By-election in Akulliq can't be held until late November

Justice Earl Johnson reserved decision this past Tuesday on whether the Nunavut Elections Act violates Jack Anawak's charter rights.

"I will do my best to get a judgment out as soon as possible," Johnson told an Iqaluit courtroom Oct. 14. That had yet to happen as of the Nunatsiaq News press-time this week.

Jack Anawak filed the challenge earlier this month after Sandy Kusugak, Nunavut's chief electoral office, ruled he was ineligible to run in the Oct. 27 territorial election because he had not lived in Nunavut for the full 12 months leading up to the election.

The challenge forced Elections Nunavut to cancel the Oct. 27 vote in Akulliq, the riding made up of Kugaaruk and Repulse Bay, which Anawak wanted to run in.

Once the court case is resolved, Elections Nunavut will have to hold a by-election to fill the seat. Any campaign must last 36 days, so residents in Akulliq won't likely know who their MLA will be until some time in late November.

Johnson said he wanted to make a decision as quickly as possible, because the newly-elected batch of MLAs are scheduled to meet in early November to select a premier and executive council.

The judge must decide if the Elections Act violates Anawak's charter rights by depriving the former MLA, MP and ambassador of circumpolar affairs of his equality rights and right to vote.

In court Tuesday, Steven Cooper, Anawak's Edmonton-based lawyer, who took part by telephone, argued that Nunavut's election residency requirements are the most restrictive in the country.

Cooper said they go beyond Section One of the charter, which allows breaches of charter rights "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The Elections Act requires that voters live in Nunavut for one year before an election to be eligible to vote. But Cooper argued Anawak, as an Inuk, never gave up his Nunavut residency when he moved to Ottawa to serve as an ambassador from 2003 to 2006.

Anawak's appeal of Kusugak's ruling was rushed by a two-day appeals period, something Cooper also said was unfair. Cooper asked Johnson to strike down parts of the Elections Act that prevented Anawak from running, but said it was up to the judge to decide which ones.

Cooper said the Elections Act aims to encourage participation, but is hamstrung by its own regulations. He pointed out that Anawak was eligible to vote in that day's federal election and is not eligible to vote in Ontario.

And he noted provisions that allow prisoners to vote and people in remote camps to cast ballots by radiophone.

"Surely a prisoner should not have more rights than an ambassador from Nunavut," Cooper said.

That drew a roll of the eyes from Patrick Orr, the lawyer for Elections Nunavut. Orr, who also drafted Nunavut's Elections Act, said the 12-month residency requirement serves as a balance to the relatively liberal rules that apply to voters once they're eligible.

Once someone has lived in Nunavut for a year, "there's almost no barrier" to voting, Orr said. A voter doesn't even have to live in a riding for a certain amount of time before being eligible to vote there, as in some provinces, he added.

"Once you're in… you're free to be a candidate. All that's required to acquire residency in Nunavut is to actually live here."

Orr also said Anawak is claiming rights as an Inuk that he's not entitled to when it comes to voting for a public government, which represents everyone equally.

Orr and Lorraine Land, a lawyer for the Government of Nunavut, both cited numerous cases of restrictions on voting rights that are allowed as legitimate exceptions to the charter.

Land argued that such restrictions are justified in Nunavut where large numbers of transient workers combined with ridings with small numbers of voters mean election results could be more easily affected by the votes of people who have not lived here for long.