Direct Democracy Ends Up in Court

A provincial election is currently scheduled in Ontario for June 2, 2022. The process for this date is set under the Election Act, where the the Lieutenant Governor in Council proclaims a date for an election on a Wednesday.

Although this date was was generally anticipated, there are often a number of legal issues that emerge prior, during and following an election. In this election, just days after the election date was proclaimed, an individual sought to reserve the name Direct Democracy Party of Canada with Elections Ontario.

The process for registration is governed by s. 10 of the Election Finances Act, and is a legal prerequisite for accepting financial contributions. The Chief Electoral Officer, who is also governed by this Act, rejected the name under s. 10(5), which states,

Name of political party

(5) The Chief Electoral Officer shall not register a political party if,

(a) its name includes the word “independent” or “indépendant” in any form; or

(b) in his or her opinion, the resemblance between the name or abbreviation of the name of the party and the name, abbreviation of the name or nickname of another political party or political organization that is active anywhere in Canada is so close that confusion is likely.

The Chief Electoral Officer also adopted guidelines on these provision on April 30, 2022, which state,

  1. The Chief Electoral Officer will determine whether or not the name and abbreviation are acceptable for registration based on the following:
    1. The proposed name and abbreviation must not contain the word ‘Independent’;
    2. The proposed name and abbreviation must not be similar to another political party or entity in Canada;
    3. The proposed name and abbreviation must not be abusive or offensive; and
    4. An individual must not make multiple reservations of names and abbreviations.
  2. An acceptable name and abbreviation will be reserved for a year from the date of the Chief Electoral Officer’s decision.

The problem is that there is already a party in Ontario with a very similar name, the None of the Above Direct Democracy Party (NOTA), which was founded in 2014. After gaining 4,247 votes in 2014, they increased their votes to 16,191 across the province. There are 25 parties registered in Ontario in total for the 2022 provincial election, almost all of them failing to gain a seat in previous elections.

The President of the party challenged this decision under s.2(1)2 of the Judicial Review Procedure Act in Dickson v. Essensa, with the court allowing the application. The self-represented applicant sought a reconsideration, and submitted three alternative proposed names, including the Direct Democracy Party of Canada, all of which were rejected.

The Election Finances Act stipulates how the Chief Electoral Officer must respond to an application,

Registration by Chief Electoral Officer

(4) On receiving an application for registration of a political party, the Chief Electoral Officer shall,

(a) examine the application and determine if the party can be registered;

(b) if the party can be registered, enter it in the register of political parties and so inform the party;

(c) if the party cannot be registered, so inform the party, with written reasons for the determination.
[emphasis added]

The Chief Electoral Officer admitted there was no reasons provided, and mistakenly believed they were not required to do so. While the court did not opine on the reasonableness of the impugned decisions, they quashed them to be remitted back to the Chief Electoral Officer to provide reasons. The failure to provide reasons was procedurally unfair.

The court noted that the the guidelines indicate that an individual must not make multiple reservations, but it was unclear whether an attempt to seek alternative proposals for registration of one name under tight deadlines was the same as multiple reservation of names.

The court directed the Chief Electoral Officer to decide requests to register the alternative names, with reasons for any decision not to register one of the names.

While name of these names may ever appear on the ballot, the process was ensured to be fair and transparent through judicial review. Direct democracy, at least in this instance, was found in court.

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