Taft v. Alberta (Chief Electoral Officer), 2011 ABQB 769

Court of Queen ’ s Bench of Alberta Citation: Taft v. Alberta (Chief Electoral Officer), 2011 ABQB 769 Date: 20111214 Docket: 0903 20112 Registry: Edmonton Between: Kevin Taft Applicant - and - Her Majesty the Queen in Right of Alberta and The Chief Electoral Officer of Alberta Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M.A.

Binder _______________________________________________________ Introduction [ 1 ] In 2008, Alberta experienced the worst voter turnout in history for a Provincial general election. [ 2 ] The Applicant, Kevin Taft (Taft), was an MLA, leader of the Alberta Liberal Party and leader of the Official Opposition before, during and after the 2008 election. He alleges that the root cause of the low voter turnout was the failure of the Lieutenant

Governor in Council (Cabinet) to appoint Returning Officers (ROs) in a timely fashion so as to enable them to carry out their duties under the Election Act , RSA 2000, c E-1 ( Act ), one of which is to appoint enumerators in order to update the voters list.

In turn, the unpreparedness of the ROs resulted in a systemic failure characterized by a variety of specific barriers to voting. [ 3 ] Taft seeks declaratory relief under s 24(1) of the Charter stating that the conduct of the 2008 election infringed the s 3 Charter rights of eligible voters and those running for office in the 2008 election . [ 4 ] The Respondents, Alberta and the Chief Electoral Officer (CEO), argue that Taft has no standing, the matter is moot and the application for declaratory relief should be dismissed as serving no useful purpose. [ 5 ] Alberta had previously applied for

summary judgment under old Rule 129, raising both standing and mootness. That application was dismissed by the chambers judge (affirmed on appeal) on the basis that it was not plain and obvious or beyond doubt that Taft's claim was doomed to fail for lack of standing, and mootness arguments should not result in dismissal at that stage of the proceedings under Rule 129 ( Taft v. Alberta , 2010 ABCA 366 , [2010] AJ No1394 ). [ 6 ] Given the result of that application, it would have been difficult if not impossible to find mootness without hearing argument on all issues.

Accordingly, this Court heard argument on all issues, including the alleged s 3 breaches, in order to have a context within which to rule on the preliminary objections, and to avoid potential piecemeal proceedings. Applicants ’ Position [ 7 ] Taft alleges that the following infringed the right of some or all citizens to play a meaningful role in the 2008 Provincial general electoral process:

a) the Alberta government attempted to delegate its election responsibilities to an official of the Progressive Conservative party, who supplied the CEO with a useless list of party stalwarts, most of whom had no interest in being ROs;

b) the Cabinet appointed certain ROs with strong connections to one political party;

c) the Cabinet was late in appointing ROs, despite repeated warnings by the CEO, resulting in inaccuracies in the voting list and long wait times to vote;

d) ROs were slow in responding to requests for special ballots;

e) the RO for Foothills-Rockyview moved a polling place with notice to one but not all candidates;

f) the RO for Livingston-MacLeod decided not to locate a polling place on the Piikani or Kainai Nations;

g) the RO for Lethbridge West refused to locate a mobile poll at the University of Lethbridge;

h) the RO for Drumheller-Stettler failed to set up mobile polls at two assisted living facilities in Drumheller; and

i) the CEO directed electors to the wrong polling places. [ 8 ] Compounding these problems, the month long lead up to the election occurred in the depth of Alberta ’ s winter and when the economy was in overdrive. [ 9 ] Taft submits that the problems in the election preparation resulted in a systemic breakdown in the electoral system characterized by overwhelmed election officials, inaccurate lists, poorly placed polls, long line-ups, media reports of partisan appointments of election officials, specific complaints of possible partisan behaviour, and general confusion and chaos.

This constituted a breach of s 3 of the Charter : 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Respondents ’ Position [ 10 ] The Respondents argue that Taft ’ s application should be dismissed because:

a) Taft was not denied the right to vote;

b) Taft does not have standing to make claims about other electors ’ right to vote and no legislation is being called into question;

c) the matters complained of are moot in that:

i) the 2008 election is over and Taft is not seeking to overturn it; ii) the Act has been amended by the Election Statutes Amendment Act 2010, and administrative changes have been made at Elections Alberta in order to remedy the problems cited; iii) the CEO, an independent officer of the Legislature, now appoints ROs;

d) declaratory relief will have no practical effect; and

e) Taft had other remedies available to him under the Act or by way of judicial review. [ 11 ] Alberta concedes that ROs were appointed late and that this was unsatisfactory in certain respects. However, the Respondents rely on the 2008 CEO Report to the Legislature which references a number of the issues raised in this proceeding, and the response of the Legislature to address a significant number of those issues, in particular amendment of the Act to provide for the appointment of RO ’ s by the CEO an independent officer of the Legislature, rather than by Cabinet.

They also rely on the opinion of the former Chief Electoral Officer of Canada (1990-2007), Jean-Pierre Kingsley, to the effect that the evidence before him pointed to an effective election. The Respondents take the position that the evidence does not support a finding of problems on such a scale as to warrant a declaration under s 3.

Standing [12] The Crown conceded that Taft has standing to complain that appointment of ROs with strong connections to one politicalparty infringed his right to play a meaningful role in the electoral process. However, the Respondents submit that perception of partialityalone does not engage s 3. As mentioned above, there was also some acknowledgment that the late appointment of ROs did createproblems. [13] However, the Respondents emphasize that Taft is not challenging any statutory provision. They rely on Borowski v.

Canada(Attorney General), (SCC), [1989] 1 SCR 342, 57 DLR (4th) 231 and PW Hogg, Constitutional law of Canada, 5th ed(Toronto: Carswell, 2007- ) at 40-3, 40-29, 40-30, 59-3 for the proposition that public interest standing is not available under s 24(1) ofthe Charter and even s 52 public interest standing requires a showing of exceptional prejudice. A meaningful right to participate does notencompass every alleged violation of someone else’s right to vote. See also R v. Ferguson, 2008 SCC 6, [2008] 1 SCR 96 at paras 60, 61 and Conacher v.

Canada (Prime Minister), 2010 FCA 131 , 320 DLR (4th) 530, 2010 CarswellNat 1465 at para 11. [14] The Respondents submit that the Supreme Court’s expansive view of s 3 in Figueroa v. Canada (Attorney General), 2003SCC 37, [2003] 1 SCR 912 and other election cases has not changed this approach to standing for the purposes of s 3. Taken to theextreme, every candidate or party leader could complain of any individual’s impediment to voting. The difficult question is how manyvoter problems would be enough to create public interest standing or standing on the part of a candidate or party leader?

TheRespondents submit that there would have to be some potentially significant impact on a particular political party. [15] Taft cites in particular Figueroa and Reference re Provincial Electoral Boundaries (Sask), (SCC), [1991] 2SCR 158 as authority for the proposition that s. 3 of the Charter protects the right of each citizen to play a meaningful role in theelectoral process, and that the right to vote may be infringed regardless of whether the outcome of the election would be affected. Henotes that the Supreme Court in Harper v.

Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827 stated at para 70 that the rightto play a meaningful role in the electoral process under s. 3 implicates a right of meaningful participation in that process. [16] Taft also cites Henry v. Canada (Attorney General), 2010 BCSC 610, 7 BCLR (5th) 70: 178 As Canada correctly concedes, the plaintiffs have standing, as citizens affected by the voter identification requirements in the Act,to challenge the legislation.

To then say, as Canada does, that the plaintiffs must fail because they have not established that they orspecific other persons have been unable to vote in a specific election because of the identification requirements is, in effect, to say thatthey must wait until they have actually lost the opportunity to vote before they can complain. That would greatly attenuate the electoralrights. Being denied a ballot is an irretrievable deprivation. Analysis [17] Many of the authorities relied upon by Taft involved challenges to legislation.

The authorities which address s 24(1) clearlyindicate that only a person whose rights are infringed under the Charter has standing to seek relief under s 24(1). [18]

Section 3 protects not only voters but persons running for office in an election - in this case the Applicant, Dr. Taft, who wasalso the leader of the Liberal Party seeking to form the government. In my opinion, logic dictates that the right to run for office mustcarry with it the unimpeded right of voters to vote for those running for office. It follows that the government of the day has the duty oftaking reasonable steps to ensure that the rights of eligible voters and those running for office are reasonably facilitated and notunreasonably impeded. [19] As well, in my view, the Supreme Court’s expansive

interpretation of s. 3 has implications in relation to the standing analysis,even where legislation is not challenged. This is not to say that candidates or party leaders have unlimited standing to challengeprovincial elections outside of the available statutorily prescribed procedures (recount - ss 144-148; controverted election process - ss185-190; offences - ss 154-184). Further, I agree with the Respondents that perception of partiality alone does not engage s. 3. Evidence

would be required to establish, for example, that such perception was so widely held as to undermine the democratic process. [ 20 ] I need not circumscribe the limits on standing for the purpose of all such challenges, nor would it be desirable to do so. In this case Taft ’ s allegations, if proven, might cumulatively establish systemic problems having the potential to undermine the democratic process.

Even the best possible elections legislation can be implemented in such a manner as to undermine democratic rights. [ 21 ] I find that at a minimum Taft has limited standing sufficient for the Court to address the question of mootness.

Mootness [ 22 ] The Respondents note that extensive legislative amendments have been made; the democratic process is in constant evolution and in any election many issues may arise that require improvement for policy reasons. [ 23 ] Specifically, as previously noted, the legislative amendments since 2008 have removed the appointment process from Cabinet and given it to the CEO, an independent officer of the Legislature. Further, as outlined in Tab 12 of Alberta ’ s Book of Authorities, numerous amendments to the Election Act can be directly related to the CEO ’ s recommendations in his March 3, 2008 Report.

As well, the Legislature has just introduced Bill 21 which contemplates a system of fixed election dates. [ 24 ] Taft argues that the matter is not moot because the declarations sought would provide guidance in future elections, citing among other cases Democracy Watch v Canada (Prime Minister) , 2008 FC 1119 , 335 FTR 217 : 26 Refusing to expedite the hearing will render moot part of the relief sought by the applicants to quash the decisions of the Prime Minister and the Governor General and effectively stop the election. 27 However, even if the matter were heard on October 8 or 9, given the complex, novel, and substantive issues raised by this application, it is unlikely that a judgment would issue prior to the date of the general election.

Counsel for the applicants concedes moreover that if such a judgment were to issue prior to the election date, the presiding judge may well choose not to quash the impugned decision, as quashing the decision would have the effect of stopping the election. Instead, the Court might grant only the appropriate declaratory relief.

Indeed, the applicants have conceded that it was not open to them to ask for a interlocutory injunction to stay the election, recognizing that such an application would not have succeeded as the balance of convenience would always favour the election proceeding. 28 As to the other relief sought by the applicants, they admit that refusing to expedite the hearing will not render the determination of the declaratory relief moot. The applicants maintain, moreover, that if the hearing is not expedited, they will nevertheless pursue the adjudication of their declarations of invalidity after the elections are held.

They point out that there is similar legislation in the provinces and the outcome of the Court's determination as to the legality of the impugned actions, in this case, will inform and guide the action of governments in future elections. Analysis [ 25 ] In my view it is highly speculative that the same problems encountered in the 2008 election will arise during the next election. Given Alberta ’ s response to the CEO ’ s 2008 Report and pending legislation to set fixed election dates, this matter in my opinion is moot.

Discretion [26] Taft argues that if the matter is deemed to be moot, the Court should nevertheless exercise its discretion to address the merits,relying on Borowski and Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3: 18 Although this appeal is moot, the considerations in Borowski, supra, suggest that it should be heard.

Writing for the Court, SopinkaJ. outlined the following criteria for courts to consider in exercising discretion to hear a moot case (at pp. 358-63): (1) the presence of an adversarial context; (2) the concern for judicial economy; and (3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. ... 20 As to the concern for conserving scarce judicial resources, this Court has many times noted that such an expenditure is warranted incases that raise important issues but are evasive of review (Borowski, supra, at p. 360; International Brotherhood of ElectricalWorkers, Local Union 2085 v.

Winnipeg Builders' Exchange, (SCC), [1967] S.C.R. 628; New Brunswick (Ministerof Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46). The present appeal raises an importantquestion about the jurisdiction of superior courts to order what may be an effective remedy in some classes of cases.

To the extent thatthe reporting order is effective, it will tend to evade review since parties may rapidly comply with orders before an appeal is heard. 21 Moreover, in deciding whether to hear a moot case, courts must weigh the expenditure of scarce judicial resources against "thesocial cost of continued uncertainty in the law" (Borowski, supra, at p. 361). The social cost of uncertainty as to the available Charterremedies is high.

The Charter is designed to protect those who are most vulnerable to the dangers of majority rule; this aspect of the Charter's purpose is evident in the provisions protecting official minority language education rights. If the Court leaves this matterundecided and courts are left under a misapprehension as to the tools available to ensure that government behaviour conforms with the Charter, the obvious danger is less than full protection of Charter rights. Thus, the expenditure of judicial resources is warranted in thepresent case despite the fact that the appeal may be moot.

The decision of this Court will provide guidance on the important question ofthe nature and extent of remedies under s. 24 of the Charter in similar cases. 22 Finally, the Court is neither departing from its traditional role as an adjudicator nor intruding upon the legislative or executivesphere by deciding to hear this case (Borowski, supra, at p. 362). The question of what remedies are available under the Charter fallssquarely within the expertise of the Court and is not susceptible to legislative or executive pronouncement.

Furthermore, unlike inBorowski, supra, at p. 365, the appellants are not seeking an answer to an abstract question on the

interpretation of the Charter; they arenot "turn[ing] this appeal into a private reference". The Attorney General of Nova Scotia appealed successfully against an order madeagainst it by a superior court. Although the immediate grievances of the appellants have now been addressed, deciding in this case willassist the parties to this action, and others in similar circumstances, in their ongoing relationships. [27] The Respondents argue that the Borowski criteria are not met in this case. They point to cases such as Haig v.

Canada(Chief Electoral Officer), (SCC), [1993] 2 SCR 995 in support of their argument that the Court should decline toexercise its discretion in this case to grant declaratory relief: 127 ...It is true that often the judicial

interpretation of a statute can lead to the granting of a declaratory order by the Court.Nonetheless, declaratory relief is a matter of discretion which should only be exercised in a clear case. The referendum is now long pastand in the circumstances presented in this case declaratory relief should not be granted. Analysis [28] The Borowski criteria are the following:

(1) the presence of an adversarial context; (2) the concern for judicial economy; and (3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework. [ 29 ] The first criterion is met by virtue of these proceedings. As in Borowski , the second factor (concern for judicial economy) is not significant, since this Court has already heard the entire application.

It is really the third factor which merits serious consideration in this case. [ 30 ] It bears noting in this regard that in oral argument Taft ’ s counsel tied almost all of the alleged s. 3 breaches to the late appointment of ROs and argued that the legislative amendments do not eliminate the possibility of late appointments in the future. However, in my view the standard is not one of possibilities but one of probabilities. [ 31 ] Taft accurately points out that no explanation has ever been provided for the very late appointment of ROs in the lead up to the 2008 election.

Nevertheless, I find it is speculative in light of the legislative amendments since that time to conclude that such late appointments will occur in the future. Further, given the independence of the CEO, it is unlikely that any future delay could be construed as a partisan act. [ 32 ] Bearing in mind the Court ’ s role as the adjudicative branch in the political framework, I find in the circumstances that it would not be appropriate to deal with the merits of the application. [ 33 ] Accordingly, I decline to exercise my discretion to consider this matter on its merits.

Declaratory Relief [ 34 ] It is worth noting that the basis for exercising discretion to hear the matter on its merits notwithstanding a finding of mootness is interwoven with the basis for exercising discretion to grant declaratory relief, and in this case the two analyses are virtually indistinguishable. Accordingly, for the reasons set out above, even if I were to address the matter on the merits and find a breach of s. 3, I would decline to exercise my discretion to grant declaratory relief as I find that it would serve no useful purpose in light of the changes to Alberta ’ s electoral landscape since 2008.

Conclusion [ 35 ] Given my findings on mootness, discretion and declaratory relief, this Court declines to deal with the merits of Taft ’ s s. 3 argument. In my view, legislative changes since 2008 will likely alleviate future problems along the lines of those highlighted by Taft. Costs [ 36 ] In my opinion this is a proper case to find that the parties bear their own costs.

Heard on the 23 rd and 24 th days of November, 2011. Dated at the City of Edmonton, Alberta this 14 th day of December, 2011 M.A. Binder J.C.Q.B.A. Appearances: Grant S. Dunlop Ogilvie LLP for the Applicant Robert Normey Alberta Justice and Attorney General for the Respondent, Her Majesty the Queen in Right of Alberta William W. Shores, Q.C. Shores Jardine LLP for the Respondent, The Chief Electoral Officer of Alberta