A candidate is briefly jailed mid-campaign. Can they still run?

An odd situation in the Northwest Territories riding is testing an ambiguous paragraph of the legislation that governs Canada’s federal elections.

The Green Party has assigned deputy leader Rainbow Eyes (also known as Angela Davidson) to be its candidate in the NWT.

She hasn’t visited the territory and did not take part in the only election debate held so far. Compared to other candidates, she has had little to say about issues affecting the North in this election campaign.

That may be partly because she has been wrapped up in a court case in British Columbia, where she lives.

Rainbow Eyes was sentenced last year to 60 days’ jail for criminal contempt while protesting old-growth logging in the province in 2021.

This month, an appeal court slightly reduced that sentence. After the appeal court delivered its ruling, Rainbow Eyes was sent to jail for a brief period from April 9 until April 10, when she was released again on bail. Her lawyer is asking the Supreme Court of Canada to intervene.

In videos published to her Facebook page, Rainbow Eyes says she spent 24 hours in jail.

Here’s the problem: the Canada Elections Act, which governs how federal elections are run, states an individual imprisoned in a correctional facility is not eligible to be a candidate.

Rainbow Eyes just spent time imprisoned in a correctional facility in the middle of the campaign.

So is she now ineligible?

Elections Canada unsure

Elections Canada, which administers the federal election, has spent days coming up with an answer to this.

A spokesperson for Elections Canada termed this a “once in a century” situation where something happens that does not fit neatly into the legislation.

Rainbow Eyes was not in prison when she filed her paperwork to run in the Northwest Territories, nor on the day that nominations closed and Elections Canada formally accepted her candidacy. She was then imprisoned in a correctional facility and is now back out. Unless something changes, she will remain out of jail until and beyond election day.

Yet the legislation does not define when, or how long, you have to be in prison to end up being ineligible. The law only states “a person who is imprisoned in a correctional facility” is not eligible to run for office.

Initially, Elections Canada suggested Rainbow Eyes was no longer eligible as a result of her jail time.

“Pursuant to the Canada Elections Act, an individual imprisoned in a correctional facility is not eligible to be a candidate. As such, a candidate who is imprisoned at any time during their candidacy is not eligible,” a spokesperson stated on Wednesday.

That was news to the Green Party.

A day later, a spokesperson for the federal party said they were “curious from whom you got your guidance” when Cabin Radio forwarded on Elections Canada’s interpretation of the legislation.

The party said it disputed that view of how the law is worded and would be back in touch.

After two days without any update, pressed for a more detailed response, the party responded: “She’s on the ballot.”

But Elections Canada had already said Rainbow Eyes would be on the ballot come what may at this point – and that would not necessarily reflect whether she was eligible or not. (“We see her as an eligible candidate,” the Green Party added when asked to elaborate.)

By Saturday, in a further twist, Elections Canada had changed its position.

The situation now

In a fresh email to Cabin Radio on Saturday afternoon, a spokesperson said Elections Canada’s view is now that a court would have to decide the matter if anyone chose to raise it.

“If a confirmed candidate is briefly incarcerated during the election period, but is not incarcerated on polling day, and that candidate is elected, it would be for the court, on application, to determine whether the result is null and void,” Elections Canada stated in its latest response.

That means this issue may not be settled with certainty, as the likelihood of Rainbow Eyes being elected appears slim.

The Green Party’s all-time best showing in the territory was 2019, when lawyer Paul Falvo – a relatively well-known local candidate – took about 11 percent of the vote. Even then, Falvo finished fourth.

A similar or worse performance by Rainbow Eyes would mean a court case is unlikely to materialize, though some voters may be unsettled by the news that it’s not clear whether their vote for the candidate would ultimately count.

Other parties are understood to have been concerned enough over the past week to have lawyers scrutinize the legislation.

Rainbow Eyes, meanwhile, hopes to secure a Supreme Court of Canada hearing in September or October and is focused on what she says was the racial targeting of logging protesters that resulted in her conviction.

“The main thing is there’s over-incarceration of Indigenous women. This is it. I’m it,” she said in a video to supporters this week.

“A big thing about being in prison for the past 24 hours … what we’re doing together isn’t going to be easy. Transformation for humanity is going to put us in the most uncomfortable places.”

She said an acquaintance had told her: “At least in prison you’ll have peace of mind, because you’ve done the right thing.”