No Right, Law or Administrative Rule is Absolute, but to place reasonable limits on a constitutionally protected right it must be shown that the objective is important enough and is demonstrably justified
Mandel vs Elections Alberta
E LaMont Gregory MSc Oxon
A question of interpretation, and dates
The next provincial general election will occur between 1 March and 31 May, 2019
From the moment Jason Kenney, the leader of the UCP, shared a stage in Calgary with the anti-immigration spouting, classroom budget-cutting premier of Ontario, an ominous cloud portending a downturn in Alberta politics became an inevitability.
And, here we are.
The Court of Queen's Bench of Alberta will shortly hear a case involving a citizen whose constitutionally protected right to participate in the affairs of a system of government; run by citizens, elected by their neighbors, at near regular intervals, to make and enact laws for the general good, Elections Alberta has attempted to curtail.
And, placing the opinion of the Edmonton Journal on the ash heap of partisan politics where it belongs rightfully, Elections Alberta is attempting to override a citizen's right to engage in the electoral process, which stands as the benchmark of Canadian democracy.
The Canadian system stands on the principle that whereas, no right, freedom, law or administrative rule is absolute, at the same time, it guarantees the rights and freedoms in the Charter subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
In fact and in law, any attempt to curtail or to override the rights of any citizen must conform to the Section 1 Charter Test, and have an objective important enough to justify overriding a constitutionally protected right.
In this case there is no objective important enough to justify overriding a constitutionally protected right.
In fact, the imposition of a five-year ban on participation smacks of being disproportional. There ought to always be a reasonable and equitable relationship between the extent and nature of any, in this case, administrative rule and any penalty associated with that rule.
The disproportional nature of the ban which Elections Alberta is attempting to enforce, does not speak well to the future of the eight-month-old reign of the Office of the Election Commissioner, established 1 July, 2018.
The role of the Office of the Election Commissioner is to ensure compliance with, and enforcement of, regulated entities under the Election Act and Election Finances and Contributions Disclosure Act. And, is responsible for fully investigating complaints, levying administrative penalties, issuing letters of reprimand, entering into compliance agreements, and recommending prosecutions.
The ability to penalize under any circumstance is an awesome responsibility, and when any penalty overrides a citizen's ability to participate fully in the affairs of Canadian democratic processes, no aspect, not even a hint of dis-proportionality can exist.
And in this case, in this specific instance, the penalty imposed bears no reasonable relationship to the facts of the alleged administrative rule confusion.
It can be seen that given the circumstances the penalty borders upon the realm of being cruel and unusual.
And therefore, the right thing to do, is:
Overturn the penalty, and find someone to administer the Office of the Election Commissioner, who can do so fairly and with integrity.