Judge rules N.S. chief electoral officer was wrong to order removal of byelection signs

A Nova Scotia Supreme Court judge has ruled that Nova Scotia's chief electoral officer had no authority to order the Liberal Party of Nova Scotia to take down signs and stop distributing campaign material she deemed misleading to voters in the riding of Preston.

In a ruling released Friday, Justice Josh Arnold criticized Dorothy Rice's actions during last August's Preston byelection.

He ruled she misinterpreted the province's Elections Act, had no authority to order campaign material be removed, nor the power to announce she was going to police when the Liberals refused to comply with her demands.

Liberal Leader Zach Churchill said the ruling validates the stand his party took to challenge Rice's order.

"We did feel we were being treated unfairly," Churchill said Friday. "We saw the Conservative government putting up signs that we thought were misleading around the carbon tax and we put up signs that were about a local issue that people cared about and wanted our candidate to advocate on.

"We were told we we couldn't do that. And certainly we didn't think that was fair and we're happy that the judge agreed with us on that."

In the weeks before Premier Tim Houston called the byelection, the Nova Scotia government ran ads attacking the federal government's carbon tax, blaming the Trudeau Liberals for pushing up the price of gasoline by 17 cents a litre.

The government ended that campaign early after the chief electoral officer, acting on a complaint by the provincial Liberals that saw it as interference in the election.

This week's court ruling stems from a complaint filed by the PC Party of Nova Scotia to the chief electoral officer on July 28.

The party alleged Liberal campaign signs and door-to-door flyers violated a section of the Elections Act that makes it an offence to knowingly make, distribute, or publish "a false statement of fact about a candidate's character or conduct for the purpose of influencing the election."

The PCs were unhappy the Liberals were using the threat of a potential construction and demolition waste processing facility being situated in the riding as part of their pitch to voters. The Liberals said the facility would "harm this riding" and implied Nova Scotia's environment minister was ignoring the issue.

Nova Scotia's chief electoral officer has ordered the Liberal campaign in Preston to take down ads that she has judged to be misleading about the PC government's involvement in a proposed dump in the riding.
The chief electoral officer ordered the Liberal campaign in Preston to take down ads that she judged to be misleading. (PC Party of Nova Scotia)

Rice sided with the PCs and ordered the Liberal campaign to take down the signs and stop distributing material that referenced the dump.

But the party refused, prompting the chief electoral officer to announce she thought there had been a breach of the law and that she was "engaging the services of the Provincial RCMP to assist me."

Arnold admonished Rice for those decisions, ruling she interpreted the law "far beyond any reasonable construction of the language" of the Elections Act.

He ruled she had no power to order the Liberals to stop using the material.

"Nowhere in the investigation and enforcement provision (of the law) is there language which suggests that the CEO (Chief Electoral Officer) has the unilateral power to make orders for compliance in the event of an alleged violation of the Elections Act," Arnold wrote in his decision. "As such the CEO could not reasonably interpret the Elections Act to authorize the order to remove the materials."

Twila Grosse, the province's new minister responsbile for the public service and minister reponsible for African Nova Scotian affairs, is Nova Scotia's first Black female cabinet minister.
Twila Grosse won the bylection for the PCs. (CBC)

As for Rice's decision to issue a news release about her seeking the help of police, Arnold said that while the law allows the chief electoral officer to announce the outcome of an investigation, it does not authorize the CEO to make public the start of an investigation.

"I infer that this reflects a legislative intention to prevent investigations from affecting election campaigns," he said.

"The announcement by the CEO here, made less than a week before the election, in the face of a protest that the order was wrong, was, in my view exactly the type of public statement the Elections Act seeks to avoid — one that risks impacting the campaign, but which is ultimately unjustified."

In his ruling, Arnold also sided with the Liberals who argued the chief electoral officer had to balance her actions with the rights guaranteed by the Canadian Charter of Rights and Freedoms, and in this case specifically the freedom of expression provisions.

Arnold ruled: "In this case, it is inescapable that a purported order imposing limits on political speech limits Charter rights."

Chief electoral officer issues statement

In a media release Friday afternoon, Rice issued a response to the findings of the judicial review.

"Elections Nova Scotia accepts the judicial review findings," Rice said. "We will carefully review the ruling and apply it going forward."

The ruling doesn't talk about any remedy beyond the costs of this court action.

The Liberals seem satisfied they've made their point.

"Certainly, in this case, the chief electoral officer did act, according to the judge, outside of the scope of the law and didn't follow appropriate process," said Churchill. " And we think that negatively impacted our party and people's impression of us, in an unfair way.

"Certainly that's impacted my level of confidence and, hopefully, this decision will help ensure that something like that doesn't happen again to any political party or any candidate."

PC candidate Twila Grosse won the race by 805 votes. Liberal Carlo Simmons finished third behind Colter Simmonds of the NDP.