Accommodation of Religious Holidays in the Federal Election

Any planning of a public calendar can be challenging in a diverse and multicultural society. The Law Society of Ontario, for example, learned this the hard way when they scheduled the Barrister exam this year on June 4, 2019, which coincided with Eid celebrations of Muslims across the province.

The planning of a Federal election is a more extensive endeavour, not only in the national scope of the exercise, but in the more significant limitations imposed by statute. The Canada Elections Act, states,

Date of General Election

Powers of Governor General preserved

 …

Election dates

(2) …each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.

This year, that would place the federal election on October 21, 2019.

The problem is that the date coincides with a Jewish holiday, Shemini Atzeret (שְׁמִינִי עֲצֶרֶת), which is referenced in context of the tail end of 7-day holiday of Sukkot סֻכּוֹת)) in Leviticus 23:36 and Numbers 29:35. Both references are quite clear that “prohibited work” (מְלֶאכֶת עֲבֹדָה) should not be done on this day, which is typically interpreted to include all types of work except possibly food preparation. The standard Jewish calendar is lunisolar, meaning that the dates of these holidays shift every single year, albeit in a manner that is calculated well in advance.

Of course the general election day is not the only time that Canadians can cast their vote, specifically to account for these types of circumstances, as well as the inconvenience to do work, family, or other responsibilities. The Act allows for voting by advance polls under Part 10, and special ballot under Part 11.

The advance polls are scheduled on the 10th, 9th, 8th and 7th days before election day, from 9 a.m. to 9 p.m. Unfortunately, these advance polls also coincide with the Jewish Sabbath on Saturday, October 12, 2019, and with the first day of Sukkot on Monday, October 14, 2019. Even the last day to obtain the special ballot, October 15, 2019, falls on the second day of Sukkot.

All of these pose some logistical problems for observant Jewish voters for this upcoming federal election, but they are not prevented entirely from voting, as they may also vote by mail through the special ballot provisions. Where this becomes more challenging is where an Orthodox Jewish candidate is running in the federal election, and claims there have been a violation of her Charter rights and that of her constituents.

This judicial review was heard recently by the Federal Court in Aryeh-Bain v. Canada, where the Applicant swore that 20% of her riding in Eglinton-Lawrence is Jewish, and includes at least 5,000 Orthodox Jewish voters. However, the 2016 Census indicates there are 5,775 people who identify as Jewish in this riding out of the total residents of 114,395, which would more closely approximate about 5% of the population, which is still significantly higher than the national average. Of course all of these figures could be underrepresented or outdated.

The Census lists “Jewish” as an ethnicity of “other European Origins,” and Jewish people globally are far more diverse than this narrow categorization. One explanation has been that the 28 examples of most common ethnic ancestries excluded “Jewish” as one of the examples under Question 17 of the long-form census for the first time. Respondents who follow the Jewish faith but hold some other ethnic identity based on national origin would have been unlikely to respond as Jewish on this question without further prompting.

The non-response rate for both the short-form and the long-form census questionnaires are lower than the provincial averages for this riding, suggesting the data has some validity. However, the stark decrease of 56% of people across Canada reporting a Jewish identity between 2011 and 2016 has been highly contested by the Jewish community, especially for those only identify as Jewish ethnically, and not religiously. In any case, these latter exclusions from Canadian statistics are unlikely to be adversely impacted by the scheduling of the election on a religious holiday.

Because the Applicant, as well as some of her staff and many of her supporters, could not work on the election day, she requested that the Chief Electoral Officer (CEO) of Elections Canada utilize the powers under subsection 56.2(4), which allows for another day for the general election if needed,

Alternate day

 (1) If the Chief Electoral Officer is of the opinion that a Monday that would otherwise be polling day under subsection 56.1(2) is not suitable for that purpose, including by reason of its being in conflict with a day of cultural or religious significance or a provincial or municipal election, the Chief Electoral Officer may choose another day in accordance with subsection (4) and shall recommend to the Governor in Council that polling day be that other day.

Limitation

(4) The alternate day must be either the Tuesday immediately following the Monday that would otherwise be polling day or the Monday of the following week.
[emphasis added]

The problem with the selection under the section of the Tuesday immediately following the scheduled day, October 22, 2019, is that it is also a Jewish holiday. This is the second day of Shemini Atzeret, though this can differ slightly in Sephardic (i.e., non-European) and Israeli traditions, where it is referred to as the holiday of Simchat Torah (שִׂמְחַת תּוֹרָה), and both days can be celebrated on the second day. To confuse things further, some Reform Jews (i.e. non-Orthodox) outside of Israel also celebrate Shemini Atzeret on this second day.

To avoid this conflict with the second day of Shemini Atzeret, the alternative day sought by the Applicant under the section was therefore the following Monday, October 28, 2019. In the alternative, the Applicant sought a writ of mandamus to force the CEO to change the general election date to October 28, 2019.

As you can imagine, organizing elections is a rather complicated business, including reserving venues and staff for polling stations across the country. It consists of time and money in ensuring that these resources are reserved for that single day, as well as lessor resources for the advance polls scheduled prior to this. These are staff that will largely work for this election alone, and are not full-time government staff, and the spaces reserved are almost always in the community, meaning that they have to ensure the availability of these facilities that number over 150,000 places. The Act limits where polling stations can be placed, encouraging the use of public schools or other public places.

Applying the Loyola-Doré framework to the CEO’s decision, the court applied an analysis of whether it was reasonable by proportionate balancing s. 2(a), 3, and 15 Charter protections with the statutory mandate under the Act. Although noting that a decision maker may implicitly consider and incorporate Charter considerations without explicitly mentioning them [para 62], they found that the decision was unreasonable,

[64] On this judicial review, it is not the role of this Court to consider an appropriate date for the federal election. Rather this Court is only concerned with whether the CEO properly balanced the statutory objectives with Charter rights and values. Where, as here, the record is silent on how the CEO considered and balanced the Charter issues, it is impossible to for the Court to determine if the balancing was proportionate (Loyola at para 68). Simply put, the record does not disclose the necessary balancing of rights and freedoms in relation to the statutory objectives. The result is a disproportionate outcome that does not protect Charter values as fully as possible in light of those statutory objectives. This is contrary to the framework outlined in Doré and Loyola, and refined in TWU.

[65] Therefore, by failing to address and balance the specific Charter issues raised by the Applicants, the CEO’s decision is not justifiable, transparent, and intelligible in keeping with Dunsmuir (at para 47).

This has been popularly reported as the court finding that the decision itself was unreasonable, a more accurate reading is that the CEO failed to explicitly demonstrate a balancing. The background of the communication between the parties is therefore relevant to understanding the court’s conclusion.

The CEO was first formally alerted to this issue on August 22, 2018, the Centre for Israel and Jewish Affairs (CIJA). The response was that the fixed election date is determined by statute, and that their operations would be adjusted to account for religious holidays, presumably referring to advance polls. The Applicant immediately contacted the CEO around these same concerns on April 18, 2019, soon after winning the nomination on April 14, 2019.

The CEO’s position with these parties was that the office’s power under s. 56.2 is to make a recommendation to Cabinet, and not unilaterally change the date due to cultural or religious considerations. However, if these recommendations are accepted by the Governor in Council, they can be proclaimed all the way up to August 1 of the election year, meaning there was still time to contemplate and implement this change in law. The failure to make a recommendation, or even to consider whether to make a recommendation, was what the court determined to be unreasonable.

More significantly, the CEO noted that the mandate of Elections Canada is to operate in an “accessible, transparent, and fair to all participants [emphasis added],” and made special note of the statutory requirement under s. 121 to ensure that all polling stations are accessible, wherever possible. Shifting the general election date to October 28, 2019 would also interfere with the Nunavut municipal elections.

Where the CEO failed the most in acting reasonably is in the correspondence with the all interested parties. Although there was contemplation of working with the Jewish community, and to increase the number of advance polls in the riding, there was no indication of any consideration for changing the date to October 28, 2019, or how it may impact the Applicant’s Charter rights,

[57] The record does not disclose that the CEO gave proper, or any true consideration, to this discretion. The record does not indicate how or if the CEO “balanced” these considerations against the Charter values of Orthodox Jewish voters and candidates to ensure their rights to “meaningful participation” are respected. 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.

[60] Accordingly, the CEO did not have to arrive at a decision that perfectly balances Charter values against his statutory mandate. What the CEO was required to do was consider the exercise of his discretion as “an option or avenue reasonably open” to him that would reduce the impact on the Applicants’ Charter rights and still allow the CEO to further the relevant statutory objectives. This is the contextual assessment and the balancing exercise that was to be undertaken by the CEO and that the Court looks for when assessing the reasonableness of the resulting decision. As noted however, there is a lack of evidence on the record to demonstrate that the CEO undertook the requisite proportionate balancing of the Charter infringements with the objectives of the CEA.

The central values here were the s. 3 Charter considerations, with the court citing the recent Supreme Court of Canada decision in Frank v Canada (Attorney General) as a core tenant of our democracy. The court also cited Opitz v Wrzesnewskyj to point out that this is not a free-standing right guaranteeing unrestricted participation in elections. As I stated in my commentary on Frank, our history is one of progressive enfranchisement, but not one of universal enfranchisement.

The court rejected the Applicant’s request for mandamus, finding the criteria described in Apotex Inc. v. Canada as not being met.

In addition to the logistical, monetary, and even human rights considerations in relations to accessibility, there are other concerns with changing the date to October 28, 2019. This date corresponds with religious or cultural holidays in other traditions under some observances, such as Mahavir Nirvan-Diwali in Jainism, Diwali in Hinduism, the 200th anniversary (Bicentennial) of the birth of the Bab in the Bahai Faith, and the Gujarat New Year on Shukla Paksha Pratipada in month of Kartik. A proclamation of a different day may just result in an application for judicial review by another religious or cultural group finding a different conflict.

Even the relief sought by the Applicant would presumably still be an imperfect one, as the as the advance polling days for this alternative day on October 28, 2019 would still fall on the 5th-7th days of Sukkot from October 18-20, as well as the Sabbath on October 19, and Shemini Atzeret again on October 21, 2019 as the last day of advance polls. In other words, even in the relief sought by the Applicant there would be some interference with religious and democratic rights under the election schedule for both her and observant adherents across Canada.

Given this context, the CEO should be able to demonstrate that changing the election date from October 21 to October 28, 2019 has been properly considered, balancing all of the appropriate interests, and is not reasonable under the circumstances. What is needed is evidence on the record of this requisite balancing, specifically referring to the Charter interests of the Applicant and other voting citizens. A statement regarding what course of action will be undertaken is expected shortly.

All efforts should be made to schedule all events in a way to avoid conflict with religious holidays, and this is especially true for the scheduling of elections. However, the state should be especially cautious about favouring one religious minority group over another, or one candidate over all others. A critical appraisal can be made in regards to the subtle and apparent favouritism already provided to Western Christianity (as there are many other types of Christians outside this context with different holidays), but that is a broader discussion beyond the scheduling of the federal election.

The election must go on.

Comments

  1. The Chief Electoral Officer released his decision the day after this post went up,

    For all of the reasons given above, I will not be recommending to the Governor in Council an alternate day for the 2019 general election.

    I am committed to continuing to work with the Jewish community to maximize voting options within the existing calendar in ways that are convenient and consistent with their religious beliefs.

    Also worth noting is that Census Canada has also announced they will be revising the way they collect information related to ethnicity. The Star reports,

    A newly released review by Statistics Canada says the census could have identified between 270,000 and 298,000 Jews in Canada in 2016 if response patterns remained steady, instead of the almost 144,000 captured in the population count.

    The review says the decline is most likely linked to the removal of Jewish from a list of examples that goes along with the question about ethnic and cultural origins.

    The paper concludes that the reason why there was a decrease is likely due to multiple ethnic origins, primarily Russian and Polish,

    Why were people less likely to respond “Jewish” to the ethnic origin question in 2016?

    Comparing the same person’s response in 2011 with their response in 2016 demonstrates how response mobility was a major factor in the decrease in Jewish responses to the ethnic origin question in 2016. The data show how many people added a Jewish response in 2016 among those who did not respond “Jewish” in 2011, and how many people who reported Jewish in 2011 did not do so in 2016. The result of people who did not report Jewish in 2011, but did so in 2016 was an upward pressure of 15.5% to the 2011 totals for the Jewish ethnic origin. At the same time, however, 70.7% of people who reported Jewish in 2011 did not do so in 2016. Combining these two numbers results in a net response mobility of -55.3% for the Jewish ethnic origin.

    Changing answers from census to census is expected for the ethnic origin question for a number of reasons. First, the question allows multiple responses, and therefore someone may choose, for example, to report four ethnic origins one census but only three the next. This would seem to be a minor change to the respondent, but it is still a different response. Second, the ethnic origin question is a reflection of the respondent’s perception of their ancestors’ ethnicity at the time of the census, and is therefore subject to changes in the social environment, changes in individual understanding of the concept and changes in awareness of family history.Note Generally these changes in responses from cycle to cycle cancel each other out and do not have a major impact on overall trends. For example, from 2011 to 2016, the English ethnic origin had 34.5% more people adding English in 2016 and 35.2% removing English in 2016. This resulted in a small net mobility of -0.7% for English.