On September 6, 2017, the Supreme Court of Newfoundland and Labrador Trial Division (General) released its decision in Mitchell v. Jackman, 2017 NLTD(G) 150, finding certain provisions of Newfoundland’s Elections Act unconstitutional. CCLA intervened in the case and welcomes the decision as a significant advance for democratic rights. CCLA’s arguments were frequently cited throughout the decision.
The case challenged provisions in Newfoundland’s Elections Act that allowed special ballot voting before the official nomination of candidates and even before an election was officially called. Under the legislation, which has no parallel in any other Canadian jurisdiction, voters could cast a special ballot vote up to four weeks before the election has been called, by writing in the name of an intended candidate, the name of a political party, or both. CCLA intervened in this case to argue, in part, that the special ballot process is unconstitutional because it limits the right of individuals and citizens to meaningfully participate in the electoral process and because the special ballot process contravenes the unwritten constitutional principles of Parliamentary democracy.
The Court’s decision frequently drew upon CCLA’s arguments in finding that the special ballot provisions violated democratic rights under section 3 of the Charter. Specifically, the Court found that the provisions unreasonably infringed the democratic rights of voters and political candidates enshrined in the Charter in three important ways: allowing special ballot voters to cast their ballot before the full slate of official candidates was known; limiting the rights of persons running unaffiliated to be qualified for membership in the House of Assembly; and creating an unfair advantage for incumbent candidates, who have campaigning advantages by virtue of their office. The Court also accepted the CCLA’s submission that the special ballot procedures were contrary to the unwritten constitutional convention of Parliamentary democracy, and that this violation could be considered when assessing whether the restriction on democratic rights could be justified in the circumstances.
CCLA was represented in this case by Mark Watton (National Energy Board, formerly Faskens Martineau) and Jennifer L. McAleer (Faskens Martineau).