Certifying "Impracticability" under Section 59 of the Canada Elections Act – CEO Appearance on Bill C-19, An Act to amend the Canada Elections Act (COVID-19 response)
Section 59 of the Canada Elections Act (CEA) allows the Governor in Council (GiC) to postpone or cancel an election in an electoral district (ED) where the Chief Electoral Officer (CEO) certifies that it is "impracticable" to administer the election. The decision to certify belongs to the CEO alone.
While public health restrictions or health incidents do not in and by themselves make an election impracticable, they may create a situation where the voting operations are impracticable.
"Impracticability" may result, for example, from an unanticipated absence of staff or loss of polling sites for which Elections Canada is unable to compensate.
Where the absence of staff or loss of polling sites is not total, "impracticability" will be determined contextually in relation to factors relevant to the particular ED.
Section 59 has never been invoked before. The provision was introduced into the CEA in 1952 in response to severe flooding in Manitoba during the 1949 election.
The provision refers to "floods, fires or other disasters" as the trigger for invoking section 59 and when the provision was first included in the CEA, Parliament was primarily concerned with natural disasters. That said, the scope of the power is not limited to natural disasters.
The application of section 59 pertains to an ED. There is no mechanism to withdraw the writs for a national election.
Section 59 allows for a brief postponement of the election for up to seven days, or a more substantial delay of up to three months in which case the writ is withdrawn and a new writ is issued in an ED.
The CEO's role is limited to certifying that it has become impracticable to administer the provisions of the CEA. Only the GiC (the Governor General on the advice of cabinet) has the authority to invoke section 59 and to decide whether to postpone polling day or withdraw the writ.
The GiC will determine when a new writ will be issued and when voting will occur. The new election period may not be longer than 51 days – the same maximum duration in effect for any election period.
Section 59 in the context of a Pandemic
The "impracticability" analysis will focus on voting at ordinary polls. While many electors will vote at advance polls and by special ballot, ordinary polls are the last opportunity to vote and the primary voting channel for Canadians.
The test to ascertain that the holding of an election is "impractical" in an ED:
There is not enough ordinary polling stations available where electors can vote safely; or
There is not enough election officers to operate the minimum number of available polling stations where one can vote safely; or
Electors cannot attend to their polling station without risk to their safety or without infringing on local health directives.
The minimum viable amount of available polling stations or available election officers will vary across EDs and depend on local circumstances. The CEO will make a decision based on information obtained from local returning officers.
The CEO will evaluate "impracticability" against a minimum service level rather than the high service level Canadian electors may be accustomed to. This means, for example, that long wait times at the polls, or additional distance to the polling places may not be sufficient to constitute "impracticability".
All contingency measures and all administrative and legislative flexibility will be exhausted before "impracticability" is certified.
Certifying "impracticability" under section 59 is a last resort. The CEO has a variety of tools available to respond to unforeseen events including administrative flexibility and the power to adapt the CEA in certain circumstances. All contingency plans will be exhausted before the CEO certifies impracticability.