On Tuesday the Federal Court issued a finicky ruling that concerns the “fixed” statutory date of the upcoming federal election. The Canada Elections Act contains an algorithm for establishing the date, and everyone was expecting it to fall on the target day, Oct. 21. In 2019, however, this date coincides with a holy day observed by Orthodox Jews called Shemini Atzeret.
It has been observed that this is a fairly obscure observance within mainstream Canadian Judaism; the day falls at the end of the week-long festival of Sukkot (a harvest period formerly called Succoth or the Feast of Tabernacles in English texts). In Orthodox Jewish law the close of Sukkot is accompanied by the restrictions on “labour,” including exertion or errands of any nature, that are imposed during the ordinary sabbath.
This is a significant inconvenience for Chani Aryeh-Bain, who is the Conservative nominee in Toronto’s Eglinton-Lawrence riding. Aryeh-Bain is Orthodox, and Eglinton-Lawrence is thought to have 5,000 or so Orthodox voters. Jewish feast days demonstrably cripple voter turnout within this community. But how, you may be wondering, can the date of an election be judicially reviewable? How did we get to the point at which there is talk of adjusting an election date for the calendar of a particular faith — which, given the glittering galactic diversity of multicultural Canada, may seem to portend myriad procedural headaches and quarrels?
It turns out to be the usual, for Canada: slipshod lawmaking plus aggressive judges. When the federal government adopted fixed election dates, the Elections Act was rewritten, as I say, to include an algorithm for determining the date. But lest this calculation lead on some occasion to obvious absurdity or disaster, the chief electoral officer was given an escape mechanism. The Elections Act says, vaguely, that if a scheduled election date is “in conflict with a day of cultural or religious significance,” the CEO can decide to bump it forward.
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