Administering Electoral Democracy: The Administrative Constitutionalism of Canadian Federal Election Law
Abstract
In Canada, federal and provincial elections are administrated by an independent, non-partisan election management body (EMB), staffed by professional election administrators (EAs) drawn from the civil service. As a part of the executive branch of government, EAs routinely implement legislation, design policies and perform an adjudicative function among their many tasks. In addition to these responsibilities, EAs must engage with constitutional law, as their task of administering federal elections, by-elections and referenda are central to section 3 of the Canadian Charter of Rights and Freedoms. Yet, we often ignore this constitutional dimension of EAs’ work. This dissertation addresses this gap. Using the theoretical lens of administrative constitutionalism, I examine and analyze the ways in which EAs “administer the constitution”, specifically as it relates to democratic rights and free expression. Each of the three articles takes a unique approach to this central research problem. The first looks at the source of EAs authority – the Canada Elections Act – suggesting that there is scope to consider the Act as “quasi-constitutional” because of the constitutional imperatives it contains in the expression of sections 3 and 2(b) of the Charter. The second article considers the role of EAs in upholding not just individual rights, but also structural (collective) rights related to the administration of elections. The final article looks at a unique instrument of constitutional interpretation – Charter values – as a way through which the academic and legal community can further substantiate the “constitutionalized” role of EAs. Using the theory of administrative constitutionalism as guidance, these chapters point to a new way of considering the role of EAs as more than just administrative actors and suggests that the constitutional dimensions of their work in the preservation of free, impartial and independent elections bears clear acknowledgement and deference from the legislative and judicial branches of government.