A bid to stop a key provision of the Conservative government's Fair Elections Act from being implemented in this fall's election has been denied by the Ontario Superior Court of Justice.
Justice David Stinson ruled on Friday that a request by the Council of Canadians and the Canadian Federation of Students for an interim injunction against new rules for voter identification could not be granted.
The activist groups that brought forward the challenge had been seeking to allow Canadians to use the voter-information cards they receive in the mail as proof of identity at polling stations – something that Elections Canada had been planning to allow before changes to the Canada Elections Act were passed by Parliament in 2014.
They argued in court that the effect of those changes, which require government-issued photo identification with proof of address in order to vote, would effectively disenfranchise tens of thousands of people – especially aboriginals, students, the homeless and elderly people living in care homes – who might not have driver's licences, the easiest such form of ID.
In addition to explicitly banning the use of the information cards at the polls, which Elections Canada tested in a pilot project with 900,000 eligible voters during the last federal election, the Fair Elections Act also ended the practice of "vouching," in which voters with acceptable ID could attest to the identity and addresses of those who lacked it.
Justice Stinson stressed that he was not making a definitive ruling on whether the provisions violate the Charter of Rights and Freedoms, as the applicants have argued, and noted they have raised questions that are "not frivolous." Those will be determined, he wrote in his ruling, once the groups' full application to have the legislation overturned is heard in court – something there was not time for in advance of this fall's vote.
However, he found there was not clear enough proof of public harm caused by the new rules to overcome precedent against staying electoral legislation in advance of elections.
On the contrary, he wrote, the "blunt instrument of judicial intervention" at this late stage "might harm public confidence and could lead to further errors in the election process." And he suggested that it could be unfair to suspend only one aspect of the Fair Elections Act, "without considering the impact and context provided by the rest."
In a phone interview following the ruling, Council of Canadians executive director Garry Neil said his organization will consider an appeal. While acknowledging that the appeal would have to be heard quickly for it to have any chance at impacting the coming election, he held out hope that Elections Canada would still have time to make its voter-information cards usable as ID by blacking out a section on each one that says it cannot be used for that purpose.
Mr. Neil said he and his colleagues were "disappointed but not deterred" from trying to have provisions of the Fair Elections Act ruled unconstitutional following the election, regardless of whether they continue to pursue an injunction before it. "There's a lot of positive in the result, because the judge found there are serious issues to be resolved in the case," he said.
Lawyers for the government cautioned during the injunction hearings that suspending the rules could lead to increases in voter fraud and other inconsistencies. And they questioned the argument that Elections Canada's information cards would help the groups argued to be at risk of disenfranchisement, contending that some of those would-be voters would be unlikely to receive the cards in the first place.
In past federal elections, through the one held in 2006, voters did not require proof of identification if they were already on the voters' list; they simply needed to state their name and address at the polling station. That changed during the Conservatives' first term in office, when ID requirements were introduced, before the rules were tightened again before the coming campaign.
The government's critics have painted the tightened rules as a version of the sort of "voter suppression" aimed at groups that are unlikely to vote Conservative. And they have noted that the government has provided few specific examples of the sort of voter fraud the changes are supposed to prevent.
Pierre Poilievre, the minister responsible for democratic reform, has countered that there remain 45 authorized forms of ID with which Canadians can choose to identify themselves at the polls.
Ironically, an injunction sought by Prime Minister Stephen Harper when he was president of the National Citizens Coalition was among the key precedents cited in Justice Stinson's decision.
In that case, Mr. Harper aimed to suspend limits on third-party spending introduced by the Liberal government of the day. That request was granted but then overturned by the Supreme Court of Canada, on the basis that effectively giving Mr. Harper the result he was seeking before the case had been fully heard could not be justified.