Political Law Development



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Academic Year 2020 – 2021

Faculty of Law

FOCUS WEEK

WORKSHOP No. 4:

ELECTION LAW

Course LAWG – 553

Final version; updated to 12-9-2020

Lecturer:

Gregory Tardi, B.A. (Hons.), B.C.L., LL.B., DJur.

lawprof@live.ca

gregory.tardi@mcgill.ca

INTRODUCTION TO THE COURSE

In a Democracy, elections are fundamentally important!

The purpose of this introduction is to ensure that we have the same understanding of the fundamentals and the terminology of this course. Democracy (capitalized) is the designation of a type of political system, in contrast to authoritarian and dictatorial regimes. Democratic states are the ones based primarily on constitutionalism and the rule of law; the ability of the people to choose their own government in a free, fair and transparent manner; alternance of governments; separate branches of government, including an autonomous judiciary; entrenched civil and political rights. Within this overall concept, democracy (using lower case) has come to designate the principles, rights and legal rules specifically dealing with the preparation, conduct and delivery of elections. Using this perspective, the objective of the Focus Week course on Election Law will be to discuss the rules about democratic elections in the overall context of the Democratic system of government in Canada.

Both Democracy and democratic rules are important factors in the exercise of citizenship. With the exception of the Québec referenda on sovereignty, the rate of participation in elections, at both federal and provincial or territorial levels, is low. Usually, a third or more of the electorate fail to participate in the D/democratic process. Parliament has revised the Canada Elections Act on several occasions and in various manners, most recently in the 2018-2019 period, to render voting easier and more accessible. The Supreme Court of Canada has developed doctrines to ensure that electoral regimes throughout the country are ever-more fair and even-handed: witness the doctrines of the "informed electorate", "effective participation" and "the level playing field". Elections Canada is cautiously becoming engaged in voter education. Nevertheless, a number of citizens are still alienated from the country's public life.

One likely reason for citizens' disconnect from D/democracy is that a vibrant political life constitutes a permanent struggle between constitutional principles, legal rules and a sense of justice on one hand and the constant attempt to achieve political power and to hold public office on the other. In this context, the legal profession is that segment of society and of the electorate that should most fully know about elections and Election Law. Lawyer participation in the electoral system is absolutely necessary! Candidates for office with a sense of the law become better politicians. Those versed in Election Law become more professional public servants. Counsel are necessary to represent both individual and collective participants in the D/democratic system and to litigate on their behalf.

A course on Election Law, no matter how short and intensive, is interesting in itself. It is a good follow-up to undergraduate studies in political science and a sound complement to law school courses on constitutional law and administrative law. Moreover, this fall 2020 program comes at an opportune time. The question will persist whether the 43rd Parliament will live out its mandate until the 44th general election, scheduled for 2023. The Supreme Court will be considering the case of Toronto (City) v. Ontario, an opportunity to again address fundamental aspects of electoral justice. The class will also have a chance to examine both substantive and procedural issues arising from the United States presidential election and to contrast those to Canadian practice.

The methodology in this course will be that earlier used in the teaching of Political Law at McGill, namely examination of the interdisciplinary study of the role of law in statecraft. In Election Law, the law-policy-politics relationship is particularly important! As an instrument of Democratic governance, Election Law functions in conjunction with public policy and administration, and with politics. This course will first set out the relevant law. It will also focus on the linkages among the various types of instruments and the blurred distinctions among them, making their study as a unified body of rules of D/democracy both worthwhile and timely.

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COURSE INFORMATION

Term: Fall 2020

Location: Arrangements made through Zoom; this course will be recorded.

Dates and times: October 19 – 22, 2020

Academic Credits: 1

Maximum enrolment: 25 law students; including undergraduates and graduates

Prerequisites: None required. Undergraduate study of political science, and / or law school courses entitled Administrative Process and Judicial Review of Administrative Action are useful for this course, but not required.

Language /langue: The first working language of the class will be English.

Chacun est invité à s'exprimer ou à écrire dans sa langue préférée.

Teaching methods: The course will be conducted through a blend of lecturing, seminar-style class discussion and the possible participation of

specialists as guest speakers.

Method of evaluation: Effective class participation:…………………..….….........…10%;

Paper (min. 2500 words, max. 4000 words) due on Faculty / Department schedules…………..….90%.

Paper: Students should select a paper topic from among those listed at the end of this syllabus, or one similar in nature to these topics. The instructor’s registration of each topic is necessary. No topic may be selected by more than one student; approvals are discussed on a first-come-first-served basis. The deadline for submission of the final version is November 6, 2020 at 15:00 hrs. for all students. Please submit your papers electronically to Saoassignments.law@mcgill.ca and send a copy to the instructor. All students should identify themselves by both name and student number on the paper.

Lecturer contacts: e-mail: lawprof@live.ca gregory.tardi@mcgill.ca

Meetings with students: Considering the need for social distancing as a result of

the current pandemic, the lecturer intends to make himself

available both to prospective students and to those enrolled

in the course more extensively than if class meetings were available.

In this process, e-mail contact should be the first step.

RECOMMENDED COURSE MATERIAL

- Selected Readings from Textbook :

Gregory Tardi

Anatomy of an Election:

Canada's 43rd Federal General Election Through the Lens of Political Law

(Toronto: Irwin Law, 2020)

ADDITIONAL COURSE MATERIAL

- Selected Readings from Related Texts About Canada :

Richard Balasko and Gregory Tardi, eds.

The Informed Citizens’ Guide to Elections:

Electioneering Based on the Rule of Law

Le Guide du citoyen averti aux élections:

Faire campagne selon la règle de droit

(Toronto: Thomson Carswell, 2015)

Richard Balasko and Gregory Tardi, eds.

The Informed Citizens’ Guide to Elections:

Current Developments in Democracy

Le Guide du citoyen averti aux élections:

Le développement actuel de la démocratie

(Toronto: Thomson Reuters, 2019)

Gregory Tardi

The Theory and Practice of Political Law, 2nd ed.

(Toronto: Carswell, 2016)

Gregory Tardi

The Law of Democratic Governing:

Vol. I: Principles Vol. II: Jurisprudence

(Toronto: Carswell, 2004)

- Specialized Journal: The course will take into account as teaching material a number of texts published in the Journal of Parliamentary and Political Law /

Revue de droit parlementaire et politique.

SUMMARY COURSE OUTLINE AND SCHEDULE

1. 19-10-2020; 3-4 PM........General Principles of Election Law in Canada, Québec and Ontario

2. 19-10-2020; 4-5 PM……The Electoral System

3. 19-10-2020; 5-6 PM……Election Administration

4. 20-10-2020; 3-4 PM.…....Political Parties, Candidates, Third Parties

5. 20-10-2020; 4-5 PM….....Electioneering

6. 20-10-2020; 5-6 PM….…Political and Electoral Broadcasting and Advertising

7. 21-10-2020; 3-4 PM….…Political and Electoral Promises

8. 21-10-2020; 4-5 PM…….Voting

9. 21-10-2020; 5-6 PM…….Political and Electoral Financing

10. 22-10-2020; 3-4 PM……..The 43rd Federal General Election and Other Current Issues

11. 22-10-2020; 4-5 PM…......The Member of Parliament / Member of the Legislative Assembly

Government Formation After an Election

Securing and Maintaining Confidence

12. 22-10-2020; 5-6 PM….....International Comparison:

The 2020 Presidential Election in the United States

A NOTE ABOUT THE SYLLABUS

This syllabus is designed not only to guide your study, but more generally, to engage your interest in election law and practice, and hopefully to be of use to you after the course is completed.

The following pages (8-19), on which the study material for each of the components of this course are set out, willfully contain far more material than can be expected of a student in this type of concentrated program. Therefore, the material outlined in support of each topic included in the course is designed to constitute an intellectual menu, broader than a list of reading requirements.

Each student should read as much as they can from the listed material, based on personal interests. Using this method, various students in the class are likely to have read every item and therefore the entire class will be able to engage in discussion and analysis of the entire material shown here.

DETAILED COURSE OUTLINE AND SCHEDULE

1. 19-10-2020; 3-4 PM:

General Principles of Election Law in Canada, Québec and Ontario

General Introduction

The foundational concept rendering elections necessary is Democracy, which is a seamless blend of law and politics. Within that intellectual framework, this course will first endeavour to provide students with a grounding in the components of election law, that is (lower-case) democracy, primarily in Canada, but also in respect of Québec and Ontario. It will also situate these legal components within the constantly evolving framework of political life. Emphasis will be laid on the interaction between legal principles and political imperatives.

Constitutional Provisions

- Constitution Act 1867, Preamble, ss. 50, 51, 51A, 52.



- Constitution Act, 1982, Preamble, ss. 2, 3, 4, 5.



Legislation

- Canada Elections Act, Part 1 – Electoral Rights



- Loi électorale (Québec), Titre I – Qualité d'Électeur



- Election Act (Ontario), s. 15 – Qualification of Electors



Jurisprudence

- Haig v. Canada (Chief Electoral Officer), [1993] 2 SCR 995 – entitlement to vote

- Canada (Attorney General) v. Somerville, 1996 ABCA 217 – Charter rights and the interests of society

- Libman v. Québec (Attorney General), [1997] 3 SCR 569 – informed choice

- Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68 – right to vote is fundamental to society

- Figueroa v. Canada (Attorney General), 2003 SCC 37 – meaningful participation

- Bielli v. Canada (Attorney General), 2012 FC 916 and

- McEwing v. Canada (Attorney General), 2013 FC 525 – establishing a standard for electoral fraud

- Frank v. Canada (Attorney General), 2019 SCC 1 – voting as a continuing right of citizenship

Political Instruments

- Mandate Letter from the Prime Minister to the President of the Queen's Privy Council



2. 19-10-2020; 4-5 PM: The Electoral System

Legislation

- Electoral Boundaries Readjustment Act



- Canada Elections Act, Part 4 – Register of Electors and Future Electors

Part 7 – Revision of Lists of Electors

- Loi électorale (Québec), Titre II – Représentation Électorale

Titre II.1 – Liste Électorale Permanente

Titre IV, Chapitre III – Liste Électorale

- Election Act (Ontario), s. 9 – Four Year Terms

s. 9.1, 10 – Writs

s. 11 – Notice of Election

s. 17.1 et seq. – Permanent Register of Electors

Jurisprudence

- Dixon v. British Columbia (Attorney General), (1989) 59 DLR (4th) 427 – equality of representation

- Reference Re Provincial Electoral Boundaries (Saskatchewan), [1991] 2 SCR 158 – effective representation

- Société des acadiens et acadiennes v. New Brunswick (Governor-in-Council), [1997] NBJ No. 207 and

- Raîche v. Canada (Attorney General), 2004 FC 679 – effective representation includes linguistic rights

- Conacher v. Canada (Prime Minister), 2010 FCA 131 – GG discretion in granting an election

- Daoust c. Québec (Directeur général des élections), 2011 QCCA 1634 – proportional representation

Literature

- Elections Canada: The Electoral System of Canada, 4th ed., 2015



Legislative Proposals

- Québec: 42e législature, 1re session: Projet de loi 39: Loi établissant un nouveau mode de scrutin,

présenté le 25 septembre 2019

3. 19-10-2020; 5-6 PM: Election Administration

Legislation

- Canada Elections Act, Part 2 – Chief Electoral Officer and Staff

Part 3 – Election Officers

Part 19 – Enforcement

Part 21 – Reports of the Chief Electoral Officer and of the Commissioner

- Loi électorale (Québec), Titre VI – Organes Électoraux

Titre VI, Chapitre I – Directeur Général des Élections

Titre VI, Chapitre II – Directeur du Scrutin

Titre VI, Chapitre IV – Commission de la Représentation

Titre IV, Chapitre II – Personnel Électoral

Art. 308 – Personnel du scrutin

Titre VIII – Dispositions Pénales

- Election Act (Ontario), s. 3 – Administration

s. 7 - Returning Officers

s. 114 – Office of the Chief Electoral Officer

s. 90 – Corrupt Practices

Jurisprudence

- Ahenakew v. MacKay, 2004 CanLII 12397 (ON CA) – Canada Elections Act has displaced common law

- Stevens v. Conservative Party of Canada, 2005 FCA 383 – exercise of statutory authority by CEO

- Canada (Chief Electoral Officer) v. Callaghan, 2011 FCA 74 – neutrality of the CEO

Literature

- Elections Canada Strategic Plan 2020-28



4. 20-10-2020; 3-4 PM: Political Parties, Candidates, Third Parties

Legislation

- Canada Elections Act, Part 6 - Candidates

s. 550 – Signed pledges by candidates prohibited

Part 18, Division 2 – Political Parties

s. 349 – Third Parties

- Parliament of Canada Act, s. 21 et seq. – Candidacies



- Public Service Employment Act, Part VII – Political Activities



- Political Activities Regulations



- Loi électorale (Québec), Titre III, Chapitre 1 – Autorisation des Partis Politiques, etc.

Titre IV, Chapitre 4 - Candidat

- Election Act (Ontario), s. 26 – Candidates

s. 27 – Nominations

Jurisprudence

- National Citizens' Coalition Inc v. Canada (Attorney General), 1984 CanLII 1181 (AB QB) – Charter rights

and the interests of society

- Barrette c. Canada (Procureure générale), 1994 CanLII 5505 (QC CA) – equal treatment of candidates

- Longley v. Canada (Attorney General), 2007 ONCA 852 – equal treatment of political parties

- Taman v. Canada (Attorney General), 2017 FCA 1 – disqualification of a candidate

5. 20-10-2020; 4-5 PM: Electioneering

Legislation

- Canada Elections Act, Part 5 – Conduct of an Election

ss. 80-81.1 – Rights of Candidates in Campaigning

s. 349 – Partisan Activity

- Loi électorale (Québec), Titre IV – Période Électorale

- Election Act (Ontario), s. 89.1 – Rights of Candidates

Jurisprudence

- Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084

- Beaumier v. Brampton (City) (1999) 7 M.P.L.R. (3rd) 219

- Sexton v. Holden, [2001] 6 W.W.R. 116

6. 20-10-2020; 5-6 PM:

Political and Electoral Broadcasting and Advertising

Legislation

- Canada Elections Act, Part 16 – Communications

Part 16.1 – Voter Contact Calling Services (aka robo-calls)

Part 17 – Third Party Advertising

s. 330 – Political Broadcasting

- Loi électorale (Québec), Titre IV.1 – Affichage Électoral

- Election Finances Act (Ontario), ss. 37 – 37.13 – Campaign Advertising

Jurisprudence

- Canada (Attorney General) v. Reform Party of Canada, 1995 ABCA 107 – public interest in broadcasting

- Thomson Newspapers Co v. Canada (Attorney General), [1998] 1 SCR 877 – rational voting

- May v. CBC/Radio-Canada, 2011 FCA 130 – public legal duty to act

- Métallurgistes unis d'Amérique (FTQ), section 7649 c.

Québec (Directeur général des élections), 2011 QCCA 1043 – right of expression

7. 21-10-2020; 3-4 PM: Political and Electoral Promises

Legislation

- Canada Elections Act

- Loi électorale (Quéec)

- Election Act (Ontario),

Jurisprudence

- Ruffolo v. Mulroney, Ontario Provincial Court – Toronto Small Claims [1988] O.J. No. 2670

- Reclamation Systems v. Rae, (1996) 27 O.R. (3d) 419

- Friesen v. Hamell, 2000 BCSC 1185 – good faith campaigning

- R. v. Sona, 2014 ONCJ 365, 2014 ONCJ 606, 2014 ONCJ 859 – criminal liability for electoral trickery

8. 21-10-2020; 4-5 PM: Voting

Legislation

- Canada Elections Act, Part 8 – Preparation for the Vote

Part 9 – Voting

Part 10 – Advance Polling

Part 11 – Special Voting Rules

Part 11.1 – Prohibitions in Relation to Voting

Part 12 – Counting the Votes

Part 13 – Validation

Part 14 – Judicial Recount

Part 15 – Return of the Writ

Part 20 – Contested Elections

- Loi électorale (Québec), Titre IV, Chapitre V - Scrutin

Titre IV, Chapitre V, Section I.1 – Modalités d'Exercice du Droit de Vote

Titre IV, Chapitre V, Section II.1 – Vote par Correspondance

Titre IV, Chapitre V, Section II.2 – Vote par Anticipation

Titre IV, Chapitre V, Section II.3 – Vote dans les Locaux des Centres etc.

Titre IV, Chapitre V, Section IV – Proclamation et Publication des Résultats

Titre IV, Chapitre V, Section V – Dépouillement Judiciaire

Titre V – Contestation Judiciaire

- Election Act (Ontario), s. 29 – Notice of Poll

s. 44 – Advance Polls

s. 46 – Procedure at the Polls

s. 60 – Certificate of Count

s. 69 – Recount

s. 69 – Contested Elections

s. 81 – Election Results

Jurisprudence

- Sauvé v. Canada (Attorney General), 1993 CanLII 92 (SCC) – right to vote entrenched in the Constitution

- R. v. Bryan, 2007 SCC 12 – informational equality among voters

- Hughes v. Elections Canada, 2010 CHRT 4 – electors with disabilities treated equally

- CDN Broadcasting Corporation. v. Attorney General, 2011 ONSC 2281 –

informational equality with new technologies

- Opitz v. Wrzesnewskyj, 2012 SCC 55 – electoral irregularity and its consequences

- Henry v. Canada (Attorney General), 2014 BCCA 40; leave to appeal to the SCC denied – voter identification

9. 21-10-2020; 5-6 PM: Political and Electoral Financing

Legislation

- Canada Elections Act, Part 18 – Financial Administration

- Loi électorale (Québec), Titre III - Autorisation et Financement des Partis Politiques, etc.

Titre IV, Chapitre VI – Contrôle des Dépenses Électorales

- Election Finances Act (Ontario)

Jurisprudence

- Longley v. Canada (Minister of National Revenue), 1999 CanLII 5750 (BC SC) – public contributions

- Harper v. Canada (Attorney General), 2004 SCC 33 – level playing field

- Conservative Fund Canada v. Canada (Elections), 2010 ONCA 882 – election spending limits

- R. v. Del Mastro, 2017 ONCA 711 – electoral overspending

10. 22-10-2020; 3-4 PM:

The 43rd Federal General Election and Other Current Issues

10.1 The 43rd Federal General Election

Legislation

- Canada Elections Act

Literature

- Gregory Tardi, Anatomy of an Election (Toronto: Irwin, 2020)

- Report of the Chief Electoral Officer of Canada on the 43rd Federal General Election



10.2 Provincial Interference on Municipal Elections

Jurisprudence

- Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761; leave to appeal to the SCC granted –

principles of democracy and rule of law in electioneering

10.3 Struggle for Leadership of a Political Party

Jurisprudence

- Karahalios v. Conservative Party of Canada, 2020 ONSC1947 and 2020 ONSC 3145

Literature

- Terry D. Hancock, "Blood Sport": The Struggle for Political Party Transparency in Ontario,

(2020) 14 JPPL 367

11. 22-10-2020; 4-5 PM:

The Member of Parliament / Member of the Legislative Assembly

Government Formation After an Election

Securing and Maintaining Confidence

11.1 The Member of Parliament / Member of the Legislative Assembly

Legislation

- Parliament of Canada Act, s. 25 – Resignations

s. 28 – Vacancies

- By-Laws of the Board of Internal Economy, s.1 – definition of "parliamentary functions"



Jurisprudence

- Canada (House of Commons) v. Vaid, 2005 SCC 30 – Parliament and parliamentary functions

11.2 Government Formation After an Election

Literature

Russell, Peter H. and Lorne Sossin, Parliamentary Democracy in Crisis

(Toronto: University of Toronto Press, 2009)

11.3 Securing and Maintaining Confidence

Literature

Heard, Andrew. Canadian Constitutional Conventions: The Marriage of Law & Politics, 2nd. ed.

(Oxford: Oxford University Press, 2014)



12. 22-10-2020; 5-6 PM:

International Comparison: The 2020 Presidential Election in the U.S.

Constitutional Provisions

- United States Constitution, Art. II, s. 1

Legislation

- Variations, State by State

Jurisprudence

- Buckley v. Valeo, 424 U.S. 1 (1976) – campaign financing

- Bush v. Gore, 531 U.S. 98 (2000) – Florida recount in 2000 presidential election

- Citizens United v. FEC, 558 U.S. 310 (2010) – campaign financing and First Amendment

- Shelby County v. Holder, 570 U.S. 529 (2013) – continuation of the 1965 Voting Rights Act

- Chiafalo v. Washington, 591 U.S. ___ (2020) – faithless electors in the electoral college

Literature

Douglas, Lawrence. Will He Go? (New York: Hachette Books, 2020)



Dershowitz, Alan. Electile Dysfunction (New York: Rosetta Books, 2016)



Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000

(Oxford: Oxford University Press, 2002)

Geoghegan, Peter. Democracy for Sale: Dark Money and Dirty Politics

(London: Head of Zeus, 2020)









SELECTION OF ESSAY TOPICS

- Trace the legislative history of the Canada Elections Act.

- Do electoral promises have legal merit and consequences?

- Is there a link between election law and lobbying in Canada?

- What is the principle of "informed choice"?

- Discuss the current case against former Finance Minister Bill Morneau.

- Should Crown prosecutors be able to run for elective office?

- Can election rules be changed in the course of a campaign?

- Discuss the subject of by-elections in the Canadian electoral system.

- What are the legal elements of the Chief Electoral Officer's independence from government?

- Are fixed-date elections of benefit to Canada or do they entail disadvantages?

- What are the particularities of an election conducted during the COVID-19 pandemic?

- Set out the rules of political broadcasting and discuss them.

- What are the legal consequences of campaign overspending?

- Discuss the Supreme Court of Canada's view on the level playing field.

- Clarify the notion of "effective representation".

- Can inmates in Canada's penal institutions vote? Why and how?

- Is the doctrine of "informed choice" beneficial for Canada?

- Explore the concept of "rational voting" in light of Canadian jurisprudence.

- What participation in Canadian elections can be qualified as "meaningful"?

- Discuss the evolution of the law on party leaders' debates and candidates' debates.

- What is the state of play in the struggle for proportional representation in Canada?

ADDENDUM

United Nations – Political and Peacebuilding Affairs







Council of Europe – Venice Commission









European Court of Human Rights



European Court of Justice



European Union Agency for Fundamental Rights



The Commonwealth Secretariat – Democracy, Government and Law Section



La Francophonie – Affaires Politiques et Gouvernance Démocratique



Organization of American States – Secretariat for Strengthening Democracy



African Union - Democracy, Law and Human Rights



International: Election-Related Case Law Database



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