If this thing goes to court...

Election '21 court case would be large, complex, and focused on three key points.

The court case(s) coming out of Election 2021 in Newfoundland and Labrador will be large, complicated, and completed unprecedented in Canadian legal and political history.

The closest thing in Newfoundland and Labrador history might be the controverted election of 1893.  In that one, parties fought legal challenges in 16 of 36 seats in what had been a hotly contested election.  Historian James Hiller notes that the 1893 election was only the second one fought under a series of reforms in the late ‘80s that had widened the franchise and introduced the secret ballot to Newfoundland elections.

“Politicians (and the electorate) were adjusting to a new state of affairs,” Hiller wrote “Overt influence was far harder to exert (or prove) with a secret ballot, whether by merchant, cleric, or politician; the electorate was much larger; and the rules of the game had become more strict.”

That isn’t the case in Newfoundland and Labrador in 2021, but the intricate legal action that is almost surely going to come will have the most serious political and legal implications not just for Newfoundland and Labrador but for the whole country. 

The people involved will also be working under great time pressure.  We may not know the election results until close to the end of the fiscal year on March 31.  Since the government can only function until the end of July before it can no longer legally spend money,  any legal action will have to finish by then.

The judge in the Election 2021 case will focus on three key questions:

  1. What did Chaulk do?

  2. What was Chaulk supposed to do, legally?

  3. How do those two things match up?

In that second bit, the judge will want to find out what the constitution and statutes set out as Chaulk’s authority, responsibility, and obligation.

In the third bit,  the judge will look to see if there are any parts of the constitution or the appropriate statutes that allow Chaulk to act as he did.

To help get a handle on this, look at Hogan v. Careen and Hickey.  This was a challenge to the outcome of the 1993 election in one district.  The court found that deputy returning officers and poll clerks allowed people to vote without administering an oath or properly documenting them in the rules set out in the Election Act.  The vote was close and the crucial point for the judges in their decision was that the number of improperly documented voters was large enough that it could have changed the outcome of the very close vote if they had not voted.

The key section from that case is in the Elections Act, 1991 and it will likely be a key part of any legal challenges to the 2021 election. It was section 112 of the old Act (linked above) that applied in Hogan v. Careen and Hickey and is section 123 of the 1991 law.

The section allows that an irregularity is acceptable if, in the judge’s opinion:

  1. it follows the principles laid down in the Act, and

  2. the irregularity did not materially affect the result of the election.

An irregularity could be anything, including Chaulk’s decisions.

The judge will also want to know if Chaulk had any constitutional obligations.

Here we are talking about Section 3 of the Charter of Rights and Freedoms, which guarantees Canadians he right to vote.

Part of this would involve Chaulk’s comment that he doesn’t care about turn-out or that his only concern was offering people some chance to vote.  It could also involve the comments made by the Seniors’ advocate and Chaulk’s failure to consult with her at any point prior to the election.  There is also here the question of whether or not Chaulk ignored Indigenous people, for example, many of whom do not speak English as a first language.

The right here is not merely to cast a vote.  It is much broader.

The federal justice department’s online description of Section 3 puts it this way:

“The purpose of section 3 is to protect the right of each citizen to play a meaningful role in the electoral process.1  Participation in the electoral process has an intrinsic value independent of its impact upon the actual outcome of elections.2 Denial of the right to vote affects one’s dignity and sense of self-worth.3

The recent special ballots case centred on this issue of whether or not people could play a “meaningful role” in the election given the rules of the Elections Act, 1991 and the way Chaulk applied them.

And given that the decision in that case involved the propriety of early voting in an election, this could be an issue in the Election 2021 legal challenges. Bruce Chaulk’s only attempt to address the potential for an outbreak of COVID seems to have been his decision to allow early voting immediately after the close of nominations.  That’s important as well because in the past couple of elections, the date for nominations to close has been moved forward from its usual place much loser to polling day.

The two things  - nomination day and start of special balloting - seem to be connected. Moving the nomination deadline appears merely to facilitate the earliest possible day to cast a ballot while still nodding at Justice Butler’s decision in the special ballots case.  But does this sort of advance balloting in large number very early still offend her comments about the right of people to be properly informed of candidates and party platforms before voting?

While we’ve broken them out here, many of these issues cross over one another.  That’s what makes them complicated.  And there are many things that happened that may be nothing alone but that add up to much greater problems in total.

The courts will shy away from the political decisions here – like calling the election now - but there is a possibility the judges will offer an opinion on how politicians made decisions. That will be interesting to watch for.

There is always a possibility we won’t see a legal challenge, by the way. 

But that is a topic for another day.

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1

Frank v. Canada, 2019 SCC 1, at paras. 26-27; Opitz v. Wrzesnewskyj, 2012 SCC 55, at paragraph 28; Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, at paragraphs 25-26 and 30; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, at paragraphs 69-70

2

Figueroa, supra, at paragraph 29; Daoust v. Québec (Directeur général des élections), 2011 QCCA 1634 at paragraph 46, leave to appeal to SCC refused [2012] S.C.C.A. No. 490

3

Frank, supra, at para. 82