Freedoms.
"... This judicial review is granted as the overall decision of the CEO does not demonstrate the hallmarks of transparency, intelligibility and justification, as it is not possible to determine if he undertook the necessary proportionate balancing between the applicant's charter rights and the exercise of his statutory duty," says the Federal Court ruling.
Shemini Atzeret begins on October 20 and ends on October 22. Aryeh-Bain argued that during the holiday, observant Orthodox Jews must refrain from a number of activities — including voting and campaigning — and cannot ask others to work for them.
According to the judgment, the October 12 advance polling day conflicts with the Sabbath, while the October 14 advance polling day coincides with the holiday of Sukkot.
Aryeh-Bain said that, aside from preventing her from participating on voting day itself, the current federal election date will negatively affect her campaign. Eglinton-Lawrence has about 5,000 Orthodox Jewish voters and in the last three federal elections it was decided by 2,000 to 4,000 votes, noted the CBC.
The chief electoral officer does not choose the election date and cannot change it once it has been set, but can recommend to cabinet that the election date be moved.
Perrault wrote to Aryeh-Bain in May saying that he was made aware of the issue through the Centre for Israel and Jewish Affairs (CIJA) as early as August 2018 and assured it that steps were being taken to ensure voter accessibility.
The CEO's efforts were focused on advance polling and special ballot options. No consideration appears to have been given to recommending a date change.
B'nai Brith Canada, which was an intervener in the case, argued that holding a federal election on a religious holiday infringes on the democratic rights of Canadians and undermines the democratic process.
Tuesday’s judgment supported those claims and criticized Perrault's decision, saying he did not adequately consider how the election date affected a date of religious significance and how that might infringe upon voters' and candidates' rights under the Charter of Rights.
The judgment says Perrault must reconsider his decision in a way that "reflects a proportionate balancing of the Charter rights with the statutory mandate." According to the Canada Elections Act, Perrault has until August 1 to make a date change recommendation to cabinet in order to leave enough time for the election date to be moved.
Shimon Koffler Fogel, president of CIJA, said he respects Perrault's decision but would keep working to ensure "every Jewish voter can cast their ballot."
"We respect the democratic and judicial process that has led to today's ruling. Changing the date at this stage entails considerable logistical and financial implications," Fogel said.
"We will respect the chief electoral officer's decision and will continue working closely with Elections Canada to support its efforts to maximize voter participation and inclusion of the Jewish community – which is a cornerstone of democracy," he added.
Michael Mostyn, chief executive officer of B’nai Brith Canada, called the decision “a massive victory for the Canadian Jewish community and the cause of human rights.”
“The right to vote and run for office is one of the most fundamental rights in Canadian society, and the court was right to find that Elections Canada must give them proper consideration,” he said in a statement.