The Council of Canadians, the Canadian Federation of Students and three individuals have filed a constitutional challenge to provisions of the Fair Elections Act that prevent voters from using their Voter Identification Card as a piece of identification on voting day and restrict the use of “vouching”. The applicants claim that these provisions violate section 3 of the Canadian Charter of Rights and Freedoms, which protects the right to vote, and section 15, which protects equality rights. They allege that these changes will disproportionately impact students, elderly people, people with disabilities, homeless people and Indigenous people, who are all less likely to possess the identification required by the Act.

The applicants filed their constitutional challenge last year. However, the case will not be heard in time for the federal election this October. As a result, the applicants are seeking an injunction to prevent the application of the impugned provisions during the October election. They expect that a full hearing on the merits of the case will take place sometime after the election.

The BCCLA intervened in the to argue that the test for when an injunction should be granted in voting rights cases must take account of the fundamental importance of voting rights in a participatory democracy like Canada. Laws that interfere with voting rights and effectively disenfranchise voters do not promote the public interest and must attract strict scrutiny by the courts.

We argued that the consequences of not granting the injunctive relief are severe: tens of thousands of Canadians will effectively be disenfranchised during the upcoming federal election. They will be unable to exercise one of the most important rights we have in a constitutional democracy. Without an injunction, their opportunity to exercise this right will be gone forever, even if the provisions are later determined to be unjustifiable breaches of Canadians’ constitutional rights. This constitutes irreparable harm to them and, where the disenfranchised voters could have changed the result of the election, to the public at large.

The Court issued its decision on the injunction on July 17. While the judge acknowledged that the law may cause irreparable harm and has the potential to disenfranchise thousands of voters, he declined to issue the injunction. He was concerned that changes to the rules this close to the election would be problematic and pose a risk of unfairness.

The BCCLA looks forward to a full hearing on the constitutionality of the Fair Elections Act after the election, where we’ll be back in court to ensure that democratic rights – the cornerstone of our democracy – are protected.

The BCCLA is represented by Justin Safayeni and Brendan Van Niejenhuis of Stockwoods LLP.

The Court’s decision on the injunction application is here.

Read the BCCLA’s argument here.