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An Ontario judge has ruled that, although the controversial new Fair Elections Act may violate the Canadian Charter of Rights and Freedoms, it will apply in this fall’s federal election.

The Act makes a number of changes to voting procedures, including tighter restrictions on voter identification and proof of address. The Chief Electoral Officer can no longer accept the Voter Information Cards sent to voters’ homes as proof of address or identity, and voters are no longer permitted to “vouch” for other voters’ identity. In short, people without the required documents will now face additional hurdles that could even prevent them from voting altogether.

The federal government passed the Act in 2014 amid accusations that the new law would disproportionately affect certain groups of voters, including Aboriginal voters, who are less likely to have access to the type of identification documents and proof of address that are now required in order to vote.

The Council of Canadians, the Canadian Federation of Students and a handful of interested citizens have challenged the Act in the Ontario Superior Court, arguing that it violates the right to vote protected by the Charter. Applications like this one take time, and the case will not be decided before the federal election, which must be held by 19 October of this year. Therefore, the applicants requested an interlocutory (temporary) injunction to prevent some of the new rules from coming into effect until the case has been determined on its merits. If their request is granted, the Chief Electoral Officer will have the authority to accept Voter Information Cards as proof of identity or address in this year’s election.

In his ruling Council of Canadians v. Canada (Attorney General), Justice Stinson of the Ontario Superior Court of Justice agreed that some people may be deprived of their right to vote in this year’s election, and there would be no way to restore those rights retroactively if the legislation is later found to be unconstitutional.

However, he refused the applicants’ request for an injunction. He believed that all the evidence should be heard before interfering with an election law that had been passed by Parliament. He also expressed concerns that last-minute changes to the election process could threaten the orderly and fair administration of the upcoming election, and that it would be unfair to invalidate the new rule without considering the government’s justification for introducing it in the first place.

This decision means that voters need to be aware of the new requirements for proving their identity and address at the polls – some may even be turned away at the voting station if they don’t have the proper documents.

It’s important to remember that this case is not a final ruling on whether the Fair Elections Act is constitutional.

That decision – expected to be addressed at a later date – will focus primarily on section 3 of the Charter, which protects the right of every Canadian citizen to play a meaningful role in selecting their federal, provincial and territorial representatives:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

A similar challenge was considered in 2010, after the Canada Elections Act was amended to require voters to prove their identity and address. In the 2010 decision Henry v. Canada (Attorney General) (which was later affirmed by the B.C. Court of Appeal), the court found that requiring voters to prove their identity and address did in fact interfere with their section 3 voting rights, but was a reasonable limit on voting rights and served to combat the serious problem of voter fraud.

The Fair Elections Act arguably places even greater barriers in front of citizens who are attempting to exercise their voting rights. Will the court consider these barriers to be “reasonable” measures like the previous rules? That remains to be seen.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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