Court hears challenge over conflict of fall federal election date and Jewish high holiday

On Shemini Atzeret, orthodox Jews forbidden from doing pretty much anything a busy candidate or engaged voter would want to do on election day

Nationalpost.com
July 17, 2019
Adrian Humphreys

On election day, the most important date of this fall’s federal campaign, Chani Aryeh-Bain, a Conservative candidate in Toronto, will not be able to call supporters, open her campaign office, send emails or run the crucial get-out-the-vote ground game.

“Her opponents will be busy knocking on doors, emailing people, texting them, doing whatever they can to get people to the polls,” Yael Bienenstock, one of Aryeh-Bain’s lawyers, said in court Tuesday.

“Ms. Bain won’t be able to do any of that. Her entire campaign will be silent. The lights will literally be off.”

The current election date of Oct. 21 falls on a Jewish high holiday, although a more obscure one called Shemini Atzeret. Nonetheless, for Canada’s estimated 75,000 orthodox Jews, it’s a significant impediment; they are to refrain from writing, travelling, using phones and pretty much anything else a busy candidate or engaged voter would want to do on election day.

Aryeh-Bain, running in the Toronto riding of Eglinton-Lawrence, and Ira Walfish, a Jewish voter in Toronto, are asking the Federal Court of Canada to order the Chief Electoral Officer, who heads Elections Canada, to push the election date back a week.

“The stakes are high,” said Colin Feasby, representing B’nai Brith Canada, a Jewish advocacy group that was granted intervener status in the case.

“At its heart, this is a case of what it means to count in Canadian society. Holding the federal election on a date where a religious minority cannot vote by reason of their beliefs sends a message to that community that it does not count,” Feasby said.

“More troubling in the context of historical oppression of Jews, it sends a message to the broader Canadian society that this minority community and their beliefs do not count and their democratic rights are not worthy of protection.”

Elections Canada was accused in court of dismissing voting rights to save money, reduce workload and to retain its arrangements already made with schools and school boards that host many of the election day polling stations.

Despite letters of complaint and requests from Jewish organizations, voters and three Members of Parliament from both the Liberal and Conservative parties -- including Marco Mendocino, the Liberal MP who Aryeh-Bain hopes to unseat -- Chief Electoral Officer Stéphane Perrault has declined to change the date.

Lawyers for Elections Canada dismissed accusations that the concerns of Jewish voters have been ignored or that the decision to keep the election date was made without regard to the Charter rights of voters.

The concern “didn’t fall on deaf ears,” said Ewa Krajewska, a lawyer for Elections Canada.

“He is being mindful and put a plan in place to protect those Charter rights. He is taking active steps to mitigate the risks.”

Instead, she said, Perrault is working with the Jewish community to inform voters of alternatives to election day voting, such as the use of special ballots -- often used by Canadian Forces members posted abroad and prison inmates -- and adding staff for advance voting in communities with large Jewish populations.

“There is no such thing as a perfect election and there is no such thing as a perfect polling date,” Krajewska said. Whatever date that election day is called for, someone will be unavailable or upset by it.

For example, the new date proposed in the court challenge conflicts with municipal elections in Nunavut, she said.

“The right to vote is not an individual right to vote on election day. It is not that narrow,” said Krajewska.

In response, Bienenstock pointed out that little has been said of how to repair the impingement on Aryeh-Bain’s ability to campaign.

It is particularly concerning, Bienenstock said, because her riding is expected to be a close race. It has flip flopped between Conservatives and the Liberals in recent elections and the Liberals won the seat last time by just 3,490 votes.

She said not changing the date could bring the election process into disrepute if the vote is close, either way, with voters wondering what might have been if it had been held on a different date.

Justice Ann Marie McDonald reserved her decision.

McDonald said because of the urgent need to have the election date settled, she will deliver her ruling as soon as possible.