This column by Douglas W. Judson was published in Postmedia's Kenora Miner & News on April 13, 2022. It is available on the newspaper's website.
A post-mortem report released by Elections Canada acknowledges its failure to provide election day polling stations in 3 remote First Nation communities in the Kenora riding during the 2021 election. While Elections Canada declined to clearly state whether its actions breached these electors’ Charter right to vote, the law is clear that the denial of a fundamental democratic right is a serious matter.
On the September 20 election day, there was no place to vote in the fly-in communities of Cat Lake, Poplar Hill, and Pikangikum. Elections Canada now points to “administrative and communications errors” as the culprit. The report states that Kenora’s returning officer replaced election day polls in these communities with a one-day on-site poll, on September 13, based on his understanding that election day conflicted with their local hunting and cultural activities.
But this understanding was not shared by the leaders of the 3 First Nations, nor was any information communicated to local voters. Worse, the returning office failed to communicate its change in plans to Elections Canada headquarters, which only learned of the issue on election day, after it was too late to act.
As for advanced polls for these First Nations, they were located between 143 and 283 kilometres away – by plane. The report acknowledges that this was not a realistic alternative either. It indicates that the First Nations’ leaders also told the returning office that voting by mail was not a substitute, given circuitous and lengthy mail delivery in the far north.
These constraints should have been obvious to local elections staff. But having overlooked them, they went ahead to certify a result in which 3 entire First Nations were effectively denied the right to participate. Pikangikum, the largest community, had a turnout rate of just 1.1%, and not a single elector in the 3 communities voted in the advanced polls. Kenora is, by all accounts, a swing riding.
The right to vote in federal and provincial elections is one of our most sacred constitutional guarantees. It’s enshrined in section 3 of the Charter of Rights and Freedoms. Like other Charter rights, it is not absolute, and can be subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
We rely on the courts to interpret the Charter, and the Supreme Court has repeatedly stated that the “fundamental purpose” of section 3 is to promote and protect the right of each citizen to play a “meaningful role in the political life of the country” and in the selection of elected representatives who are politically accountable.
While the total electors in the 3 First Nations (1,675) would not have been enough to close the gap between Kenora’s victor and runner-up, the Supreme Court has held that “participation in the electoral process has an intrinsic value independent of its impact upon the actual outcome of elections.” The court has also recognized that “[d]enying citizens the right to vote … comes at the expense of their dignity and their sense of self-worth[.]” This is notable, given that the right to vote has eluded many Canadians (including Indigenous people, until 1960).
Over time, various restrictions which unjustifiably interfered with the right to vote have been struck down. These include measures which aimed to prevent inmates and judges from voting, and measures which limited the right to vote to citizens who reside outside of Canada. Some appeals courts have found that a failure by government to put in place appropriate mechanisms to enable citizens to exercise their right to vote may also infringe the section 3 right.
The Kenora riding contains over 40 First Nations and has one of the highest proportions of Indigenous electors in the country. When it comes to voting rights, perhaps most relevant for this region is the Supreme Court’s observation that where government action interferes with the right to vote, it may be necessary to consider the social and political context, looking to “a broad range of factors, such as social or physical geography[.]”
Certainly, as Canadian society works to answer the call for reconciliation, and our institutions strive to be more inclusive of Indigenous perspectives, the contemporary social context must come to bear on how we administer the vote. Frankly, our current context is decidedly not one in which Indigenous votes can be administratively overlooked in “communications” snafus. Casual oversights become careless ones when the consequence is that the most marginalized people, in some of the poorest communities, would need to charter an aircraft to exercise their right to vote.
While Elections Canada’s report sets out some considerations to prevent this from happening again, the fact remains that it did happen, and there was – and remains – no sufficient remedy to go back in time to address it. With evidence of weaponized misinformation targeting our elections and shaking trust in democratic institutions, increasingly robust planning, care, and diligence is required to give effect to our most cherished political rights. If it is to have any meaning, the most basic promise of a democratic society must extend to those in all rural and remote communities.
Douglas W. Judson is a lawyer and community advocate based in Northwestern Ontario/Treaty #3 territory. Connect with him at info@douglasjudson.ca or @dwjudson.
Note: This version of the article includes a revision to clarify that in-person voting locations were arranged in the 3 communities on September 13, 2022. Elections Canada's report was unclear on this point and further information was provided after the original publication in the Kenora Miner.