Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R.
519, 2002 SCC 68
Richard Sauvé Appellant
v.
The Attorney General of Canada, the Chief Electoral Officer
of Canada and the Solicitor General of Canada Respondents
and between
Sheldon McCorrister, Chairman, Lloyd Knezacek, Vice Chairman,
on their own behalf and on behalf of the Stony Mountain
Institution Inmate Welfare Committee, and Clair Woodhouse,
Chairman, Aaron Spence, Vice Chairman, on their own behalf and
on behalf of the Native Brotherhood Organization of Stony
Mountain Institution, and Serge Bélanger, Emile A. Bear
and Randy Opoonechaw Appellants
v.
The Attorney General of Canada Respondent
and
The Attorney General for Alberta, the Attorney General of
Manitoba, the Canadian Association of Elizabeth Fry Societies,
the John Howard Society of Canada, the British Columbia Civil
Liberties Association, the Aboriginal Legal Services of Toronto Inc.
and the Canadian Bar Association Interveners
Indexed as: Sauvé v. Canada (Chief Electoral
Officer)
Neutral citation: 2002 SCC 68.
File No.: 27677.
2001: December 10; 2002: October 31.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Right to
vote — Prisoners — Canada Elections Act provision disqualifying persons
imprisoned in correctional institution serving sentences of two years or more
from voting in federal elections — Crown conceding that provision infringes
right to vote — Whether infringement justified — Canadian Charter of Rights and
Freedoms, ss. 1 , 3 — Canada Elections Act, R.S.C. 1985, c. E‑2,
s. 51(e).
Constitutional law — Charter of Rights — Equality
rights — Prisoners — Canada Elections Act provision disqualifying persons
imprisoned in correctional institution serving sentences of two years or more
from voting in federal elections — Whether provision infringes equality
rights — Canadian Charter of Rights and Freedoms, s. 15(1) — Canada
Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Elections — Disqualifications of electors —
Prisoners — Canada Elections Act provision disqualifying persons imprisoned in
correctional institution serving sentences of two years or more from voting in
federal elections — Whether provision constitutional — Canadian Charter of
Rights and Freedoms, ss. 1 , 3 , 15(1) — Canada Elections Act,
R.S.C. 1985, c. E-2, s. 51(e).
Section 51 (e) of the Canada Elections Act
denies the right to vote to “[e]very person who is imprisoned in a correctional
institution serving a sentence of two years or more.” The constitutionality of
s. 51 (e) was challenged on the grounds that it contravenes ss. 3
and 15(1) of the Canadian Charter of Rights and Freedoms and is not
demonstrably justified under s. 1 . In the Federal Court, Trial
Division, the Crown conceded that s. 51 (e) infringes the right to
vote guaranteed by s. 3 of the Charter and the trial judge found
that the infringement was not justified under s. 1 of the Charter .
The majority of the Federal Court of Appeal set aside the decision and upheld
the constitutionality of s. 51 (e). The court held that the
infringement of s. 3 was justifiable in a free and democratic society and
that s. 51 (e) did not infringe the equality rights guaranteed by
s. 15(1) of the Charter .
Held (L’Heureux‑Dubé,
Gonthier, Major and Bastarache JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and
Iacobucci, Binnie, Arbour and LeBel JJ.: To justify the infringement of a Charter
right under s. 1 , the government must show that the infringement achieves
a constitutionally valid purpose or objective, and that the chosen means are
reasonable and demonstrably justified. The government’s argument that denying
the right to vote to penitentiary inmates requires deference because it is a matter
of social and political philosophy is rejected. While deference may be
appropriate on a decision involving competing social and political policies, it
is not appropriate on a decision to limit fundamental rights. The right to
vote is fundamental to our democracy and the rule of law and cannot be lightly
set aside. Limits on it require not deference, but careful examination. The
framers of the Charter signaled the special importance of this right not
only by its broad, untrammeled language, but by exempting it from legislative
override under s. 33 's notwithstanding clause. The argument that the
philosophically‑based or symbolic nature of the objectives in itself
commands deference is also rejected. Parliament cannot use lofty objectives to
shield legislation from Charter scrutiny. Here, s. 51(e) is
not justified under s. 1 of the Charter .
The government has failed to identify particular
problems that require denying the right to vote, making it hard to conclude
that the denial is directed at a pressing and substantial purpose. In the
absence of a specific problem, the government asserts two broad objectives for
s. 51(e): (1) to enhance civic responsibility and respect for the
rule of law; and (2) to provide additional punishment or “enhance the general
purposes of the criminal sanction”. Vague and symbolic objectives, however,
make the justification analysis difficult. The first objective could be
asserted of virtually every criminal law and many non‑criminal measures.
Concerning the second objective, nothing in the record discloses precisely why
Parliament felt that more punishment was required for this particular class of
prisoner, or what additional objectives Parliament hoped to achieve by this
punishment that were not accomplished by the sentences already imposed.
Nevertheless, rather than dismissing the government’s objectives outright,
prudence suggests that we proceed to the proportionality inquiry.
Section 51(e) does not meet the
proportionality test. In particular, the government fails to establish a
rational connection between s. 51(e)’s denial of the right to vote
and its stated objectives. With respect to the first objective of promoting
civic responsibility and respect for the law, denying penitentiary inmates the
right to vote is more likely to send messages that undermine respect for the
law and democracy than messages that enhance those values. The legitimacy of
the law and the obligation to obey the law flow directly from the right of
every citizen to vote. To deny prisoners the right to vote is to lose an
important means of teaching them democratic values and social responsibility.
The government’s novel political theory that would permit elected
representatives to disenfranchise a segment of the population finds no place in
a democracy built upon principles of inclusiveness, equality, and citizen
participation. That not all self‑proclaimed democracies adhere to this
conclusion says little about what the Canadian vision of democracy embodied in
the Charter permits. Moreover, the argument that only those who respect
the law should participate in the political process cannot be accepted. Denial
of the right to vote on the basis of attributed moral unworthiness is
inconsistent with the respect for the dignity of every person that lies at the
heart of Canadian democracy and the Charter . It also runs counter to
the plain words of s. 3 of the Charter , its exclusion from the
s. 33 override, and the idea that laws command obedience because they are
made by those whose conduct they govern.
With respect to the second objective of imposing
appropriate punishment, the government offered no credible theory about why it
should be allowed to deny a fundamental democratic right as a form of state
punishment. Denying the right to vote does not comply with the requirements
for legitimate punishment — namely, that punishment must not be arbitrary and
must serve a valid criminal law purpose. Absence of arbitrariness requires
that punishment be tailored to the acts and circumstances of the individual
offender. Section 51(e) qua punishment bears little
relation to the offender’s particular crime. As to a legitimate penal
purpose, neither the record nor common sense supports the claim that
disenfranchisement deters crime or rehabilitates criminals. By imposing a
blanket punishment on all penitentiary inmates regardless of the particular
crimes they committed, the harm they caused, or the normative character of
their conduct, s. 51(e) does not meet the requirements of
denunciatory, retributive punishment, and is not rationally connected to the
government’s stated goal.
The impugned provision does not minimally impair the
right to vote. Section 51(e) is too broad, catching many people
who, on the government’s own theory, should not be caught. Section 51(e)
cannot be saved by the mere fact that it is less restrictive than a blanket
exclusion of all inmates from the franchise.
Lastly, the negative effects of denying citizens the
right to vote would greatly outweigh the tenuous benefits that might ensue.
Denying prisoners the right to vote imposes negative costs on prisoners and on
the penal system. It removes a route to social development and undermines
correctional law and policy directed towards rehabilitation and integration.
In light of the disproportionate number of Aboriginal people in penitentiaries,
the negative effects of s. 51(e) upon prisoners have a
disproportionate impact on Canada’s already disadvantaged Aboriginal
population.
Since s. 51(e) unjustifiably infringes
s. 3 of the Charter , it is unnecessary to consider the alternative
argument that it infringes the equality guarantee of s. 15(1) of the Charter .
Per L’Heureux‑Dubé,
Gonthier, Major and Bastarache JJ. (dissenting): This case rests on
philosophical, political and social considerations which are not capable of
“scientific proof”. It involves justifications for and against the limitation
of the right to vote which are based upon axiomatic arguments of principle or value
statements. When faced with such justifications, this Court ought to turn to
the text of s. 1 of the Charter and to the basic principles which
undergird both s. 1 and the relationship that provision has with the
rights and freedoms protected within the Charter . Particularly,
s. 1 of the Charter requires that this Court look to the fact that
there may be different social or political philosophies upon which
justifications for or against the limitations of rights may be based. In such
a context, where this Court is presented with competing social or political
philosophies relating to the right to vote, it is not by merely approving or
preferring one that the other is necessarily disproved or shown not to survive Charter
scrutiny. If the social or political philosophy advanced by Parliament
reasonably justifies a limitation of the right in the context of a free and
democratic society, then it ought to be upheld as constitutional. In the realm
of competing social or political philosophies, reasonableness is the
predominant s. 1 justification consideration. Section 1 of the Charter
does not constrain Parliament or authorize this Court to prioritize one
reasonable social or political philosophy over reasonable others, but only
empowers this Court to strike down those limitations which are not reasonable
and which cannot be justified in a free and democratic society. The decision
before this Court is therefore not whether or not Parliament has made a proper
policy decision, but whether the policy position chosen by Parliament is an
acceptable choice amongst those permitted under the Charter .
Since this case is about evaluating choices regarding
social or political philosophies and about shaping and giving practical
application to values, especially values that may lie outside the Charter
but are of fundamental importance to Canadians, the “dialogue” between courts
and Parliament is of particular importance. The dialogue metaphor does not
signal a lowering of the s. 1 justification standard. It simply suggests
that when, after a full and rigorous s. 1 analysis, Parliament has satisfied the
court that it has established a reasonable limit to a right that is
demonstrably justified in a free and democratic society, the dialogue ends. In
this case, ‘dialogue’ has existed insofar as Parliament had been addressing,
since well before the Federal Court of Appeal decision, an evaluation of the
right to vote, and specifically, the issue of prisoner disenfranchisement.
This evaluation was obviously undertaken with the many cases concerning
prisoner disenfranchisement that had occurred up to that point in mind. In
enacting s. 51 (e) of the Canada Elections Act and in
providing a justification of that provision before the courts, Parliament has
indicated that it has drawn a line.
In this case, while it has been conceded that
s. 51 (e) of the Canada Elections Act infringes s. 3 of
the Charter , the infringement is a reasonable limit that is demonstrably
justified in a free and democratic society. The objectives of s. 51 (e)
are pressing and substantial. Both objectives are based upon a reasonable and
rational social or political philosophy. The first objective, that of
enhancing civic responsibility and respect for the rule of law, relates to the
promotion of good citizenship. The social rejection of serious crime reflects
a moral line which safeguards the social contract and the rule of law and
bolsters the importance of the nexus between individuals and the community.
The “promotion of civic responsibility” may be abstract or symbolic, but
symbolic or abstract purposes can be valid of their own accord and must not be
downplayed simply for the reason of their being symbolic. The second objective
is the enhancement of the general purposes of the criminal sanction.
Section 51 (e) clearly has a punitive aspect with a retributive
function. It is a valid objective for Parliament to develop appropriate
sanctions and punishments for serious crime. The disenfranchisement is a civil
disability arising from the criminal conviction.
Section 51 (e) meets the proportionality
test. First, the impugned legislation is rationally connected to the
objectives. While a causal relationship between disenfranchising prisoners and
the objectives is not empirically demonstrable, reason, logic and common sense,
as well as extensive expert evidence, support a conclusion that there is a
rational connection between disenfranchising offenders incarcerated for serious
crimes and the objectives of promoting civic responsibility and the rule of law
and the enhancement of the general objectives of the penal sanction. With
respect to the first objective, the removal of the right to vote from serious
incarcerated criminals does no injury to, but rather recognizes, their
dignity. Further, the disenfranchisement of serious criminal offenders serves
to deliver a message to both the community and the offenders themselves that
serious criminal activity will not be tolerated by the community. Society may
choose to curtail temporarily the availability of the vote to serious criminals
to insist that civic responsibility and respect for the rule of law, as goals
worthy of pursuit, are prerequisites to democratic participation. With respect
to the second objective, the disenfranchisement is carefully tailored to apply
to perpetrators of serious crimes, and there is evidence in the record
indicating that the denial of the right to vote is perceived as meaningful by
the prisoners themselves and can therefore contribute to the rehabilitation of
prisoners. Lastly, many other democracies have, by virtue of choosing some
form of prisoner disenfranchisement, also identified a connection between
objectives similar to those advanced in the case at bar and the means of
prisoner disenfranchisement.
Second, the impairment of the Charter right is
minimal. Minimal impairment is about analyzing the line that has been drawn.
This analysis does not require the Crown to have adopted the absolutely least
intrusive means for promoting the purpose, although it does require that the
Crown prefer a significantly less intrusive means if it is of equal
effectiveness. Here, no less intrusive measure would be equally effective.
Only “serious offenders”, as determined by Parliament, are subject to
disenfranchisement. Since Parliament has drawn a two‑year cut off line
which identifies which incarcerated offenders have committed serious enough
crimes to warrant being deprived of the vote, any alternative line will not be
of equal effectiveness. Equal effectiveness is a dimension of the analysis
that should not be underemphasized, as it relates directly to Parliament’s
ability to pursue its legitimate objectives effectively. Any other line
insisted upon amounts to second‑guessing Parliament as to what
constitutes a “serious” crime. The provision is reasonably tailored insofar as
disenfranchisement reflects the length of the sentence and actual
incarceration, which, in turn, reflect the seriousness of the crime perpetrated
and the intended progress towards the ultimate goals of rehabilitation and
reintegration. Section 51 (e) is not arbitrary: it is
related directly to particular categories of conduct. The two‑year cut
off line also reflects several practical considerations. Further, since this
Court gave the impression that it was up to Parliament to do exactly this after
the first Sauvé case was heard in 1993, there is a need for deference to
Parliament in its drawing of a line. The analysis of social and political
philosophies and the accommodation of values in the context of the Charter
must be sensitive to the fact that there may be many possible reasonable and
rational balances. Line drawing, amongst a range of acceptable alternatives,
is for Parliament, especially in this case where any alternate line would not
be equally effective, in that the line drawn reflects Parliament’s identification
of what amounts to serious criminal activity.
Third, when the objectives and the salutary effects
are viewed in the totality of the context, they outweigh the temporary
disenfranchisement of the serious criminal offender. The enactment of the
measure is itself a salutary effect. The legislation intrinsically expresses
societal values in relation to serious criminal behaviour and the right to vote
in our society. Value emerges from the signal or message that those who commit
serious crimes will temporarily lose one aspect of the political equality of
citizens. Furthermore, the temporary disenfranchisement is perceived as
meaningful by the offenders themselves and could have an ongoing positive
rehabilitative effect. The most obvious deleterious effect of s. 51 (e)
is the potential temporary loss of the vote. This, however, must be considered
in light of Parliament’s objectives, as illuminated by the totality of the
context. The statistical data mentioned by the Federal Court of Appeal
indicate that the provision catches serious and repeat offenders and that most
prisoners will only be deprived of participation in one election. Because the
duration of the disenfranchisement is directly related to the duration of
incarceration, a serious criminal offender may never actually be denied the
opportunity to vote if there is no election during the time he is
incarcerated. In light of the special context of this case — that the
justification advanced by Parliament is rooted in a social or political
philosophy that is not susceptible to proof in the traditional sense —
deference is appropriate since the impugned provision raises questions of penal
philosophy and policy.
Section 51 (e) does not infringe
s. 15(1) of the Charter . Even if it were presumed that the
legislation draws a distinction based on personal characteristics, prisoners do
not constitute a group protected by analogous or enumerated grounds under
s. 15(1) . The fact of being incarcerated does not arise because of a
stereotypical application of a presumed group characteristic. The status of
being a prisoner is brought about by the past commission of serious criminal
offences, acts committed by the individual himself or herself. The unifying
group characteristic is past criminal behaviour. The argument that
imprisonment should be recognized as an analogous ground because of adverse
effect or impact discrimination based on the fact that Aboriginal peoples make
up a “disproportionate” percentage of prisoners must be rejected. It is not
plausible to say that the temporary disenfranchisement provision is in some way
targeted at Aboriginal people. The fact of incarceration does not necessarily
arise due to any personal attribute such as race or ethnic origin and neither
does it necessarily relate to social condition. It hinges only upon the
commission of serious criminal offences.
Cases Cited
By McLachlin C.J.
Referred to: Sauvé v. Canada (Attorney General),
[1993] 2 S.C.R. 438, aff’g (1992), 7 O.R. (3d) 481; R. v. Oakes, [1986]
1 S.C.R. 103; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295; Eldridge v. British Columbia
(Attorney General), [1997] 3 S.C.R. 624; M. v. H., [1999] 2 S.C.R.
3; Belczowski v. Canada, [1992] 2 F.C. 440; U.F.C.W., Local 1518 v.
KMart Canada Ltd., [1999] 2 S.C.R. 1083; Thomson Newspapers Co.
v. Canada (Attorney General), [1998] 1 S.C.R. 877; RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Butler, [1992]
1 S.C.R. 452; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Canadian
Disability Rights Council v. Canada, [1988] 3 F.C. 622; Muldoon v.
Canada, [1988] 3 F.C. 628; August v. Electoral Commission, 1999 (3)
SALR 1; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. M. (C.A.),
[1996] 1 S.C.R. 500; R. v. Gladue, [1999] 1 S.C.R. 688.
By Gonthier J. (dissenting)
Sauvé v. Canada (Attorney General) (1988), 66 O.R. (2d) 234, rev’d (1992), 7 O.R. (3d) 481, aff’d
[1993] 2 S.C.R. 438; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v.
Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Oakes, [1986] 1 S.C.R.
103; Reference re Provincial Electoral Boundaries (Sask.), [1991] 2
S.C.R. 158; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Harvey v. New
Brunswick (Attorney General), [1996] 2 S.C.R. 876; R. v. Mills,
[1999] 3 S.C.R. 668; Libman v. Quebec (Attorney General), [1997] 3
S.C.R. 569; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199; R. v. Butler, [1992] 1 S.C.R. 452; Irwin Toy Ltd. v.
Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference Re Public
Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Canada v.
Schmidt, [1987] 1 S.C.R. 500; Canada (Auditor General) v. Canada
(Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Vriend v.
Alberta, [1998] 1 S.C.R. 493; Re Jolivet and The Queen (1983), 1
D.L.R. (4th) 604; Gould v. Canada (Attorney General), [1984] 2
S.C.R. 124, aff’g [1984] 1 F.C. 1133, rev’g [1984] 1 F.C. 1119; Lévesque v.
Canada (Attorney General), [1986] 2 F.C. 287; Badger v. Attorney-General
of Manitoba (1986), 30 D.L.R. (4th) 108, aff’d (1986), 32 D.L.R. (4th) 310;
Badger v. Canada (Attorney General) (1988), 55 Man. R. (2d) 211, rev’d
(1988), 55 D.L.R. (4th) 177, leave to appeal refused, [1989] 1 S.C.R. v; Belczowski
v. Canada, [1991] 3 F.C. 151, aff’d [1992] 2 F.C. 440, aff’d [1993] 2
S.C.R. 438; Little Sisters Book and Art Emporium v. Canada (Minister of
Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Pearson v. Secretary of
State for the Home Department, [2001] E.W.J. No. 1566 (QL); Reference re
Manitoba Language Rights, [1985] 1 S.C.R. 721; Reference re Secession of
Quebec, [1998] 2 S.C.R. 217; Operation Dismantle Inc. v. The Queen,
[1985] 1 S.C.R. 441; Haig v. Canada, [1993] 2 S.C.R. 995; Driskell v.
Manitoba (Attorney General), [1999] 11 W.W.R. 615; Byatt v. Dykema
(1998), 158 D.L.R. (4th) 644; Richardson v. Ramirez, 418 U.S. 24 (1974);
X. v. Netherlands, Application No. 6573/74, December 19, 1974, D.R. 1,
p. 87; H. v. Netherlands, Application No. 9914/82, July 4, 1983, D.R.
33, p. 242; Holland v. Ireland, Application No. 24827/94, April 14,
1998, D.R. 93-A, p. 15; Eur. Court. H. R., Mathieu-Mohin and Clerfayt
case, judgment of 2 March 1987, Series A No. 113; Lavigne v. Ontario Public
Service Employees Union, [1991] 2 S.C.R. 211; Ross v. New
Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; McKinney v. University
of Guelph, [1990] 3 S.C.R. 229; Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Guiller
(1985), 48 C.R. (3d) 226; R. v. Luxton, [1990] 2 S.C.R. 711; R. v.
Smith, [1987] 1 S.C.R. 1045; Law v. Canada (Minister of Employment and
Immigration), [1999] 1 S.C.R. 497; M. v. H., [1999] 2 S.C.R. 3; Jackson
v. Joyceville Penitentiary, [1990] 3 F.C. 55; McKinnon v. M.N.R., 91
D.T.C. 1002; Armstrong v. R., [1996] 1 C.T.C. 2745; Mulligan v. R.,
[1997] 2 C.T.C. 2062; Wells v. R., [1998] 1 C.T.C. 2118; Olson v.
Canada, [1996] 2 F.C. 168, leave to appeal refused, [1997] 3 S.C.R. xii; Alcorn
v. Canada (Commissioner of Corrections) (1999), 163 F.T.R. 1, aff’d (2002),
95 C.R.R. (2d) 326, 2002 FCA 154; Chiarelli v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 711, rev’g [1990] 2 F.C. 299; Eldridge
v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v.
Gladue, [1999] 1 S.C.R. 688.
Statutes and Regulations Cited
Canada Elections Act, R.S.C. 1985, c. E-2, ss. 51(e) [rep. & sub. 1993,
c. 19, s. 23(2)], 51.1 [ad. idem, s. 24].
Canada Elections Act, S.C. 2000, c. 9, s. 4 (c).
Canadian Charter of Rights and
Freedoms , preamble, ss. 1 , 3 , 6(1) , 11 , 12 ,
15(1) , 33 .
Constitution Act, 1982, s. 52 .
Convention for the Protection
of Human Rights and Fundamental Freedoms, 213
U.N.T.S. 221.
Criminal Code, R.S.C. 1985, c. C-46, ss. 718.2 (e), 742.1 ,
743.1 , 743.6 .
Election Act, R.S.A. 2000, c. E-1, s. 45(c).
Election Act, R.S.B.C. 1996, c. 106, s. 30(b).
Election Act, R.S.Q., c. E-3.3, s. 273.
Election Act, S.P.E.I. 1996, c. 12.
Election Act, 1996, S.S. 1996, c. E-6.01, s. 17.
Election Statute Law Amendment Act,
1998, S.O. 1998, c. 9, s. 13.
Elections Act, R.S.M. 1987, c. E30, s. 31 [rep. & sub. 1998, c. 4,
s. 21].
Elections Act, R.S.N.B. 1973, c. E-3, s. 43(2)(e).
Elections Act, R.S.N.S. 1989, c. 140, s. 29(d) [am. 2001, c. 43, s. 13].
Elections Act, R.S.N.W.T. 1988, c. E-2, s. 27(3) [am. 1995, c. 14, s. 6].
Elections Act, R.S.Y. 1986, c. 48, s. 5(d).
Elections Act, 1991, S.N. 1992, c. E-3.1.
European Assembly Elections Act
1978 (U.K.), 1978, c. 10, Sch. 1, s. 2(1).
Human Rights Act 1998 (U.K.), 1998, c. 42.
International Covenant on Civil
and Political Rights, 999 U.N.T.S. 171,
Art. 25.
Protocol to the Convention for
the Protection of Human Rights and Fundamental Freedoms, Eur. T.S. No. 9, Art. 3 .
Representation of the People
Act 1983 (U.K.), 1983, c. 2, s. 3(1) [am.
1985, c. 50, Sch. 4, s. 1; am. 2000, c. 2, s. 2].
United States Constitution, Article 1, Fourteenth Amendment, Fifteenth Amendment,
Seventeenth Amendment, Nineteenth Amendment, Twenty-Fourth Amendment,
Twenty-Sixth Amendment.
Authors Cited
Canada. House of Commons. House
of Commons Debates, vol. XIV, 3rd Sess., 34th Parl.,
April 2, 1993, pp. 18015-021.
Canada. Royal Commission on
Electoral Reform and Party Financing. Final Report of the Royal Commission
on Electoral Reform and Party Financing — Reforming Electoral Democracy,
vol. 1. Ottawa: The Commission, 1991.
Canada. Senate and House of
Commons. Special Joint Committee on the Constitution of Canada. Minutes of
Proceedings and Evidence, Issue No. 43, 1st Sess., 32nd Parl.,
January 22, 1981, pp. 43:79-43:90.
Concise Oxford Dictionary of
Current English, 9th ed. Oxford: Clarendon Press,
1995, “moral”.
Dworkin, Ronald. Taking Rights
Seriously. Cambridge: Harvard University Press, 1977.
George, Robert P. Making Men
Moral. Oxford: Clarendon Press, 1993.
Grimm, Dieter. “Human Rights and
Judicial Review in Germany”, in David M. Beatty, ed., Human Rights and
Judicial Review: A Comparative Perspective. Dordrecht: Martinus Nijhoff
Publishers, 1994, 267.
Hampton, Jean. “Punishment,
Feminism, and Political Identity: A Case Study in the Expressive Meaning of
the Law” (1998), 11 Can. J. L. & Jur. 23.
Hogg, Peter W. Constitutional
Law of Canada, vol. 2, loose-leaf ed. Scarborough, Ont.: Carswell, 1992
(updated 2001, release 1).
Hogg, Peter W., and Allison A.
Bushell. “The Charter Dialogue Between Courts and Legislatures” (1997),
35 Osgoode Hall L.J. 75.
Macklem, P., et al. Canadian
Constitutional Law, 2nd ed. Toronto: Emond Montgomery Publications, 1997.
Mill, John Stuart. “Thoughts on
Parliamentary Reform”, in J. M. Robson, ed., Essays on Politics and Society,
vol. XIX. Toronto: University of Toronto Press, 1977, 311.
Penal Reform International. Making
Standards Work — An International Handbook on Good Prison Practice.
The Hague: Penal Reform International, 1995.
Raz, Joseph. The Morality of
Freedom. Oxford: Clarendon Press, 1986.
Tribe, Laurence H. American
Constitutional Law, 2nd ed. Mineola, New York: Foundation Press, 1988.
Tribe, Laurence H. “The
Disenfranchisement of Ex‑Felons: Citizenship, Criminality, and ‘The
Purity of the Ballot Box’” (1989), 102 Harv. L. Rev. 1300.
United Nations. Human Rights
Committee. “General Comment Adopted by the Human Rights Committee under
Article 40, Paragraph 4, of the International Covenant on Civil and
Political Rights”, General Comment No. 25 (57), Annex V, CCPR/C/21,
Rev. 1, Add. 7, August 27, 1996.
APPEAL from a judgment of the Federal Court of Appeal,
[2000] 2 F.C. 117, 180 D.L.R. (4th) 385, 248 N.R. 267, 29 C.R. (5th) 242, 69
C.R.R. (2d) 106, [1999] F.C.J. No. 1577 (QL), allowing the respondents’ appeal
and dismissing the appellants’ cross-appeal from a decision of the Trial
Division, [1996] 1 F.C. 857, 106 F.T.R. 241, 132 D.L.R. (4th) 136, [1995]
F.C.J. No. 1735 (QL). Appeal allowed, L’Heureux‑Dubé, Gonthier, Major
and Bastarache JJ. dissenting.
Fergus J. O'Connor, for
the appellant Richard Sauvé.
Arne Peltz, for the
appellants Sheldon McCorrister, Lloyd Knezacek, Clair Woodhouse, Aaron Spence,
Serge Bélanger, Emile A. Bear and Randy Opoonechaw.
David G. Frayer, Q.C.,
and Gérald L. Chartier, for the respondents.
Thomas W. Wakeling and Gerald
D. Chipeur, for the intervener the Attorney General for Alberta.
Heather S. Leonoff, Q.C.,
for the intervener the Attorney General of Manitoba.
Allan Manson and Elizabeth
Thomas, for the interveners the Canadian Association of Elizabeth Fry
Societies and the John Howard Society of Canada.
John W. Conroy, Q.C.,
for the intervener the British Columbia Civil Liberties Association.
Kent Roach and Brian
Eyolfson, for the intervener the Aboriginal Legal Services of Toronto Inc.
Sylvain Lussier, for
the intervener the Canadian Bar Association.
The judgment of McLachlin C.J. and Iacobucci, Binnie,
Arbour and LeBel JJ. was delivered by
1
The Chief Justice — The
right of every citizen to vote, guaranteed by s. 3 of the Canadian Charter
of Rights and Freedoms , lies at the heart of Canadian democracy. The law
at stake in this appeal denies the right to vote to a certain class of people —
those serving sentences of two years or more in a correctional institution.
The question is whether the government has established that this denial of the
right to vote is allowed under s. 1 of the Charter as a “reasonable
limi[t] . . . demonstrably justified in a free and democratic society”. I
conclude that it is not. The right to vote, which lies at the heart of
Canadian democracy, can only be trammeled for good reason. Here, the reasons
offered do not suffice.
I. Statutory
Provisions
2
The predecessor to s. 51(e) of the Canada Elections Act,
R.S.C. 1985, c. E-2, prohibited all prison inmates from voting in federal
elections, regardless of the length of their sentences. This section was held
unconstitutional as an unjustified denial of the right to vote guaranteed by s.
3 of the Charter : Sauvé v. Canada (Attorney General), [1993] 2 S.C.R.
438. Parliament responded to this litigation by replacing this section with a
new s. 51 (e) (S.C. 1993, c. 19, s. 23), which denies the right to vote
to all inmates serving sentences of two years or more. Section 51 (e),
which is now continued in substantially the same form at s. 4(c) of the
Act (S.C. 2000, c. 9 ), and the relevant Charter provisions are set out
below.
Canada
Elections Act, R.S.C. 1985, c. E-2
51. The following persons are not qualified
to vote at an election and shall not vote at an election:
.
. .
(e) Every person who is imprisoned in a correctional
institution serving a sentence of two years or more;
Canadian
Charter of Rights and Freedoms
1. The Canadian Charter of Rights and
Freedoms guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
.
. .
3. Every citizen of Canada has the right to
vote in an election of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
.
. .
15. (1) Every individual is equal before
and under the law and has the right to the equal protection and equal benefit
of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.
II. Judgments
A. Federal
Court, Trial Division, [1996] 1 F.C. 857
3
The trial judge, Wetston J., held that s. 51 (e) of the Canada
Elections Act violated the Charter guarantee of the right to vote
without being demonstrably justified, and was therefore void. Although he
found that the government’s objectives were pressing and substantial, he
concluded that the denial of voting rights to all inmates serving a sentence of
two years or longer was overbroad and failed the minimal impairment test. In
addition, he found at p. 913 that denying the right to vote “hinder[ed] the
rehabilitation of offenders and their successful reintegration into the
community”. The negative consequences of the challenged provision were thus
disproportionate to any benefits it might produce.
B. Federal
Court of Appeal, [2000] 2 F.C. 117
4
The majority of the Federal Court of Appeal, per Linden J.A.,
reversed the trial judge and upheld the denial of voting rights, holding that
Parliament’s role in maintaining and enhancing the integrity of the electoral
process and in exercising the criminal law power both warranted deference. The
denial of the right to vote at issue fell within a reasonable range of
alternatives open to Parliament to achieve its objectives and was not overbroad
or disproportionate. Desjardins J.A., applying the “stringent formulation of
the Oakes test”, emphasized the absence of evidence of benefits flowing
from the denial and would have dismissed the appeal.
III. Issues
5
1. Does s. 51(e) of the Canada Elections Act infringe
the guarantee of the right of all citizens to vote under s. 3 of the Charter
and if so, is the infringement justified under s. 1 of the Charter ?
2.
Does s. 51(e) of the Canada Elections Act infringe the
equality guarantee of s. 15(1) of the Charter and if so, is the
infringement justified under s. 1 of the Charter ?
IV. Analysis
6
The respondents concede that the voting restriction at issue violates s.
3 of the Charter . The restriction is thus invalid unless demonstrably
justified under s. 1 . I shall therefore proceed directly to the s. 1
analysis.
A. The
Approach to Section 1 Justification
7
To justify the infringement of a Charter right, the government
must show that the infringement achieves a constitutionally valid purpose or objective,
and that the chosen means are reasonable and demonstrably justified: R. v.
Oakes, [1986] 1 S.C.R. 103. This two-part inquiry — the legitimacy
of the objective and the proportionality of the means — ensures that a
reviewing court examine rigorously all aspects of justification. Throughout
the justification process, the government bears the burden of proving a valid
objective and showing that the rights violation is warranted — that is, that it
is rationally connected, causes minimal impairment, and is proportionate to the
benefit achieved.
8
My colleague Justice Gonthier proposes a deferential approach to
infringement and justification. He argues that there is no reason to accord
special importance to the right to vote, and that we should thus defer to
Parliament’s choice among a range of reasonable alternatives. He further
argues that in justifying limits on the right to vote under s. 1 , we owe
deference to Parliament because we are dealing with “philosophical, political
and social considerations”, because of the abstract and symbolic nature of the
government’s stated goals, and because the law at issue represents a step in a
dialogue between Parliament and the courts.
9
I must, with respect, demur. The right to vote is fundamental to our
democracy and the rule of law and cannot be lightly set aside. Limits on it
require not deference, but careful examination. This is not a matter of
substituting the Court’s philosophical preference for that of the legislature,
but of ensuring that the legislature’s proffered justification is supported by
logic and common sense.
10
The Charter distinguishes between two separate issues: whether a
right has been infringed, and whether the limitation is justified. The
complainant bears the burden of showing the infringement of a right (the first
step), at which point the burden shifts to the government to justify the limit
as a reasonable limit under s. 1 (the second step). These are distinct
processes with different burdens. Insulating a rights restriction from
scrutiny by labeling it a matter of social philosophy, as the government
attempts to do, reverses the constitutionally imposed burden of justification.
It removes the infringement from our radar screen, instead of enabling us to
zero in on it to decide whether it is demonstrably justified as required by the
Charter .
11
At the first stage, which involves defining the right, we must follow
this Court’s consistent view that rights shall be defined broadly and
liberally: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p.
156; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344; Eldridge
v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at
para. 53. A broad and purposive interpretation of the right is particularly critical
in the case of the right to vote. The framers of the Charter signaled
the special importance of this right not only by its broad, untrammeled
language, but by exempting it from legislative override under s. 33 ’s
notwithstanding clause. I conclude that s. 3 must be construed as it reads,
and its ambit should not be limited by countervailing collective concerns, as
the government appears to argue. These concerns are for the government to
raise under s. 1 in justifying the limits it has imposed on the right.
12
At the s. 1 stage, the government argues that denying the right to vote
to penitentiary inmates is a matter of social and political philosophy,
requiring deference. Again, I cannot agree. This Court has repeatedly held
that the “general claim that the infringement of a right is justified under s.
1 ” does not warrant deference to Parliament: M. v. H., [1999] 2 S.C.R.
3, at para. 78, per Iacobucci J. Section 1 does not create a
presumption of constitutionality for limits on rights; rather, it requires the
state to justify such limitations.
13
The core democratic rights of Canadians do not fall within a “range of
acceptable alternatives” among which Parliament may pick and choose at its
discretion. Deference may be appropriate on a decision involving competing
social and political policies. It is not appropriate, however, on a decision to
limit fundamental rights. This case is not merely a competition between
competing social philosophies. It represents a conflict between the right of
citizens to vote — one of the most fundamental rights guaranteed by the Charter
— and Parliament’s denial of that right. Public debate on an issue does not
transform it into a matter of “social philosophy”, shielding it from full
judicial scrutiny. It is for the courts, unaffected by the shifting winds of
public opinion and electoral interests, to safeguard the right to vote
guaranteed by s. 3 of the Charter .
14
Charter rights are not a matter of privilege or merit, but a
function of membership in the Canadian polity that cannot lightly be cast
aside. This is manifestly true of the right to vote, the cornerstone of
democracy, exempt from the incursion permitted on other rights through s. 33
override. Thus, courts considering denials of voting rights have applied a
stringent justification standard: Sauvé v. Canada (Attorney General) (1992),
7 O.R. (3d) 481 (C.A.) (“Sauvé No. 1”), and Belczowski v. Canada,
[1992] 2 F.C. 440 (C.A.).
15
The Charter charges courts with upholding and maintaining an
inclusive, participatory democratic framework within which citizens can explore
and pursue different conceptions of the good. While a posture of judicial
deference to legislative decisions about social policy may be appropriate in
some cases, the legislation at issue does not fall into this category. To the
contrary, it is precisely when legislative choices threaten to undermine the
foundations of the participatory democracy guaranteed by the Charter
that courts must be vigilant in fulfilling their constitutional duty to protect
the integrity of this system.
16
Nor can I concur in the argument that the philosophically based or
symbolic nature of the government’s objectives in itself commands deference.
To the contrary, this Court has held that broad, symbolic objectives are
problematic, as I discuss below: see U.F.C.W., Local 1518 v. KMart
Canada Ltd., [1999] 2 S.C.R. 1083, at para. 59, per Cory J.; Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at
para. 87, per Bastarache J.; RJR-MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199, at paras. 143-44, per McLachlin J.
(as she then was). Parliament cannot use lofty objectives to shield legislation
from Charter scrutiny. Section 1 requires valid objectives and
proportionality.
17
Finally, the fact that the challenged denial of the right to vote
followed judicial rejection of an even more comprehensive denial, does not mean
that the Court should defer to Parliament as part of a “dialogue”. Parliament
must ensure that whatever law it passes, at whatever stage of the process,
conforms to the Constitution. The healthy and important promotion of a
dialogue between the legislature and the courts should not be debased to a rule
of “if at first you don’t succeed, try, try again”.
18
While deference to the legislature is not appropriate in this case,
legislative justification does not require empirical proof in a scientific
sense. While some matters can be proved with empirical or mathematical
precision, others, involving philosophical, political and social
considerations, cannot. In this case, it is enough that the justification be
convincing, in the sense that it is sufficient to satisfy the reasonable person
looking at all the evidence and relevant considerations, that the state is
justified in infringing the right at stake to the degree it has: see RJR-MacDonald,
supra, at para. 154, per McLachlin J.; R. v. Butler,
[1992] 1 S.C.R. 452, at pp. 502-3, per Sopinka J. What is required is
“rational, reasoned defensibility”: RJR-MacDonald, at para. 127.
Common sense and inferential reasoning may supplement the evidence: R. v.
Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 78, per
McLachlin C.J. However, one must be wary of stereotypes cloaked as common
sense, and of substituting deference for the reasoned demonstration required by
s. 1 .
19
Keeping in mind these basic principles of Charter review, I
approach the familiar stages of the Oakes test. I conclude that the
government’s stated objectives of promoting civic responsibility and respect
for the law and imposing appropriate punishment, while problematically vague,
are capable in principle of justifying limitations on Charter rights.
However, the government fails to establish proportionality, principally for
want of a rational connection between denying the vote to penitentiary inmates
and its stated goals.
B. The
Government’s Objectives
20
The objectives’ analysis entails a two-step inquiry. First, we must ask
what the objectives are of denying penitentiary inmates the right to vote.
This involves interpretation and construction, and calls for a contextual
approach: Thomson Newspapers, supra, at para. 87. Second, we
must evaluate whether the objectives as found are capable of justifying
limitations on Charter rights. The objectives must not be “trivial”,
and they must not be “discordant with the principles integral to a free and
democratic society”: Oakes, supra, at p. 138. To borrow from the
language of German constitutional law, there must be a constitutionally valid
reason for infringing a right: see D. Grimm, “Human Rights and Judicial Review
in Germany”, in D. M. Beatty, ed., Human Rights and Judicial Review: A Comparative
Perspective (1994), 267, at p. 275. Because s. 1 serves first and foremost
to protect rights, the range of constitutionally valid objectives is not
unlimited. For example, the protection of competing rights might be a valid
objective. However, a simple majoritarian political preference for abolishing
a right altogether would not be a constitutionally valid objective.
21
Section 51(e) denying penitentiary inmates the right to vote was
not directed at a specific problem or concern. Prisoners have long voted, here
and abroad, in a variety of situations without apparent adverse effects to the
political process, the prison population, or society as a whole. In the
absence of a specific problem, the government asserts two broad objectives as
the reason for this denial of the right to vote: (1) to enhance civic
responsibility and respect for the rule of law; and (2) to provide additional punishment,
or “enhanc[e] the general purposes of the criminal sanction”. The record
leaves in doubt how much these goals actually motivated Parliament; the
Parliamentary debates offer more fulmination than illumination. However, on
the basis of “some glimmer of light”, the trial judge at p. 878 concluded that
they could be advanced as objectives of the denial. I am content to proceed on
this basis.
22
This leaves the question of whether the objectives of enhancing respect
for law and appropriate punishment are constitutionally valid and sufficiently
significant to warrant a rights violation. Vague and symbolic objectives such
as these almost guarantee a positive answer to this question. Who can argue
that respect for the law is not pressing? Who can argue that proper sentences
are not important? Who can argue that either of these goals, taken at face
value, contradicts democratic principles? However, precisely because they
leave so little room for argument, vague and symbolic objectives make the
justification analysis more difficult. Their terms carry many meanings, yet
tell us little about why the limitation on the right is necessary, and what it
is expected to achieve in concrete terms. The broader and more abstract the
objective, the more susceptible it is to different meanings in different
contexts, and hence to distortion and manipulation. One articulation of the
objective might inflate the importance of the objective; another might make the
legislative measure appear more narrowly tailored. The Court is left to sort
the matter out.
23
At the end of the day, people should not be left guessing about why
their Charter rights have been infringed. Demonstrable justification
requires that the objective clearly reveal the harm that the government hopes
to remedy, and that this objective remain constant throughout the justification
process. As this Court has stated, the objective “must be accurately and
precisely defined so as to provide a clear framework for evaluating its
importance, and to assess the precision with which the means have been crafted
to fulfil that objective”: per Cory J. in U.F.C.W., Local 1518,
supra, at para. 59; see also Thomson Newspapers, supra, at
para. 96; RJR-MacDonald, supra, at para. 144. A court faced with
vague objectives may well conclude, as did Arbour J.A. (as she then was) in Sauvé
No. 1, supra, at p. 487, that “the highly symbolic and abstract
nature of th[e] objective . . . detracts from its importance as a justification
for the violation of a constitutionally protected right”. If Parliament can
infringe a crucial right such as the right to vote simply by offering symbolic
and abstract reasons, judicial review either becomes vacuously constrained or
reduces to a contest of “our symbols are better than your symbols”. Neither
outcome is compatible with the vigorous justification analysis required by the Charter .
24
The rhetorical nature of the government objectives advanced in this case
renders them suspect. The first objective, enhancing civic responsibility and
respect for the law, could be asserted of virtually every criminal law and many
non-criminal measures. Respect for law is undeniably important. But the
simple statement of this value lacks the context necessary to assist us in
determining whether the infringement at issue is demonstrably justifiable in a
free and democratic society. To establish justification, one needs to know
what problem the government is targeting, and why it is so pressing and important
that it warrants limiting a Charter right. Without this, it is
difficult if not impossible to weigh whether the infringement of the right is
justifiable or proportionate.
25
The second objective — to impose additional punishment on people serving
penitentiary sentences — is less vague than the first. Still, problems with
vagueness remain. The record does not disclose precisely why Parliament felt
that more punishment was required for this particular class of prisoner, or
what additional objectives Parliament hoped to achieve by this punishment that
were not accomplished by the sentences already imposed. This makes it
difficult to assess whether the objective is important enough to justify an
additional rights infringement.
26
Quite simply, the government has failed to identify particular problems
that require denying the right to vote, making it hard to say that the denial
is directed at a pressing and substantial purpose. Nevertheless, despite the
abstract nature of the government’s objectives and the rather thin basis upon
which they rest, prudence suggests that we proceed to the proportionality
analysis, rather than dismissing the government’s objectives outright. The
proportionality inquiry allows us to determine whether the government’s
asserted objectives are in fact capable of justifying its denial of the right
to vote. At that stage, as we shall see, the difficulties inherent in the
government’s stated objectives become manifest.
C. Proportionality
27
At this stage the government must show that the denial of the right to
vote will promote the asserted objectives (the rational connection test); that
the denial does not go further than reasonably necessary to achieve its
objectives (the minimal impairment test); and that the overall benefits of the
measure outweigh its negative impact (the proportionate effect test). As will
be seen, the vagueness of the government’s justificatory goals coupled with the
centrality of the right to vote to Canadian democracy, the rule of law, and
legitimate sentencing, make the government’s task difficult indeed.
1. Rational Connection
28
Will denying the right to vote to penitentiary inmates enhance respect
for the law and impose legitimate punishment? The government must show that
this is likely, either by evidence or in reason and logic: RJR-MacDonald,
supra, at para. 153.
29
The government advances three theories to demonstrate rational
connection between its limitation and the objective of enhancing respect for
law. First, it submits that depriving penitentiary inmates of the vote sends an
“educative message” about the importance of respect for the law to inmates and
to the citizenry at large. Second, it asserts that allowing penitentiary
inmates to vote “demeans” the political system. Finally, it takes the
position that disenfranchisement is a legitimate form of punishment, regardless
of the specific nature of the offence or the circumstances of the individual
offender. In my respectful view, none of these claims succeed.
30
The first asserted connector with enhancing respect for the law is the
“educative message” or “moral statement” theory. The problem here, quite
simply, is that denying penitentiary inmates the right to vote is bad
pedagogy. It misrepresents the nature of our rights and obligations under the
law, and it communicates a message more likely to harm than to help respect for
the law.
31
Denying penitentiary inmates the right to vote misrepresents the nature
of our rights and obligations under the law and consequently undermines them.
In a democracy such as ours, the power of lawmakers flows from the voting
citizens, and lawmakers act as the citizens’ proxies. This delegation from
voters to legislators gives the law its legitimacy or force. Correlatively,
the obligation to obey the law flows from the fact that the law is made by and
on behalf of the citizens. In sum, the legitimacy of the law and the
obligation to obey the law flow directly from the right of every citizen to
vote. As a practical matter, we require all within our country’s boundaries to
obey its laws, whether or not they vote. But this does not negate the vital
symbolic, theoretical and practical connection between having a voice in making
the law and being obliged to obey it. This connection, inherited from social
contract theory and enshrined in the Charter , stands at the heart of our
system of constitutional democracy.
32
The government gets this connection exactly backwards when it attempts
to argue that depriving people of a voice in government teaches them to obey
the law. The “educative message” that the government purports to send by
disenfranchising inmates is both anti-democratic and internally
self-contradictory. Denying a citizen the right to vote denies the basis of
democratic legitimacy. It says that delegates elected by the citizens can then
bar those very citizens, or a portion of them, from participating in future
elections. But if we accept that governmental power in a democracy flows from
the citizens, it is difficult to see how that power can legitimately be used to
disenfranchise the very citizens from whom the government’s power flows.
33
Reflecting this truth, the history of democracy is the history of
progressive enfranchisement. The universal franchise has become, at this point
in time, an essential part of democracy. From the notion that only a few
meritorious people could vote (expressed in terms like class, property and
gender), there gradually evolved the modern precept that all citizens are
entitled to vote as members of a self-governing citizenry. Canada’s steady
march to universal suffrage culminated in 1982, with our adoption of a
constitutional guarantee of the right of all citizens to vote in s. 3 of the Charter .
As Arbour J.A. observed in Sauvé No. 1, supra, at p. 487:
. . . the slow movement toward universal suffrage in Western
democracies took an irreversible step forward in Canada in 1982 by the
enactment of s. 3 of the Charter . I doubt that anyone could now be
deprived of the vote on the basis, not merely symbolic but actually
demonstrated, that he or she was not decent or responsible. By the time the Charter
was enacted, exclusions from the franchise were so few in this country that it
is fair to assume that we had abandoned the notion that the electorate should
be restricted to a “decent and responsible citizenry,” previously defined by
attributes such as ownership of land or gender, in favour of a pluralistic
electorate which could well include domestic enemies of the state.
Under s. 3 of
the Charter , the final vestiges of the old policy of selective voting have
fallen, including the exclusion of persons with a “mental disease” and
federally appointed judges: see Canadian Disability Rights Council v. Canada,
[1988] 3 F.C. 622 (T.D.); and Muldoon v. Canada, [1988] 3 F.C. 628
(T.D.). The disenfranchisement of inmates takes us backwards in time and
retrenches our democratic entitlements.
34
The right of all citizens to vote, regardless of virtue or mental
ability or other distinguishing features, underpins the legitimacy of Canadian
democracy and Parliament’s claim to power. A government that restricts the
franchise to a select portion of citizens is a government that weakens its
ability to function as the legitimate representative of the excluded citizens,
jeopardizes its claim to representative democracy, and erodes the basis of its
right to convict and punish law-breakers.
35
More broadly, denying citizens the right to vote runs counter to our
constitutional commitment to the inherent worth and dignity of every
individual. As the South African Constitutional Court said in August v.
Electoral Commission, 1999 (3) SALR 1, at para. 17, “[t]he vote of
each and every citizen is a badge of dignity and of personhood. Quite
literally, it says that everybody counts.” The fact that the
disenfranchisement law at issue applies to a discrete group of persons should
make us more, not less, wary of its potential to violate the principles of
equal rights and equal membership embodied in and protected by the Charter .
36
In recognition of the seminal importance of the right to vote in the
constellation of rights, the framers of the Charter accorded it special
protections. Unlike other rights, the right of every citizen to vote cannot be
suspended under the “notwithstanding clause”. As Arbour J.A. said in Sauvé
No. 1, supra, at p. 486:
It is indeed significant that s. 3 of the Charter
is immune from the notwithstanding clause contained in s. 33 , which permits
Parliament and the legislatures to enact legislation which would otherwise
violate the Charter . It confirms that the right to vote must be
protected against those who have the capacity, and often the interest, to limit
the franchise. Unpopular minorities may seek redress against an infringement
of their rights in the courts. But like everybody else, they can only seek
redress against a dismissal of their political point of view at the polls.
37
The government’s vague appeal to “civic responsibility” is unhelpful, as
is the attempt to lump inmate disenfranchisement together with legitimate
voting regulations in support of the government’s position. The analogy
between youth voting restrictions and inmate disenfranchisement breaks down
because the type of judgment Parliament is making in the two scenarios is very
different. In the first case, Parliament is making a decision based on the
experiential situation of all citizens when they are young. It is not saying
that the excluded class is unworthy to vote, but regulating a modality of the
universal franchise. In the second case, the government is making a decision
that some people, whatever their abilities, are not morally worthy to vote —
that they do not “deserve” to be considered members of the community and hence
may be deprived of the most basic of their constitutional rights. But this is
not the lawmakers’ decision to make. The Charter makes this decision
for us by guaranteeing the right of “every citizen” to vote and by expressly
placing prisoners under the protective umbrella of the Charter through
constitutional limits on punishment. The Charter emphatically says that
prisoners are protected citizens, and short of a constitutional amendment,
lawmakers cannot change this.
38
The theoretical and constitutional links between the right to vote and
respect for the rule of law are reflected in the practical realities of the
prison population and the need to bolster, rather than to undermine, the
feeling of connection between prisoners and society as a whole. The government
argues that disenfranchisement will “educate” and rehabilitate inmates.
However, disenfranchisement is more likely to become a self-fulfilling prophecy
than a spur to reintegration. Depriving at-risk individuals of their sense of
collective identity and membership in the community is unlikely to instill a
sense of responsibility and community identity, while the right to participate
in voting helps teach democratic values and social responsibility (testimony of
Professor Jackson, appellants’ record at pp. 2001-2). As J. S. Mill wrote:
To take an active interest in politics is, in modern times, the first
thing which elevates the mind to large interests and contemplations; the first
step out of the narrow bounds of individual and family selfishness, the first
opening in the contracted round of daily occupations. . . . The possession and
the exercise of political, and among others of electoral, rights, is one of the
chief instruments both of moral and of intellectual training for the popular
mind . . . .
(J. S. Mill, “Thoughts on Parliamentary Reform” (1859), in J. M.
Robson, ed., Essays on Politics and Society, vol. XIX, 1977, 311, at pp.
322-23)
To deny
prisoners the right to vote is to lose an important means of teaching them democratic
values and social responsibility.
39
Even if these difficulties could be overcome, it is not apparent that
denying penitentiary inmates the right to vote actually sends the intended
message to prisoners, or to the rest of society. People may be sentenced to
imprisonment for two years or more for a wide variety of crimes, ranging from
motor vehicle and regulatory offences to the most serious cases of murder. The
variety of offences and offenders covered by the prohibition suggests that the
educative message is, at best, a mixed and diffuse one.
40
It is a message sullied, moreover, by negative and unacceptable messages
likely to undermine civic responsibility and respect for the rule of law.
Denying citizen law-breakers the right to vote sends the message that those who
commit serious breaches are no longer valued as members of the community, but
instead are temporary outcasts from our system of rights and democracy. More
profoundly, it sends the unacceptable message that democratic values are less
important than punitive measures ostensibly designed to promote order. If
modern democratic history has one lesson to teach it is this: enforced
conformity to the law should not come at the cost of our core democratic
values.
41
I conclude that denying penitentiary inmates the right to vote is more
likely to send messages that undermine respect for the law and democracy than
messages that enhance those values. The government’s novel political theory
that would permit elected representatives to disenfranchise a segment of the
population finds no place in a democracy built upon principles of inclusiveness,
equality, and citizen participation. That not all self-proclaimed democracies
adhere to this conclusion says little about what the Canadian vision of
democracy embodied in the Charter permits. Punitive disenfranchisement
of inmates does not send the “educative message” that the government claims; to
the contrary, it undermines this message and is incompatible with the basic
tenets of participatory democracy contained in and guaranteed by the Charter .
42
The government also argues that denying penitentiary inmates the vote
will enhance respect for law because allowing people who flaunt the law to vote
demeans the political system. The same untenable premises we have been
discussing resurface here — that voting is a privilege the government can
suspend and that the commission of a serious crime signals that the offender
has chosen to “opt out” of community membership. But beyond this, the argument
that only those who respect the law should participate in the political process
is a variant on the age-old unworthiness rationale for denying the vote.
43
The idea that certain classes of people are not morally fit or morally
worthy to vote and to participate in the law-making process is ancient and
obsolete. Edward III pronounced that citizens who committed serious crimes
suffered “civil death”, by which a convicted felon was deemed to forfeit all
civil rights. Until recently, large classes of people, prisoners among them,
were excluded from the franchise. The assumption that they were not fit or
“worthy” of voting — whether by reason of class, race, gender or conduct —
played a large role in this exclusion. We should reject the retrograde notion
that “worthiness” qualifications for voters may be logically viewed as
enhancing the political process and respect for the rule of law. As Arbour
J.A. stated in Sauvé No. 1, supra, at p. 487, since the
adoption of s. 3 of the Charter , it is doubtful “that anyone could now
be deprived of the vote on the basis . . . that he or she was not decent or
responsible”.
44
Denial of the right to vote on the basis of attributed moral
unworthiness is inconsistent with the respect for the dignity of every person
that lies at the heart of Canadian democracy and the Charter : compare August,
supra. It also runs counter to the plain words of s. 3 , its exclusion
from the s. 33 override, and the idea that laws command obedience because
they are made by those whose conduct they govern. For all these reasons, it
must, at this stage of our history, be rejected.
45
This brings us to the government’s final argument for rational
connection — that disenfranchisement is a legitimate weapon in the state’s
punitive arsenal against the individual lawbreaker. Again, the argument cannot
succeed. The first reason is that using the denial of rights as punishment is
suspect. The second reason is that denying the right to vote does not comply
with the requirements for legitimate punishment established by our
jurisprudence.
46
The argument, stripped of rhetoric, proposes that it is open to
Parliament to add a new tool to its arsenal of punitive implements — denial of
constitutional rights. I find this notion problematic. I do not doubt that
Parliament may limit constitutional rights in the name of punishment, provided
that it can justify the limitation. But it is another thing to say that a
particular class of people for a particular period of time will completely lose
a particular constitutional right. This is tantamount to saying that the
affected class is outside the full protection of the Charter . It is
doubtful that such an unmodulated deprivation, particularly of a right as basic
as the right to vote, is capable of justification under s. 1 . Could Parliament
justifiably pass a law removing the right of all penitentiary prisoners to be
protected from cruel and unusual punishment? I think not. What of freedom of
expression or religion? Why, one asks, is the right to vote different? The
government offers no credible theory about why it should be allowed to deny
this fundamental democratic right as a form of state punishment.
47
The social compact requires the citizen to obey the laws created by the
democratic process. But it does not follow that failure to do so nullifies the
citizen’s continued membership in the self-governing polity. Indeed, the
remedy of imprisonment for a term rather than permanent exile implies our
acceptance of continued membership in the social order. Certain rights are
justifiably limited for penal reasons, including aspects of the rights to
liberty, security of the person, mobility, and security against search and
seizure. But whether a right is justifiably limited cannot be determined by
observing that an offender has, by his or her actions, withdrawn from the
social compact. Indeed, the right of the state to punish and the obligation of
the criminal to accept punishment are tied to society’s acceptance of the
criminal as a person with rights and responsibilities. Other Charter provisions
make this clear. Thus s. 11 protects convicted offenders from unfair trials,
and s. 12 from “cruel and unusual treatment or punishment”.
48
The second flaw in the argument that s. 51(e) furthers legitimate
punishment is that it does not meet the dual requirements that punishment must
not be arbitrary and must serve a valid criminal law purpose. Absence of
arbitrariness requires that punishment be tailored to the acts and
circumstances of the individual offender: R. v. Smith, [1987] 1 S.C.R.
1045, at p. 1073. In the immortal words of Gilbert and Sullivan, the
punishment should fit the crime. Section 51(e) qua punishment
bears little relation to the offender’s particular crime. It makes no attempt
to differentiate among inmates serving sentences of two years and those serving
sentences of twenty. It is true that those serving shorter sentences will be
deprived of the right to vote for a shorter time. Yet the correlation of the
denial with the crime remains weak. It is not only the violent felon who is
told he is an unworthy outcast; a person imprisoned for a non-violent or
negligent act, or an Aboriginal person suffering from social displacement
receives the same message. They are not targeted, but they are caught all the
same. For them the message is doubly invidious — not that they are cast out
for their apparently voluntary rejection of society’s norms, but that they are
cast out arbitrarily, in ways that bear no necessary relation to their actual
situation or attitude towards state authority.
49
Punishment must also fulfill a legitimate penal purpose: see Smith,
supra, at p. 1068. These include deterrence, rehabilitation,
retribution, and denunciation: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at
para. 82. Neither the record nor common sense supports the claim that
disenfranchisement deters crime or rehabilitates criminals. On the contrary,
as Mill recognized long ago, participation in the political process offers a valuable
means of teaching democratic values and civic responsibility.
50
This leaves retribution and denunciation. Parliament may denounce
unlawful conduct. But it must do so in a way that closely reflects the moral
culpability of the offender and his or her circumstances. As Lamer C.J.
indicated in M. (C.A.), supra, at para. 80:
Retribution in a criminal context, by contrast [to vengeance],
represents an objective, reasoned and measured determination of an appropriate
punishment which properly reflects the moral culpability of the
offender, having regard to the intentional risk-taking of the offender, the
consequential harm caused by the offender, and the normative character of the
offender’s conduct. [Emphasis in original.]
Denunciation
as a symbolic expression of community values must be individually tailored in
order to fulfill the legitimate penal purpose of condemning a particular
offender’s conduct (see M. (C.A.), supra, at para. 81) and to
send an appropriate “educative message” about the importance of law-abiding
behavior.
51
Section 51(e) imposes blanket punishment on all penitentiary
inmates regardless of the particular crimes they committed, the harm they
caused, or the normative character of their conduct. It is not individually tailored
to the particular offender’s act. It does not, in short, meet the requirements
of denunciatory, retributive punishment. It follows that it is not rationally
connected to the goal of imposing legitimate punishment.
52
When the facade of rhetoric is stripped away, little is left of the
government’s claim about punishment other than that criminals are people who
have broken society’s norms and may therefore be denounced and punished as the
government sees fit, even to the point of removing fundamental constitutional
rights. Yet, the right to punish and to denounce, however important, is
constitutionally constrained. It cannot be used to write entire rights out of
the Constitution, it cannot be arbitrary, and it must serve the
constitutionally recognized goals of sentencing. On all counts, the case that
s. 51(e) furthers lawful punishment objectives fails.
53
I conclude that the government has failed to establish a rational
connection between s. 51(e)’s denial of the right to vote and the
objectives of enhancing respect for the law and ensuring appropriate
punishment.
2. Minimal Impairment
54
If the denial of a right is not rationally connected to the government’s
objectives, it makes little sense to go on to ask whether the law goes further
than is necessary to achieve the objective. I simply observe that if it were
established that denying the right to vote sends an educative message that
society will not tolerate serious crime, the class denied the vote — all those
serving sentences of two years or more — is too broad, catching many whose
crimes are relatively minor and who cannot be said to have broken their ties to
society. Similarly, if it were established that this denial somehow furthers
legitimate sentencing goals, it is plain that the marker of a sentence of two
years or more catches many people who, on the government’s own theory, should
not be caught.
55
The question at this stage of the analysis is not how many
citizens are affected, but whether the right is minimally impaired.
Even one person whose Charter rights are unjustifiably limited is
entitled to seek redress under the Charter . It follows that this
legislation cannot be saved by the mere fact that it is less restrictive than a
blanket exclusion of all inmates from the franchise. First, it is difficult to
substantiate the proposition that a two-year term is a reasonable means of
identifying those who have committed “serious”, as opposed to “minor”,
offences. If serious and minor offences are defined by the duration of
incarceration, then this is a tautology. If the two-year period is meant to
serve as a proxy for something else, then the government must give content to
the notion of “serious” vs. “minor” offences, and it must demonstrate the
correlation between this distinction and the entitlement to vote. It is no
answer to the overbreadth critique to say that the measure is saved because a
limited class of people is affected: the question is why individuals in
this class are singled out to have their rights restricted, and how
their rights are limited. The perceived “seriousness” of the crime is only one
of many factors in determining the length of a convicted offender’s sentence
and the time served. The only real answer the government provides to the
question “why two years?” is because it affects a smaller class than would a
blanket disenfranchisement.
56
Nor is it any answer to say that the infringement will end when the
imprisonment ends. The denial of the right to vote during the period of
imprisonment affects penitentiary inmates consistently, to an absolute degree,
and in arbitrary ways that bear no necessary relation to their actual situation
or attitude towards state authority. Section 51(e) thus denies a
prisoner’s rights in precisely the same fashion as its unconstitutional
predecessor.
3. Proportionate Effect
57
If a connection could be shown between the denial of the right to vote
and the government’s objectives, the negative effects of denying citizens the right
to vote would greatly outweigh the tenuous benefits that might ensue.
58
Denial of the right to vote to penitentiary inmates undermines the
legitimacy of government, the effectiveness of government, and the rule of
law. It curtails the personal rights of the citizen to political expression
and participation in the political life of his or her country. It countermands
the message that everyone is equally worthy and entitled to respect under the
law — that everybody counts: see August, supra. It is more
likely to erode respect for the rule of law than to enhance it, and more likely
to undermine sentencing goals of deterrence and rehabilitation than to further
them.
59
The government’s plea of no demonstrated harm to penitentiary inmates
rings hollow when what is at stake is the denial of the fundamental right of
every citizen to vote. When basic political rights are denied, proof of
additional harm is not required. But were proof needed, it is available.
Denying prisoners the right to vote imposes negative costs on prisoners and on
the penal system. It removes a route to social development and rehabilitation
acknowledged since the time of Mill, and it undermines correctional law and
policy directed towards rehabilitation and integration (testimony of
Professor Jackson, appellants’ record at pp. 2001-2). As the trial judge
clearly perceived at p. 913, s. 51(e) “serves to further alienate
prisoners from the community to which they must return, and in which their
families live”.
60
The negative effects of s. 51(e) upon prisoners have a
disproportionate impact on Canada’s already disadvantaged Aboriginal
population, whose overrepresentation in prisons reflects “a crisis in the
Canadian criminal justice system”: R. v. Gladue, [1999] 1 S.C.R. 688, at
para. 64, per Cory and Iacobucci JJ. To the extent that the
disproportionate number of Aboriginal people in penitentiaries reflects factors
such as higher rates of poverty and institutionalized alienation from
mainstream society, penitentiary imprisonment may not be a fair or appropriate
marker of the degree of individual culpability. Added to this is the cost of
silencing the voices of incarcerated Aboriginal people; with due respect, the fact
that 1,837 Aboriginal people are disenfranchised by this law, while close to
600,000 are not directly affected, does not justify restricting the rights of
those 1,837 individuals for reasons not demonstrably justified under the Charter :
see Court of Appeal decision at para. 169. Aboriginal people in prison have
unique perspectives and needs. Yet, s. 51(e) denies them a voice at the
ballot box and, by proxy, in Parliament. That these costs are confined to the
term of imprisonment does not diminish their reality. The silenced messages
cannot be retrieved, and the prospect of someday participating in the political
system is cold comfort to those whose rights are denied in the present.
61
In the final analysis, even if there were merit in the Court of Appeal’s
view that the trial judge relied too heavily on the absence of concrete
evidence of benefit, it is difficult to avoid the trial judge’s conclusion, at
p. 916, that “the salutary effects upon which the defendants rely are tenuous
in the face of the denial of the democratic right to vote, and are insufficient
to meet the civil standard of proof”.
62
I conclude that s. 51(e)’s disenfranchisement of prisoners
sentenced to two years or more cannot be justified under s. 1 of the Charter .
I leave for another day whether some political activities, like standing for
office, could be justifiably denied to prisoners under s. 1 . It may be that
practical problems might serve to justify some limitations on the exercise of
derivative democratic rights. Democratic participation is not only a matter of
theory but also of practice, and legislatures retain the power to limit the
modalities of its exercise where this can be justified. Suffice it to say that
the wholesale disenfranchisement of all penitentiary inmates, even with a
two-year minimum sentence requirement, is not demonstrably justified in our
free and democratic society.
D. The
Guarantee of Equality under Section 15(1) of the Charter
63
Having found that s. 51(e) unjustifiably infringes s. 3 of the Charter ,
it is unnecessary to consider the alternative argument that it infringes the
equality guarantee of s. 15(1) .
V. Conclusion
64
I would allow the appeal, with costs to the appellants. Section 51(e)
infringes s. 3 of the Charter , and the infringement is not
justified under s. 1 . It follows that s. 51 (e) is inconsistent with the
Charter and is of no force or effect by operation of s. 52 of the Constitution
Act, 1982 . I would answer the constitutional questions as follows:
1. Does s. 51(e) of the Canada
Elections Act, R.S.C. 1985, c. E-2, infringe the right to vote in an
election of members of the House of Commons, as guaranteed by s. 3 of the
Canadian Charter of Rights and Freedoms ?
Yes.
2. If the answer to Question 1 is
yes, is the infringement a reasonable limit, prescribed by law, which can be
demonstrably justified in a free and democratic society, pursuant to s. 1 of
the Canadian Charter of Rights and Freedoms ?
No.
It is
unnecessary to answer the constitutional questions regarding s. 15(1) of the Charter .
The reasons of L’Heureux-Dubé, Gonthier, Major and Bastarache JJ. were
delivered by
Gonthier J. (dissenting)
—
I. Introduction
A) Specific
Issue Before this Court
65
Is Parliament able to temporarily suspend the exercise of the right to
vote for criminals incarcerated for the commission of serious crimes for the
duration of their incarceration? This is the question raised by this appeal.
The answer will depend on whether s. 51(e) of the Canada Elections
Act, R.S.C. 1985, c. E-2 (the “Act”), which prohibits “[e]very person who
is imprisoned in a correctional institution serving a sentence of two years or
more” from voting, is in breach of ss. 3 or 15 of the Canadian Charter of
Rights and Freedoms in a manner not justifiable under s. 1 .
66
The trial judge was of the view that s. 51(e) of the Act did not
satisfy the test mandated by s. 1 of the Charter . I am in respectful
disagreement with the reasons of my colleague, Chief Justice McLachlin, which
support the disposition reached by the trial judge. I generally agree with the
reasoning of the majority of the Federal Court of Appeal below that this
provision is constitutionally sound. In my view, s. 51(e) of the
Act is not an infringement of s. 15 of the Charter , and while having
been conceded to be an infringement of the s. 3 Charter right, it is
capable of being justified under s. 1 of the Charter as a reasonable
limitation thereupon.
B) The
More Fundamental Issue Arising from the Context of the Case at Bar
67
My disagreement with the reasons of the Chief Justice, however, is also
at a more fundamental level. This case rests on philosophical, political and
social considerations which are not capable of “scientific proof”. It involves
justifications for and against the limitation of the right to vote which are
based upon axiomatic arguments of principle or value statements. I am of the
view that when faced with such justifications, this Court ought to turn to the
text of s. 1 of the Charter and to the basic principles which undergird
both s. 1 and the relationship that provision has with the rights and freedoms
protected within the Charter . Particularly, s. 1 of the Charter
requires that this Court look to the fact that there may be different social or
political philosophies upon which justifications for or against the limitations
of rights may be based. In such a context, where this Court is presented with
competing social or political philosophies relating to the right to vote, it is
not by merely approving or preferring one that the other is necessarily
disproved or shown not to survive Charter scrutiny. If the social or
political philosophy advanced by Parliament reasonably justifies a limitation
of the right in the context of a free and democratic society, then it ought to
be upheld as constitutional. I conclude that this is so in the case at bar.
II. Legislative
Provision in Question
68
I am of the view that by enacting s. 51(e) of the Act, Parliament
has chosen to assert and enhance the importance and value of the right to vote
by temporarily disenfranchising serious criminal offenders for the duration of
their incarceration. This point is worth underlining. The Chief Justice and I
are in agreement that the right to vote is profoundly important, and ought not
to be demeaned. Our differences lie principally in the fact that she subscribes
to a philosophy whereby the temporary disenfranchising of criminals does injury
to the rule of law, democracy and the right to vote, while I prefer deference
to Parliament’s reasonable view that it strengthens these same features of
Canadian society.
69
The reasons of the Chief Justice refer to the historical evolution of
the franchise in Canada. This evolution has generally involved the weeding out
of discriminatory exclusions. It is undeniable and, obviously, to be
applauded, that, over time, Canada has been evolving towards the
universalization of the franchise in such a manner. The provision in question in
the case at bar, however, is strikingly and qualitatively different from these
past discriminatory exclusions. It is a temporary suspension from voting based
exclusively on the serious criminal activity of the offender. It is the
length of the sentence, reflecting the nature of the offence and the criminal
activity committed, that results in the temporary disenfranchisement during
incarceration. Thus, far from being repugnant and discriminatory, based on
some irrelevant personal characteristic, such as gender, race, or religion, s.
51(e) of the Act distinguishes persons based on the perpetrating of acts
that are condemned by the Criminal Code, R.S.C. 1985, c. C-46 .
Parliament has recognized this distinction as being different from other
exclusions by its continued assertion that being convicted of a serious
criminal offence is a ground for temporary disenfranchisement.
70
The reasons of the Chief Justice at para. 33 cite with approval a
passage from Arbour J.A.’s reasons in the first Sauvé case which suggests
that:
By the time the Charter was enacted, exclusions from the
franchise were so few in this country that it is fair to assume that we had
abandoned the notion that the electorate should be restricted to a “decent and
responsible citizenry”, previously defined by attributes such as ownership of
land or gender, in favour of a pluralistic electorate which could well include
domestic enemies of the state.
(Sauvé v. Canada (Attorney General) (1992), 7 O.R. (3d) 481
(C.A.), at p. 487)
While there is little logical correlation between maintaining a “decent
and responsible citizenry” and any of the past discriminatory exclusions (such
as land-ownership, religion, gender, ethnic background), there clearly is such
a logical connection in the case of distinguishing persons who have committed
serious criminal offences. “Responsible citizenship” does not relate to
what gender, race, or religion a person belongs to, but is logically related to
whether or not a person engages in serious criminal activity.
71
A further dimension of this qualitative difference is that serious
criminal offenders are excluded from the vote for the reason that they are the subjects
of punishment. The disenfranchisement only lasts as long as the period of incarceration.
Thus, disenfranchisement, as a dimension of punishment, is attached to and
mirrors the fact of incarceration. This fact makes the Canadian experience
significantly different from the situation in some American states which
disenfranchise ex-offenders for life, a situation addressed by many American
academics: see, for example, L. H. Tribe, “The Disenfranchisement of Ex-Felons:
Citizenship, Criminality, and ‘The Purity of the Ballot Box’” (1989), 102 Harv.
L. Rev. 1300.
72
It is important to look at prisoner disenfranchisement from the
perspective of each serious criminal offender rather than perceive it as a form
of targeted group treatment. Disenfranchised prisoners can be characterized
loosely as a group, but what is important to realize is that each of these
prisoners has been convicted of a serious criminal offence and is therefore
serving a personalized sentence which is proportionate to the act or acts
committed. Punishment is guided by the goals of denunciation, deterrence,
rehabilitation and retribution and is intended to be morally educative for
incarcerated serious criminal offenders. Each prisoner’s sentence is a
temporary measure aimed at meeting these goals, while also being aimed at the
long-term objective of reintegration into the community.
73
The reasons of the Chief Justice express the view that the temporary
disenfranchisement of serious criminal offenders necessarily undermines their
inherent “worth” or “dignity.” I disagree. In fact, it could be said that the
notion of punishment is predicated on the dignity of the individual: it
recognizes serious criminals as rational, autonomous individuals who have made
choices. When these citizens exercise their freedom in a criminal manner,
society imposes a concomitant responsibility for that choice. As Professor J.
Hampton, one of the Crown’s experts, writes in an article cited by Linden J.A.
below, “Punishment, Feminism, and Political Identity: A Case Study in the Expressive
Meaning of the Law” (1998), 11 Can. J. L. & Jur. 23, at p. 43:
By telling people “you can have your right to vote suspended if,
through your actions, you show contempt for the values that make our society
possible”, this law links the exercise of freedom with responsibility for
its effects. Indeed, not to construct a punishment that sends this
message is . . . to indirectly undermine the values of a democratic
society. [Underlining added; italics in original.]
74
If there is any negative connotation associated with this temporary
disenfranchisement, it arises from the fact that a criminal act was
perpetrated, an act for which the criminal offender is consequently being
punished. This is not stereotyping. Criminal acts are rightly condemned by
society. Serious criminals being punished and temporarily disenfranchised are
not in any way of less “worth” or “dignity” because social condemnation is of
the criminal acts and its purpose is not to diminish the individual prisoner as
a person.
75
The argument that the temporary disenfranchisement of serious criminal
offenders undermines the inherent “worth” or “dignity” of prisoners presents a
potentially problematic line of reasoning. Is it possible to “punish” serious
criminals without undermining their “worth”? It must be so. This is
inherently recognized in the Charter itself insofar that s. 12 only
renders unconstitutional punishment that is “cruel and unusual”. The Criminal
Code and its provisions are declaratory of values, values on which Canadian
society rests: see R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 769 and
787. Protecting and enhancing these values through the imposition of
punishment for criminal activity is not an affront to dignity. On the
contrary, the temporary disenfranchisement of serious criminal offenders
reiterates society’s commitment to the basic moral values which underpin the Criminal
Code ; in this way it is morally educative for both prisoners and society as
a whole.
76
The punishment of serious criminal offenders is also aimed at protecting
society and the “dignity” and “worth” of those members of society who have been
or may become the victims of crime. Punishment is intended to act as a general
deterrent to potential criminals and as a specific deterrent vis-à-vis
incarcerated persons. Charter analysis is meant to consider the Charter
rights of other members of society: see R. v. Sharpe, [2001] 1 S.C.R.
45, 2001 SCC 2, at para. 187; Keegstra, supra, at p. 756.
Serious criminal activity is clearly often an affront to numerous Charter
values.
III. The
Right to Vote in Section 3 of the Charter
77
The current status of the vote in Canada is that all citizens are
empowered to vote in federal elections, save incarcerated offenders who are
disenfranchised by s. 51(e) of the Act (now continued in
substantially the same form at s. 4(c) of the Act (S.C. 2000, c. 9 )),
the Chief and Assistant Chief Electoral Officers, and persons under the age of
18 as of polling day. The most recent changes to the scope of the franchise
were made by Parliament in 1993, when the disqualifications of federally
appointed judges and persons suffering from “mental disease” were removed: S.C.
1993, c. 19, s. 23 amending s. 51 of the Act, and s. 24 which added s. 51.1 .
These modifications included s. 51 (e), which disqualified incarcerated
persons serving sentences of two years or more. It was already enacted at the
time this Court heard the first Sauvé case, [1993] 2 S.C.R. 438 (the
“first Sauvé case”), but since it was inapplicable to the case under
appeal, the Court did not comment on it.
78
The respondents conceded that s. 3 of the Charter has been
infringed by s. 51(e) of the Act. I would like to sound a cautionary
note regarding the appropriateness of concessions of infringement. The
specific problem with such a concession is that it may deprive the courts of
the benefit of the fruitful argument which most often occurs at that initial
phase of the analysis, in defining the scope of the right, particularly with
regard to historical and philosophical context. The development of contextual
factors examined with regard to the scope of the right is of great importance
since they clearly “animate” the later stages of the test elaborated in R.
v. Oakes, [1986] 1 S.C.R. 103: see McLachlin J. (as she then was) in Reference
re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p.
182. The following comment, which I shared with L’Heureux-Dubé and Bastarache
JJ. in Sharpe, supra, at para. 151, is equally apposite here: “it
is unfortunate that the Crown conceded that the right to free expression was
violated in this appeal in all respects, thereby depriving the Court of the
opportunity to fully explore the content and scope of s. 2 (b) as it
applies in this case”.
IV. Section
1 of the Charter
A) Oakes:
Flexibility and Context
79
To decide whether the limit upon the s. 3 Charter right found in
s. 51(e) of the Act is justified, one must determine whether it
constitutes a “reasonable limit prescribed by law that can be demonstrably
justified in a free and democratic society”. Pursuant to the test formulated
in Oakes, supra, this analysis proceeds in two stages. At the
preliminary phase, it must be determined whether the objective behind the limit
is of sufficient importance to justify overriding a Charter right. At
the second stage, we must consider whether the legislative measure chosen is
rationally connected to the legislative objective, whether the measure
minimally impairs the Charter right which has been infringed, and
finally whether the effects of the measure are proportional to the significance
of the objective and whether the salutary and deleterious effects of the
measure are proportional.
80
When engaging in Charter analysis, context and flexibility are
highly relevant. The need for flexibility in the application of the Oakes
test was noted by La Forest J. in United States of America v. Cotroni,
[1989] 1 S.C.R. 1469, at pp. 1489-90:
In the performance of the balancing task under s.
1 , it seems to me, a mechanistic approach must be avoided. While the rights
guaranteed by the Charter must be given priority in the equation, the
underlying values must be sensitively weighed in a particular context against
other values of a free and democratic society sought to be promoted by the
legislature.
Dickson C.J.
adopted the above passage in his majority reasons in Keegstra, supra,
and he went on to state at pp. 737-38:
. . . I hope it is clear that a rigid or formalistic approach to the
application of s. 1 must be avoided. The ability to use s. 1 as a gauge which
is sensitive to the values and circumstances particular to an appeal has been
identified as vital in past cases . . . . The sentiments of La Forest J.
correctly suggest that the application of the Oakes approach will vary
depending on the circumstances of the case, including the nature of the
interests at stake.
81
Factual, social, historical, and political context provides a backdrop
which is essential to develop in order to properly analyse what is at stake in
the case of an alleged infringement of a right. As Bastarache J. noted in Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para.
87:
The analysis under s. 1 of the Charter must
be undertaken with a close attention to context. This is inevitable as the
test devised in R. v. Oakes, [1986] 1 S.C.R. 103, requires a court to
establish the objective of the impugned provision, which can only be
accomplished by canvassing the nature of the social problem which it
addresses. Similarly, the proportionality of the means used to fulfil the pressing
and substantial objective can only be evaluated through a close attention to
detail and factual setting. In essence, context is the indispensable
handmaiden to the proper characterization of the objective of the impugned
provision, to determining whether that objective is justified, and to weighing
whether the means used are sufficiently closely related to the valid objective
so as to justify an infringement of a Charter right. [Emphasis
added.]
See also Sharpe,
supra, at paras. 132 and 156.
82
L’Heureux-Dubé and Bastarache JJ. and myself in Sharpe, supra,
at para. 153, noted that it is by virtue of attention to context that courts
come to consider other communal values which must be addressed in s. 1
analysis:
While the guidelines set out in Oakes
provide a useful analytical framework for the practical application of s. 1 , it
is important not to lose sight of the underlying purpose of that section,
namely to balance individual rights and our communal values. Where courts are
asked to consider whether a violation is justified under s. 1 , they must be
sensitive to the competing rights and values that exist in our democracy.
These other
communal values have a legitimate role to play in Charter analysis. As
stated by Dickson C.J. in Slaight Communications Inc. v. Davidson,
[1989] 1 S.C.R. 1038, at p. 1056: “There are many diverse values that deserve
protection in a free and democratic society such as that of Canada, only some
of which are expressly provided for in the Charter .”
83
In the case at bar, given that the context involves evaluating choices
regarding social or political philosophies and relates to shaping, giving
expression, and giving practical application to communal values, it is of the
utmost significance.
B) Section
3 is Subject to Section 1
84
The flexible contextual approach to s. 1 of the Charter and the
Oakes test necessitates that this Court keep in mind first principles. The
right to vote for all citizens is clearly encapsulated in s. 3 of the Charter
and, by the terms of s. 1 , it is subject to “such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society”. The
right, therefore, is not absolute, but is qualified — as are all rights under
the Charter — by s. 1 . A violation of the Charter only manifests
after the s. 1 inquiry has been entertained, since s. 1 permits and envisions
that the rights and freedoms enshrined in the Charter are capable of
such limitation.
85
An examination of the development of the language of s. 3 when the
wording of the Charter was being reviewed by the Special Joint Committee
on the Constitution evidences Parliament’s intent that s. 3 must be read as
subject to s. 1 limitations. Professor P. W. Hogg, in Constitutional Law of
Canada (loose-leaf ed.), offers the following commentary regarding an
earlier version of the language of s. 3 , at p. 42-2, fn. 12:
Section 3 of the Charter was in the October 1980 version in the
following terms:
3. Every citizen of Canada has, without
unreasonable distinction or limitation, the right to vote in an election of
members of the House of Commons or of a legislative assembly and to be
qualified for membership therein.
The April 1981 version contained the final version of s. 3 . In the
final version the words “without unreasonable distinction or limitation” are
deleted. The reason for the deletion was, no doubt, that the words were
redundant having regard to s. 1 . [Emphasis added.]
The Minutes of
Proceedings and Evidence of the Special Joint Committee on the Constitution of
Canada, Issue No. 43, January 22, 1981, at pp. 43:79 - 43:90, support this
statement: that Committee decided to remove the built-in limitation within s.
3 simply because s. 1 was intended to apply to s. 3 and allow demonstrably
justifiable limitations to survive constitutional scrutiny.
86
This general approach to s. 3 does not mean that justificatory concerns
play a role in defining the content of s. 3 , or that the right to vote
necessarily has inherent limitations within it. This proposition was rejected
by the majority of this Court in Harvey v. New Brunswick (Attorney General),
[1996] 2 S.C.R. 876, at paras. 29-32. It does mean that the specific context
needs to be brought into the s. 1 Charter test for the balancing of
interests, since s. 3 , like all Charter rights, is not absolute. This
is similar to the approach advocated in R. v. Mills, [1999] 3 S.C.R.
668, at para. 61, where McLachlin J. and Iacobucci J. stressed:
. . . the importance of interpreting rights in a contextual manner —
not because they are of intermittent importance but because they often inform,
and are informed by, other similarly deserving rights or values at play in
particular circumstances.
87
To graphically illustrate the above as it might be applied to prisoners,
one may ask the question: could a prisoner argue successfully that, by reason
of his incarceration, there was a violation of s. 6(1) of the Charter ,
which guarantees that “[e]very citizen of Canada has the right to enter, remain
in and leave Canada”? It would border on the ludicrous to suggest that a limitation
on this right was not possible under s. 1 of the Charter .
88
In the same vein, what of the s. 3 Charter guarantee that every
citizen has a right to be qualified for membership in the House of Commons?
Must a prisoner have the right to stand as a candidate? Were an incarcerated
offender to be elected, would he or she have a right to be released from prison
to take up that representative role?
89
To construe s. 3 as an absolute right presents other problems. For
example, currently only persons of the age of 18 or older are permitted to
vote. How, then, can there be a justification for denying the vote to a
politically mature 16 or 17 year-old? To justify this line, would Parliament
have to resort to the argument that persons below the age of majority are not,
in some sense, citizens in the fullest sense? The answer must simply lie in
the fact that s. 1 allows Parliament to make such choices as long as they are
rational and reasonable limitations which are justified in a free and democratic
society.
C) Justification
Under Section 1 Where the Context Involves Competing Social or
Political Philosophies
90
Generally, the result of a concession of a breach of a right is that the
burden for justifying the infringement falls to the Crown. With regard to the
standard of proof for s. 1 analysis, the civil standard of the balance of
probabilities applies, and it is important to stress that this standard does
not require scientific proof: Libman v. Quebec (Attorney General),
[1997] 3 S.C.R. 569, at para. 39. The application of common sense to what is
known will suffice, even if this falls short of a scientific standard:
McLachlin J. at para. 137 of RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199. Justification can be based upon reason, logic, common
sense, and knowledge of human nature: see R. v. Butler, [1992] 1 S.C.R.
452, at p. 524, referring to Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927, and Keegstra, supra. In the case at bar,
there is very little quantitative or empirical evidence either way. In such
cases, the task of justification relates to the analysis of human motivation,
the determination of values, and the understanding of underlying social or
political philosophies — it truly is justification rather than measurement.
91
Justifying, therefore, is not a matter of one value clearly prevailing
over the other, but is rather a matter of developing the significance of the
values being dealt with and asking whether Parliament, in its attempt to
reconcile competing interests, has achieved a rational and reasonable
balance. Proportionality, in the context of Charter analysis, does not
mean a perfect solution, as any balance arising from competing interests will
involve preferring one value over the other to some extent.
92
As emerges from the submissions before this Court, there seem generally
to be two options available for dealing with the issue at hand. The first,
that chosen by the Chief Justice, is to prefer an inclusive approach to
democratic participation for serious criminal offenders incarcerated for two
years or more. This view locates democratic participation as a central
dimension of rehabilitation, insofar as the incarcerated offenders remain
citizens with the fullest exercise of their democratic rights. By the same
token, the unrestricted franchise enhances democratic legitimacy of government,
and confirms or enhances the citizenship or standing of prisoners in society.
To do otherwise, it is suggested, undermines the “dignity” or “worth” of prisoners.
The alternative view, adopted by Parliament, considers that the temporary
suspension of the prisoner’s right to vote, in fact, enhances the general
purposes of the criminal sanction, including rehabilitation. It does so by
underlining the importance of civic responsibility and the rule of law. This
approach sees the temporary removal of the vote as a deterrent to offending or
re-offending and the return of the vote as an inducement to reject further
criminal conduct. In withdrawing for a time one expression of political
participation concurrently with personal freedom, the significance of both are
enhanced. Rather than undermine the dignity or worth of prisoners, the removal
of their vote takes seriously the notion that they are free actors and attaches
consequences to actions that violate certain core values as expressed in the Criminal
Code .
93
Both of these approaches, however, entail accepting logically prior
political or social philosophies about the nature and content of the right to
vote. The former approach, that accepted by the reasons of the Chief Justice,
entails accepting a philosophy that preventing criminals from voting does
damage to both society and the individual, and undermines prisoners’ inherent
worth and dignity. The latter approach also entails accepting a philosophy,
that not permitting serious incarcerated criminals to vote is a social
rejection of serious crime which reflects a moral line which safeguards the
social contract and the rule of law and bolsters the importance of the nexus
between individuals and the community. Both of these social or political
philosophies, however, are aimed at the same goal: that of supporting
the fundamental importance of the right to vote itself. Further, both of these
social or political philosophies are supported by the practices of the various
Canadian provinces, the practices of other liberal democracies, and academic
writings. Finally, neither position can be proven empirically — rather, the
selection of one over the other is largely a matter of philosophical
preference. What is key to my approach is that the acceptance of one or
the other of these social or political philosophies dictates much of the
constitutional analysis which ensues, since the reasonableness of any
limitation upon the right to vote and the appropriateness of particular penal
theories and their relation to the right to vote will logically be related to
whether or not the justification for that limitation is based upon an
“acceptable” social or political philosophy.
94
The reasons of the Chief Justice hold, at para. 18, that the challenge
of the government is to present a justification that is “convincing, in the
sense that it is sufficient to satisfy the reasonable person looking at all the
evidence and relevant considerations, that the state is justified in infringing
the right at stake to the degree it has”. I agree with this test, subject only
to a recognition that as the context of the case at bar involves evaluating
competing social or political philosophies, the analysis runs the risk of
lapsing into the realm of ipse dixit. In the realm of competing social
or political philosophies, reasonableness is the predominant s. 1
justification consideration.
95
The reasons of the Chief Justice apply something seemingly more onerous
than the “justification” standard referred to just above. She describes the
right to vote as a “core democratic right” and suggests that its exemption from
the s. 33 override somehow raises the bar for the government in attempting to
justify its restriction (paras. 13 and 14). This altering of the
justification standard is problematic in that it seems to be based upon the
view that there is only one plausible social or political philosophy upon which
to ground a justification for or against the limitation of the right. This
approach, however, is incorrect on a basic reading of s. 1 of the Charter ,
which clearly does not constrain Parliament or authorize this Court to
prioritize one reasonable social or political philosophy over reasonable
others, but only empowers this Court to strike down those limitations which are
not reasonable and which cannot be justified in a free and democratic society.
96
The analysis cannot be skirted by qualifying the right to vote as a core
democratic right. It does not follow from the fact that Parliament is denied
the authority to remove or qualify the right to vote in its sole discretion
under s. 33 that limitations on that right may not be justified under s. 1 , or
that a more onerous s. 1 analysis must necessarily apply. Constitutional
writers and commentators point out that s. 33 was a political compromise, meant
to bring together provinces opposed to the entrenchment of constitutional
rights, with those in favour: P. Macklem et al., Canadian Constitutional
Law (2nd ed. 1997), at pp. 597 and 646. Indeed Macklem et al. write at p.
597: “Added to the Charter at the last moment, this controversial provision
captured the final political compromise among the provinces and federal government
that facilitated the adoption of the Charter ”. There is little evidence of the
intention behind excluding democratic rights (along with mobility rights,
language rights, and enforcement provisions) from the ambit of s. 33 , nor has
this Court ever seriously considered the significance of such exclusion. The
Chief Justice’s conclusion at para. 11 that “[t]he framers of the Charter signaled
the special importance of this right . . . by exempting it from legislative
override . . .” requires examination before it can be used as
support for nearly insulating the right to vote from s. 1 limitations. In
fact, s. 33 and s. 1 are clearly different in their purpose, and the Charter
clearly distinguishes their application to the right to vote. It does not
behoove the Court to read s. 33 into s. 3 by finding in s. 3 , when divorced
from s. 1 , the statement of a political philosophy which preempts another
political philosophy which is reasonable and justified under the latter
section. The Charter was not intended to monopolize the ideological
space.
97
There is a flaw in an analysis which suggests that because one social or
political philosophy can be justified, it necessarily means that another social
or political philosophy is not justified: in other words, where two social or
political philosophies exist, it is not by approving one that you disprove the
other. Differences in social or political philosophy, which result in
different justifications for limitations upon rights, are perhaps inevitable in
a pluralist society. That having been said, it is only those limitations which
are not reasonable or demonstrably justified in a free and democratic society
which are unconstitutional. Therefore, the most significant analysis in this
case is the examination of the social or political philosophy underpinning the
justification advanced by the Crown. This is because it will indicate whether
the limitation of the right to vote is reasonable and is based upon a
justification which is capable of being demonstrated in a free and democratic
society. If the choice made by Parliament is such, then it ought to be
respected. The range of choices made by different legislatures in different
jurisdictions, which I will review below, supports the view that there are many
resolutions to the particular issue at bar which are reasonable; it
demonstrates that there are many possible rational balances.
98
The role of this Court, when faced with competing social or political
philosophies and justifications dependent on them, is therefore to define the parameters
within which the acceptable reconciliation of competing values lies. The
decision before this Court is therefore not whether or not Parliament has made
a proper policy decision, but whether or not the policy position chosen is an
acceptable choice amongst those permitted under the Charter . This was
the view advanced by Linden J.A. for the Court of Appeal ([2000] 2 F.C. 117, at
para. 60):
Whether paragraph 51(e) of the Act is good
penal policy or good public policy is not at issue in this appeal. It
is not the role of this Court to decide what works with regard to penal policy
and what does not. It is not the role of this Court to determine what theories
of penology should be adopted by our elected legislatures. This case is about
what, if anything, Parliament may or may not do to interfere with prisoner
voting rights within the bounds of section 1 of the Charter . At issue is
whether the statutory prohibition is sufficiently tailored and appropriately
proportional, or whether Parliament must try again to fashion a still narrower
bar, adopt a different approach, or abandon the objective altogether. [Emphasis
in original.]
This Court has
often affirmed this view that courts must be cautious not to unduly interfere
in decisions which involve the balancing of conflicting policy considerations:
see Reference re Public Service Employee Relations Act (Alta.), [1987] 1
S.C.R. 313, per Le Dain J., at p. 392; Canada v. Schmidt, [1987]
1 S.C.R. 500, per La Forest J., at pp. 522-23; Canada (Auditor
General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2
S.C.R. 49, per Dickson C.J., at pp. 90-92.
D) Symbolic
Arguments and Evidentiary Problems
99
A subject that is related to and follows from the above discussion
concerning the evaluation of competing social or political philosophies is the
role of symbolic arguments in Charter adjudication. In the context of
the Charter analysis, it is important not to downplay the importance of
symbolic or abstract arguments. Symbolic or abstract arguments cannot be
dismissed outright by virtue of their symbolism: many of the great principles,
the values upon which society rests, could be said to be symbolic. In fact,
one of the more important dimensions of s. 3 of the Charter is clearly
its symbolism: the affirmation of political equality reflected in all citizens
being guaranteed the right to vote, subject only to reasonable limits prescribed
by law that can be demonstrably justified in a free and democratic society.
The case at bar concerns debates about symbolism, as the arguments involved
relate to abstract concepts such as democracy, rights, punishment, the rule of
law and civic responsibility. To choose a narrow reading of rights over the
objectives advanced by Parliament is to choose one set of symbols over another.
100
In her reasons, the Chief Justice claims at para. 16 that Parliament is
relying on “lofty objectives”, and suggests at para. 23 that the presence of
“symbolic and abstract” objectives is problematic. However, the reasons of the
Chief Justice have the very same objective — to protect the value of the right
to vote and the rule of law — and rely on equally vague concepts. Breaking
down the meaning and value of the right to vote, one is unavoidably led to
abstract and symbolic concepts such as the rule of law, the legitimacy of law
and government, and the meaning of democracy. The Chief Justice discusses
these concepts at length, along with theories of individual motivation. For
instance, relying on the philosopher J. S. Mill, she suggests at para. 38 that
“[t]o deny prisoners the right to vote is to lose an important means of
teaching them democratic values and social responsibility”. This type of
statement is as symbolic, abstract and philosophical as the government’s claim
that denying serious incarcerated criminals the right to vote will strengthen
democratic values and social responsibility.
101
Most of the evidence in this case is that of expert opinions on the
matters of political theory, moral philosophy, philosophy of law, criminology,
correctional policy, and penal theory. I would suggest distinguishing between
two kinds of expert evidence in this case. First, there is very limited social
scientific evidence, e.g. in the field of criminology, that seeks to establish
the practical or empirical consequences of maintaining or lifting the ban on
prisoner voting. Second, there is copious expert testimony in the nature of
legal and political philosophy. I do not think that the Court need necessarily
defer to this second type of expertise, or take into account the “skill” and
“reputation” of the experts in weighing this evidence (as the trial judge purported
to do at [1996] 1 F.C. 857, at pp. 865-66). First, most if not all of the
philosophers or theorists on which these experts rely never in fact even
addressed the specific issue of prisoner enfranchisement or
disenfranchisement. Second, legal theory expert testimony in this context
essentially purports to justify axiomatic principles. Therefore, these
arguments are either persuasive or not. In this context, it is appropriate for
courts to look not only to such theoretical arguments but also beyond, to
factors such as the extent of public debate on an issue, the practices of other
liberal democracies and, most especially, to the reasoned view of our
democratically elected Parliament.
102
The evidence in this case, offered by both the appellants and the Crown,
is abstract and symbolic and does not lend itself to being easily
demonstrated. For example, it was submitted before this Court that the Crown
ought to have to demonstrate actual benefits or actual effectiveness of the
provision which Parliament has chosen. On the facts, this is a nearly
impossible task. The same demand, however, if made with regard to the
effectiveness of the Criminal Code in general or in its specific
provisions, would raise similar challenges: can it be shown that the Criminal
Code is generally effective? It is as if to say that because there are
still criminals, we ought to do away with the Criminal Code , because the
existence of crime itself points towards an effectiveness problem. Symbolic or
abstract arguments must be examined seriously for what they are, because that
is effectively all that is before this Court. Further, one must not deny that
the choices between and the interpretation of these symbolic or abstract
arguments are clearly connected to significant concrete effects.
103
A key justification before this Court, to be analysed in depth below, is
that serious crime reflects contempt for the rule of law and a rejection of the
basis for the operation of a free and democratic society. This, if it is
symbolic or abstract, reflects a core value of the community, a value that is
reflected throughout the Criminal Code and in the provision before us
today. As will be argued below, this value is based on a reasonable social or
political philosophy. Temporarily removing the vote from serious criminal
offenders while they are incarcerated is both symbolic and concrete in effect.
Returning it on being released from prison is the same.
E)
“Dialogue” and Deference
104
Linden J.A., in the Federal Court of Appeal below, stressed the
importance of deference to Parliament. In para. 56 of his reasons, he stated:
This case is another episode in the continuing
dialogue between courts and legislatures on the issue of prisoner voting. In
1992 and 1993, two appeal courts and the Supreme Court of Canada held that a
blanket disqualification of prisoners from voting, contained in earlier
legislation which was challenged, violated section 3 of the Charter and could
not be saved by section 1 of the Charter . Parliament responded to this
judicial advice by enacting legislation aimed at accomplishing part of its
objectives while complying with the Charter . That legislation, which is being
challenged in this case, disqualifies from voting only prisoners who are
serving sentences of two years or more. [Footnotes omitted.]
This Court has
stressed the importance of “dialogue” in Vriend v. Alberta, [1998]
1 S.C.R. 493, at paras. 138-39, and in Mills, supra, at
paras. 20, 57 and 125. (See also P. W. Hogg and A. A. Bushell, “The Charter
Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J.
75.) I am of the view that since this case is about evaluating choices
regarding social or political philosophies and about shaping, giving
expression, and giving practical application to values, especially values that
may lie outside the Charter but are of fundamental importance to
Canadians, “dialogue” is of particular importance. In my view, especially in
the context of the case at bar, the heart of the dialogue metaphor is that
neither the courts nor Parliament hold a monopoly on the determination of
values. Importantly, the dialogue metaphor does not signal a lowering of
the s. 1 justification standard. It simply suggests that when, after a full
and rigorous s. 1 analysis, Parliament has satisfied the court that it has
established a reasonable limit to a right that is demonstrably justified in a
free and democratic society, the dialogue ends; the court lets Parliament have
the last word and does not substitute Parliament’s reasonable choices with its
own.
105
Linden J.A. stressed the need for deference to Parliament’s having
chosen to draw a particular line regarding which criminal offences are serious
enough to warrant the loss of the vote. I suggest that regardless of the
relationship between the timing of the Royal Assent to the modifications to s.
51(e) of the Act and the decision of this Court in the first Sauvé
case, there has been, generally, “dialogue” undertaken between the courts and
Parliament. “Dialogue” has existed insofar as Parliament had been addressing,
since well before the decision of the Court of Appeal below, an evaluation of
the nature of the right to vote, and specifically, the issue of prisoner
disenfranchisement. This evaluation was obviously undertaken with the many
cases concerning prisoner disenfranchisement that had occurred up to that point
in mind, including: Re Jolivet and The Queen (1983), 1 D.L.R. (4th) 604
(B.C.S.C.); Gould v. Canada (Attorney General), [1984] 2 S.C.R. 124,
aff’g [1984] 1 F.C. 1133 (C.A.), rev’g [1984] 1 F.C. 1119 (T.D.); Lévesque
v. Canada (Attorney General), [1986] 2 F.C. 287 (T.D.); Badger v.
Attorney-General of Manitoba (1986), 30 D.L.R. (4th) 108 (Man. Q.B.), aff’d
(1986), 32 D.L.R. (4th) 310 (Man. C.A.); Badger v. Canada (Attorney General)
(1988), 55 Man. R. (2d) 211 (Q.B.), rev’d (1988), 55 D.L.R. (4th) 177 (Man.
C.A.), leave to appeal refused, [1989] 1 S.C.R. v; Sauvé v. Canada (Attorney
General) (1988), 66 O.R. (2d) 234 (H.C.), rev’d (1992), 7 O.R. (3d) 481
(C.A.); Belczowski v. Canada, [1991] 3 F.C. 151 (T.D.), aff’d [1992] 2
F.C. 440 (C.A.). What is also particularly relevant is that s. 51(e) of
the Act received Royal Assent on May 6, 1993, well after both the Ontario Court
of Appeal handed down its decision in the first Sauvé case (March 25,
1992) and the Federal Court of Appeal handed down its decision in Belczowski
(February 17, 1992).
106
I note as well that a Royal Commission on Electoral Reform and Party
Financing, the “Lortie Commission”, was established in November 1989. The
Final Report of that Commission was submitted to Cabinet in November 1991.
That report canvassed specifically the issue of the disqualification of certain
groups of voters, including prison inmates.
107
To repeat: deference does not mean that this Court must not rigorously
examine the justifications presented by the Crown for s. 51(e) of the
Act. As Iacobucci J. noted in his partial dissent in Little Sisters Book
and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120,
2000 SCC 69, at para. 221: “While deference is appropriate, our Court cannot
abdicate its duty to demand that the government justify legislation limiting Charter
rights.” This point was also discussed by McLachlin J. in RJR-MacDonald,
supra, at para. 136, explaining that there is a fine line between the
appropriateness of deference and the role of this Court to safeguard Charter
rights:
. . . care must be taken not to extend the notion of deference too
far. Deference must not be carried to the point of relieving the government of
the burden which the Charter places upon it of demonstrating that the
limits it has imposed on guaranteed rights are reasonable and justifiable.
Parliament has its role: to choose the appropriate response to social problems
within the limiting framework of the Constitution. But the courts also have a
role: to determine, objectively and impartially, whether Parliament’s choice
falls within the limiting framework of the Constitution. The courts are no
more permitted to abdicate their responsibility than is Parliament. To carry judicial
deference to the point of accepting Parliament’s view simply on the basis that
the problem is serious and the solution difficult, would be to diminish the
role of the courts in the constitutional process and to weaken the structure of
rights upon which our constitution and our nation is founded.
108
Most basically, what the commentary regarding “dialogue” and deference
goes to in this case is keeping in mind the importance of what was discussed
above regarding the existence of competing social or political philosophies
when embarking upon flexible and contextual s. 1 Charter analysis. In
the specific factual context of the case at bar, I think that this challenge
was well summarized by Lord Justice Kennedy in a recent case from the United Kingdom
regarding prisoner disenfranchisement in the context of the U.K.’s
incorporation in the Human Rights Act 1998 (U.K.), 1998, c. 42, of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (also known as the European Convention on Human Rights (“ECHR”)),
213 U.N.T.S. 221. In Pearson v. Secretary of State for the Home Department,
[2001] E.W.J. No. 1566 (QL) (Div. Ct.), Lord Justice Kennedy stated, at para.
23:
As Parliament has the responsibility for deciding
what shall be the consequences of conviction by laying down the powers and
duties of a sentencing tribunal or other body it necessarily follows that lines
have to be drawn, and that on subsequent examination a case can be made in
favour of the line being drawn somewhere else, but in deference to the
legislature courts should not easily be persuaded to condemn what has been
done, especially where it has been done in primary legislation after careful
evaluation and against a background of increasing public concern about crime.
F) A
Rational and Reasonable Social or Political Philosophy Underpins the
Crown’s Justification for the Limitation of the Section 3 Right
109
What social or political philosophy has motivated Parliament to insist
on the temporary disenfranchisement of prisoners? Is it reasonable and
rational? I suggest that, in enacting s. 51(e) of the Act and in
providing a justification of that provision before the courts, Parliament has
indicated that it has drawn a line. This line reflects a moral statement about
serious crime, and about its significance to and within the community. The
core of this moral statement is the denunciation of serious crime, serious
antisocial acts. Parliament has indicated that criminal conduct of such
severity that it warrants imprisonment for a sentence of two years or more also
carries with it the disenfranchisement of the offender for the duration of his
or her incarceration. Most importantly, as I will develop below, this basis for
the Crown’s justification is both rational and reasonable.
110
The fact that the line drawn is related to sentences which flow from the
commission of crimes under the Criminal Code is of great relevance. As
noted above, this Court has held that the Criminal Code and its
provisions are declaratory of values, values on which society rests: see Keegstra,
supra, at pp. 769 and 787. Therefore, it is perfectly appropriate to
look to these underlying values and their explanation to assist in the seeking
of a reconciliation of the competing interests at hand. With regard to
importing such values into Charter analysis, I refer not only to my
discussion above regarding reading s. 3 of the Charter with s. 1 , but
also to the oft-cited statement by Dickson C.J. for the majority in Slaight
Communications, supra, at p. 1056, that “[t]he underlying
values of a free and democratic society both guarantee the rights in the Charter
and, in appropriate circumstances, justify limitations upon those rights.”
111
In my concurring opinion in Butler, supra, I discussed the
legitimate role of the state to act on the basis of morality. I stated, at p.
522, that “I cannot conceive that the State could not legitimately act on the
basis of morality. Since its earliest Charter pronouncements, this
Court has acknowledged this possibility”. I continued at pp. 523-24:
In a pluralistic society like ours, many different conceptions of the
good are held by various segments of the population. The guarantees of s. 2 of
the Charter protect this pluralistic diversity. However, if the holders
of these different conceptions agree that some conduct is not good, then the
respect for pluralism that underlies s. 2 of the Charter becomes less
insurmountable an objection to State action . . . . In this sense a wide
consensus among holders of different conceptions of the good is necessary
before the State can intervene in the name of morality. This is also comprised
in the phrase “pressing and substantial”.
112
This view of the role of morality in law has been developed by Professor
J. Raz, who states in his book The Morality of Freedom (1986), at p.
133, that “. . . it is the goal of all political action to enable individuals
to pursue valid conceptions of the good and to discourage evil or empty ones”.
I agree with this view. In Making Men Moral (1993), at p. 170,
Professor R. P. George describes Professor Raz’s view as the following:
. . . political theory cannot prescind from questions of individual
morality — it cannot simply leave individual morality to the individual. The
principles of political morality are tightly connected to the principles that
establish the moral rectitude or culpability of individual action. He
[Professor Raz] does not conclude that the state is warranted in enforcing
every moral norm; but he does argue that the state cannot adopt a position of
neutrality with respect to these norms.
113
In my view, the real challenge is not justifying state activity on the
basis of morality in the abstract, but determining which specific moral claims
are sufficient to warrant consideration in determining the extent of Charter
rights. As I quoted in Butler, supra, at p. 523, Professor R.
Dworkin’s Taking Rights Seriously (1977) notes, at p. 255, that:
The claim that a moral consensus exists is not
itself based on a poll. It is based on an appeal to the legislator’s sense of
how his community reacts to some disfavored practice. But this same sense
includes an awareness of the grounds on which that reaction is generally
supported. If there has been a public debate involving the editorial columns,
speeches of his colleagues, the testimony of interested groups, and his own
correspondence, these will sharpen his awareness of what arguments and
positions are in the field. He must sift these arguments and positions, trying
to determine which are prejudices or rationalizations, which pre-suppose
general principles or theories vast parts of the population could not be
supposed to accept, and so on.
The issue is
therefore identifying what amounts to a fundamental enough conception of
morality. In Butler, supra, at p. 523, I developed reasoning to
assist in such identification. The first inquiry to be satisfied is that the
moral claim is grounded, meaning that it “. . . must involve concrete problems
such as life, harm, well-being . . . and not merely differences of opinion or
of taste. Parliament cannot restrict Charter rights simply on the basis
of dislike; this is what is meant by the expression ‘substantial and pressing’
concern”. The second inquiry is that “. . . a consensus must exist among the
population on these claims. They must attract the support of more than a
simple majority of people”.
114
In the case at bar, the provision in question denounces serious crime,
with a view to enhancing the general purposes of the criminal sanction and to
promoting civic responsibility and the rule of law. Surely such objectives
qualify as reflecting a “fundamental conception of morality”. Attention to what
is “moral” is concerned “. . . with the distinction between
right and wrong” (Concise Oxford Dictionary (9th ed. 1995)). The
provision in question, like the Criminal Code in its entirety, by virtue
of the focus upon criminal activity, is addressed at specifically this.
115
The denunciation of crime and its effects on society is often explained
by reference to the notion of the social contract. The social contract is the
theoretical basis upon which the exercise of rights and participation in the
democratic process rests. In my view, the social contract necessarily relies
upon the acceptance of the rule of law and civic responsibility and on
society’s need to promote the same. The preamble to the Charter
establishes that “. . . Canada is founded upon principles that recognize the
supremacy of God and the rule of law. . .”. In Reference re Manitoba
Language Rights, [1985] 1 S.C.R. 721, at p. 750, this Court cited with
approval a passage from The Authority of Law (1979) by Professor Raz,
wherein he states that “‘The rule of law’ means literally what it says . . . .
It has two aspects: (1) that people should be ruled by the law and obey it,
and (2) that the law should be such that people will be able to be guided by
it.” The important point arising from that passage is the corollary that
promoting law-abiding behaviour can be thought to be a dimension of the rule of
law as well. Further, the rule of law, as was said in the Reference re
Secession of Quebec, [1998] 2 S.C.R. 217, at p. 257, “vouchsafes to the
citizens and residents of the country a stable, predictable and ordered society
in which to conduct their affairs.” Given its fundamental importance in our
society, it is not surprising that Parliament occasionally insists on taking
some action to promote it, to safeguard it. As was stated by Wilson J. in Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 489: “There is no
liberty without law and there is no law without some restriction of liberty:
see Dworkin, Taking Rights Seriously (1977), p. 267.”
116
Permitting the exercise of the franchise by offenders incarcerated for
serious offences undermines the rule of law and civic responsibility because
such persons have demonstrated a great disrespect for the community in their
committing serious crimes: such persons have attacked the stability and order
within our community. Society therefore may choose to curtail temporarily the
availability of the vote to serious criminals both to punish those criminals
and to insist that civic responsibility and respect for the rule of law, as
goals worthy of pursuit, are prerequisites to democratic participation. I say
“goals worthy of pursuit” because it is clear that not all those who are
otherwise eligible to vote are guaranteed to exercise civic responsibility,
since, for example, there may be serious criminal offenders who may have
avoided being apprehended and therefore still vote. This does not, however,
detract from the laudability of the goal.
117
Related to the notion of the social contract is the importance of
reinforcing the significance of the relationship between individuals and their
community when it comes to voting. This special relationship is inherent in
the fact that it is only “citizens” who are guaranteed the right to vote within
s. 3 of the Charter . This limitation of the scope of s. 3 of the Charter
stands in stark contrast to the protections offered by the fundamental
freedoms, legal rights, and equality rights in the Charter , which are
available to “everyone” or to “every individual”. I am of the view that this
limitation reflects the special relationship, characterized by entitlements and
responsibilities, between citizens and their community. It is this special
relationship and its responsibilities which serious criminal offenders have
assaulted.
118
It is for this same reason, the importance of the nexus between voters
and their community, that many jurisdictions qualify the right to vote with
residency requirements. This Court, in Haig v. Canada, [1993] 2 S.C.R.
995, upheld residency requirements as a reasonable qualification to the
eligibility to vote in a referendum. While it is clear that there was no breach
of s. 3 of the Charter in that case since s. 3 does not apply to
referenda, Haig, supra, generally seems to imply that residency
requirements may be capable of being reasonable qualifications upon the right
to vote. This reasonableness arises not only from practical concerns, but also
from the nexus between a particular individual’s eligibility to vote in an
election, their relationship to the community, and the fact that it is that
community which will be subjected to the results of the election.
119
The American constitutional law scholar, Professor L. H. Tribe, notes in
his text American Constitutional Law (2nd ed. 1988), at p. 1084:
Every state, as well as the federal government,
imposes some restrictions on the franchise. Although free and open
participation in the electoral process lies at the core of democratic
institutions, the need to confer the franchise on all who aspire to it is
tempered by the recognition that completely unlimited voting could subvert the
ideal of popular rule which democracy so ardently embraces. Moreover, in
deciding who may and who may not vote in its elections, a community takes a
crucial step in defining its identity. If nothing else, even though anyone in
the world might have some interest in any given election’s outcome, a community
should be empowered to exclude from its elections persons with no real nexus to
the community as such. [Emphasis added.]
This analysis
explains why citizenship or residency is a reasonable minimum requirement for
voting, since such indicators are often equated with identification to a
particular political community. The importance of the nexus, however, also
helps to understand the context of the particular disenfranchisement in
question in the case at bar. The disenfranchisement of serious criminal
offenders serves to deliver a message to both the community and the offenders
themselves that serious criminal activity will not be tolerated by the
community. In making such a choice, Parliament is projecting a view of
Canadian society which Canadian society has of itself. The commission of
serious crimes gives rise to a temporary suspension of this nexus: on the
physical level, this is reflected in incarceration and the deprivation of a
range of liberties normally exercised by citizens and, at the symbolic level,
this is reflected in temporary disenfranchisement. The symbolic dimension is
thus a further manifestation of community disapproval of the serious criminal
conduct.
120
From the perspective of persons whose criminal activity has resulted in
their temporary disenfranchisement, their benefiting from society brought with
it the responsibility to be subjected to the sanctions which the state decides
will be attached to serious criminal activity such as they have chosen to
undertake. This understanding is complemented by the rehabilitative view that
those who are in jail will hope and expect to regain the exercise of the vote
on their release from incarceration, just like they hope and expect to regain
the exercise of the fullest expressions of their liberty. Once released from
prison, they are on the road to reintegration into the community. Obtaining the
vote once released or paroled is a recognition of regaining the nexus with the
community that was temporarily suspended during the incarceration.
121
In Haig, supra, at p. 1031, L’Heureux-Dubé J. stated for
the majority that “. . . in a democratic society, the right to vote
as expressed in s. 3 must be given a content commensurate with those values
embodied in a democratic state”. I am of the view that the objectives pursued
by Parliament in s. 51(e) of the Act do reflect values of the Canadian
community, values related specifically to safeguarding the integrity and health
of democracy itself. These goals may be abstract, but they are the foundation
of our society. These are important values upon which s. 1 of the Charter
itself rests. A dimension of the rule of law is taking measures to see that law
is obeyed. Therefore, the disenfranchisement of serious criminal offenders is
to be seen as protecting Canadian democracy rather than undermining it. It is
up to Parliament to enhance the value of the franchise. It has responded with
s. 51(e) of the Act, which is premised on the view that broadening of
the franchise does not, in all cases, necessarily mean strengthening it.
G) Prisoner Disenfranchisement in Canadian
Provinces, Other Countries, and International Law: Illustration of a Range of
Reasonable Balances
122
As I noted above, a review of the legislation regarding prisoner
disenfranchisement across Canadian provinces, in some other countries, and in
some international instruments assists in demonstrating that there are a range
of reasonable and rational balances that may be struck regarding this
particular issue.
123
In Canada, the situation across the provinces is obviously related to,
and to some extent reflects, the evolution of the ongoing controversy regarding
the federal legislation. That having been said, an overview of provincial
legislation actually demonstrates that a quite diverse range of balances has
been struck with regard to provincial electoral law. In Ontario, Quebec,
Newfoundland, Prince Edward Island, and Manitoba, all prisoners vote: Election
Statute Law Amendment Act, 1998, S.O. 1998, c. 9, s. 13, repealing R.S.O.
1990, c. E.6, s. 16; Election Act, R.S.Q., c. E-3.3, s. 273; Elections
Act, 1991, S.N. 1992, c. E‑3.1; Election Act, S.P.E.I. 1996,
c. 12; Elections Act, R.S.M. 1987, c. E30, s. 31 (rep. & sub.
S.M. 1998, c. 4, s. 21) disenfranchised “[e]very inmate of a correctional
facility serving a sentence of five years or more”, but it was struck down by
the Manitoba Court of Queen’s Bench in Driskell v. Manitoba (Attorney
General), [1999] 11 W.W.R. 615. In the Yukon, Saskatchewan and New
Brunswick, all inmates serving sentences of imprisonment are disenfranchised: Election
Act, 1996, S.S. 1996, c. E-6.01, s. 17; Elections Act, R.S.N.B.
1973, c. E-3, s. 43(2)(e); and Elections Act, R.S.Y. 1986, c. 48,
s. 5(d). The Alberta Court of Appeal in Byatt v. Dykema (1998), 158
D.L.R. (4th) 644, struck down legislation providing for complete prisoner
disenfranchisement, as it found itself bound by the decision of this Court in
the first Sauvé case. The Alberta Legislature then responded with
legislation which provides for the disenfranchisement of all incarcerated
persons serving a sentence of more than 10 days. Section 45(c) of the Election
Act, R.S.A. 2000, c. E-1, now declares ineligible to vote
persons who have been convicted of offences and on polling day are
serving their sentences in a correctional institution under the Corrections
Act, in a penitentiary under the Corrections and Conditional Release Act
(Canada), in a place of custody under the Young Offenders Act or the
Young Offenders Act (Canada) or in any other similar institution outside
Alberta, excluding persons sentenced to terms of imprisonment of 10 days or
less or for the non-payment of fines.
The law in
British Columbia, Nova Scotia, and the Northwest Territories and Nunavut
parallels s. 51(e) of the Act that is being challenged in the case at
bar: Election Act, R.S.B.C. 1996, c. 106, s. 30(b); Elections Act,
R.S.N.S. 1989, c. 140, s. 29(d) as amended by S.N.S. 2001, c. 43, s. 13; Elections
Act, R.S.N.W.T. 1988, c. E-2, s. 27(3), as amended by S.N.W.T. 1995, c. 14,
s. 6.
124
Turning to the United States, the U.S. Constitution does not explicitly
protect the vote. In fact, § 2 of the Fourteenth Amendment makes tangential
reference to the ability of the States to disenfranchise persons “. . . for
participation in rebellion, or other crime”. That having been said, the
Fifteenth Amendment provides that the vote cannot be denied “on account of
race, color, or previous conditions of servitude”. Other constraints on the
legislature’s ability to control the franchise include the Nineteenth
Amendment, which disallows denial of the vote “on account of sex”; the
Twenty-Fourth Amendment, which disallows denial “by reason of failure to pay
any poll tax or other tax”; and the Twenty-Sixth Amendment, which disallows
denial “on account of age” greater than 18 years.
125
In the United States, it is the states that have control of
disenfranchising inmates for both state and federal elections: U.S.
Constitution, Art. 1, § 2, cl. 1 (for the House of Representatives);
Seventeenth Amendment, § 1 (for the Senate). A general overview yields the
conclusion that nearly all states (48 of 50 plus the District of Columbia)
disqualify inmates incarcerated for felony offences for both state and federal
elections, while some disenfranchise offenders permanently. Only two states do
not disqualify at all: Maine and Vermont. In November 2000, the Massachusetts
electorate voted in favour of a State constitutional amendment limiting
prisoners’ voting rights.
126
A majority of the states which deprive inmates of the right to vote do
so for the entirety of their sentence, including parole: 32 states prohibit
felons from voting while they are on parole and 28 of those 32 also exclude
felony probationers. Other states allow a convicted felon to vote once
incarceration ends. Some states only remove the vote if the criminal has
committed certain crimes. A felon automatically regains the right to vote in
most states upon completion of his or her sentence. In a small number of
states, a felon must apply for a pardon to be permitted to vote. As mentioned
above, some states remove the vote from convicted felons even after they have
completed their sentences and paroles. This practice was upheld as constitutional
by the U.S. Supreme Court in Richardson v. Ramirez, 418 U.S. 24 (1974).
127
Looking now to Europe, Art. 3 of the First Protocol to the ECHR (Eur.
T.S. No. 9) guarantees “. . . free elections at reasonable intervals by secret
ballot, under conditions which will ensure the free expression of the opinion
of the people in the choice of the legislature”. Article 3 has been considered
on three occasions by the European Human Rights Commission (“the Commission”):
X. v. Netherlands, Application No. 6573/74, December 19, 1974, D.R. 1,
p. 87; H. v. Netherlands, Application No. 9914/82, July 4, 1983, D.R.
33, p. 242; and Holland v. Ireland, Application No. 24827/94, April 14,
1998, D.R. 93-A, p. 15.
128
In H. v. Netherlands, supra, the Commission established
that Art. 3 of the First Protocol to the ECHR recognizes the principle
of universal suffrage, but it also noted that the right to vote is not absolute
and noted that “a large number of State Parties to the Convention have adopted
legislation whereby the right to vote of a prisoner serving a term of
imprisonment of a specific duration is suspended in certain cases, even beyond
the duration of the sentence” (p. 245). The general principle which supported
the ability of the legislator to restrict the right to vote in respect of
convicted persons was addressed as follows, at p. 246:
Such restrictions can be explained by the notion of
dishonour that certain convictions carry with them for a specific period, which
may be taken into consideration by legislation in respect of the exercise of
political rights. Although, at first glance, it may seem inflexible that a
prison sentence of more than one year should always result in the suspension of
the exercise of the right to vote for three years, the Commission does not feel
that such a measure goes beyond the restrictions justifiable in the context of
Article 3 of the Protocol.
More recently,
in Holland, supra, the Commission, at pp. 26-27, made a reference
to:
. . . its constant case-law to the effect that, although Article 3 of
Protocol No. 1 implies a recognition of the principle of universal suffrage
(including the right to vote in elections for the legislature), this right is
neither absolute nor without limitations but subject to such restrictions which
are not arbitrary and which do not affect the expression of the opinion of the
people in the choice of the legislature. . . .
In that same
case, the Commission noted that it did not consider the disenfranchisement of
prisoners for the duration of their incarceration to affect the expression of
the opinion of the people in their choice of the legislature.
129
The European Court of Human Rights addressed the issue in the Mathieu-Mohin
and Clerfayt case, judgment of 2 March 1987, Series A No. 113. Therein,
the court found, at para. 51, that Art. 3 of the First Protocol conferred the
right to vote and to stand for election, despite the wording of the Article,
which, on its face, seems not to confer such rights. The court went on to
state in para. 52 of its judgment, however, that:
The rights in question are not absolute. Since
Article 3 recognises them without setting them forth in express terms, let
alone defining them, there is room for implied limitations . . . . In their
internal legal orders the Contracting States make the rights to vote and to
stand for election subject to conditions which are not in principle precluded
under Article 3 . . . . They have a wide margin of appreciation in this
sphere, but it is for the Court to determine in the last resort whether the
requirements of Protocol No. 1 have been complied with; it has to satisfy
itself that the conditions do not curtail the rights in question to such an
extent as to impair their very essence and deprive them of their effectiveness;
that they are imposed in pursuit of a legitimate aim; and that the means employed
are not disproportionate . . . . In particular, such conditions must not
thwart “the free expression of the opinion of the people in the choice of the
legislature”.
130
European countries demonstrate a broad range of practices. Seventeen European
countries have no form of electoral ban for incarcerated offenders: Bosnia,
Croatia, Cyprus, Denmark, Iceland, Ireland, Finland, Latvia, Lithuania,
Macedonia, Netherlands, Poland, Slovenia, Spain, Sweden, Switzerland and the
Ukraine. In Greece, prisoners serving life sentences or indefinite sentences
are disqualified; otherwise the matter is left to the discretion of the court.
In some other European countries, electoral disqualification depends on the
crime committed or the length of the sentence: Austria, Malta and San Marino
ban all prisoners serving more than one year from voting; Belgium disqualifies
all offenders serving sentences of four months or more; Italy disenfranchises
based on the crime committed and/or the sentence length; Norway removes the
vote for prisoners sentenced for specific offences; and in France and Germany,
the disqualification of a prisoner is dependent upon the sentence handed down
by the court specifically providing for disenfranchisement (in France, certain
crimes are identified which carry automatic forfeiture of political rights; in
Germany, prisoners convicted of offences which target the integrity of the
German state or its democratic order lose the vote). Armenia, Bulgaria, the
Czech Republic, Estonia, Hungary, Luxembourg, Romania and Russia all have
complete bans for sentenced offenders.
131
Australia, New Zealand and the United Kingdom all disenfranchise at
least some of the inmate population. In Australia, prisoners vote in two of
seven states. In federal elections, inmates serving sentences of five years or
more are disqualified from voting. In New Zealand, prisoners serving sentences
for three years or more, preventative detention or life imprisonment are not
qualified to vote. In the United Kingdom, prisoners are completely
disenfranchised for Parliamentary elections, elections to the European
Assembly, and local government elections: s. 3(1) of the Represention of
the People Act 1983 (U.K.), 1983, c. 2 (as amended in 1985 and 2000), and
s. 2(1) of Schedule 1 to the European Assembly Elections Act 1978
(U.K.), 1978, c. 10. The only exceptions are for remand prisoners, persons
imprisoned for contempt of court and persons detained for default in complying
with their sentence.
132
When the Human Rights Act 1998 came into force in the United
Kingdom in October 2000, the guarantee found in Art. 3 of Protocol No. 1 to the
ECHR became part of U.K. law. Three prisoners recently challenged the
ban on prisoners’ voting as contained in the Representation of the People
Act 1983, as being incompatible with the Human Rights Act 1998:
Pearson, supra. In that case, the court construed the question
before it as whether s. 3(1) of the Representation of the People Act 1983 satisfied
the standard outlined by the European Court of Human Rights in Mathieu-Mohin,
supra. The analysis undertaken therein by Lord Justice Kennedy is
informative, and very much in line with my disposal of the case at bar. In
fact, Lord Justice Kennedy devoted much of his analysis to the Canadian
experience, and he specifically approved of the reasoning of Linden J.A. in the
Federal Court of Appeal in the case at bar, with which I substantially agree.
Lord Justice Kennedy found that the balancing that was undertaken in the
Canadian constitutional context was highly informative for the balancing which
had to be undertaken under Art. 3 of Protocol No. 1 to the ECHR, as
incorporated in the Human Rights Act 1998. Lord Justice Kennedy stated,
at para. 50, that:
. . . there is a broad spectrum of approaches among democratic
societies, and the United Kingdom falls into the middle of the spectrum. In
course of time this position may move, either by way of further fine tuning, as
was done recently in relation to remand prisoners and others, or more
radically, but its position in the spectrum is plainly a matter for Parliament not
for the courts.
I find this
informative, especially in light of the fact that the line chosen by Parliament
in Canada in s. 51(e) of the Act is far more moderate than the line
drawn by Parliament in the United Kingdom.
133
Certain international instruments also address the issue of prisoner
voting. Article 25 of the International Covenant on Civil and Political
Rights (“ICCPR”) states that every citizen shall have the “right and
the opportunity” to vote “without unreasonable restrictions”: ICCPR,
999 U.N.T.S. 171, entered into force March 23, 1976. The United Nations Human
Rights Committee, in a comment on Art. 25 of the ICCPR, stated that
restrictions on the right to vote should be “objective and reasonable” and that
“[i]f conviction for an offence is a basis for suspending the right to vote,
the period of such suspension should be proportionate to the offence and the
sentence”: “General Comment Adopted by the Human Rights Committee under
Article 40, Paragraph 4 of the International Covenant on Civil and Political
Rights”, General Comment No. 25 (57), Annex V, CCPR/C/21, Rev. 1, Add. 7,
August 27, 1996. It is likely caveats, such as the one in Art. 25 of the ICCPR,
which led the international non-governmental organization Penal Reform International,
in their 1995 publication Making Standards Work — An International Handbook
on Good Prison Practice, at pp. 13-14, to distinguish between “retained
rights”, which it advocated must be retained in a prison setting, and other
rights which may be limited, amongst which was listed the right to vote.
134
Therefore, when one looks to the range of balances selected by Canadian
provinces, other countries, and as reflected in international instruments, it
becomes clear that in theory there is not a single response to the question at
hand. The overview presents a range of reasonable and rational balances which
have been struck. On the spectrum which is the result of the above overview,
Canada’s line appears quite moderate.
H) Application
of the Oakes Test
135
With all of the above commentary regarding flexibility, context,
especially the relationship between the justification put forth by the Crown
and a reasonable and logical prior social or political philosophy, the role of
symbolic arguments, the importance of deference, and the variety of reasonable
and rational balances struck by Canadian provinces and within the international
community in mind, I now turn to the application of the Oakes test
itself.
(1) Is the Limit Prescribed by Law?
136
It is obvious that the limit is prescribed by law: s. 51(e) of
the Act is clear and not vague.
(2) Are the Objectives Pressing and Substantial?
137
The task of the Court at this phase of the Oakes test is to
determine whether the concern which prompted the enactment of the impugned
provision is pressing and substantial and whether the purpose of the
legislation is one of sufficient importance: Irwin Toy, supra, at
p. 987, per Dickson C.J., Lamer J. (as he then was) and Wilson J. At
this stage, there is an important distinction to be made between the objective
and the means chosen to implement that objective, since this phase is related
to the Court’s checking that the objectives are consistent with the principles,
integral in a free and democratic society, pressing and substantial and
directed to the realization of collective goals of fundamental importance: Oakes,
supra, at pp. 138-39.
138
As a preliminary matter I think it is important to stress that, given
the nature of the impugned provision and the nature of this particular context,
it is advisable to not become over-constrained by the specific language or
formulation of the objectives offered by the Crown. Therefore, I agree with
Linden J.A. in his general statement, at para. 99:
. . . I would leave to philosophers the determination of the “true
nature” of the disenfranchisement. It may be argued that this legislation does
different things — it imposes a civil consequence, it fixes a civil disability,
it imposes a criminal penalty, it furthers a civic goal, it promotes an
electoral goal, or it is part of the sentencing process. I believe that these
arguments, made alone, are of limited assistance. There are elements of all
these ideas and ideals at work here. [Emphasis in original.]
139
Parliament’s two principal objectives in s. 51(e) of the Act,
accepted by both the trial judge and the Federal Court of Appeal below, are:
the enhancement of civic responsibility and respect for the rule of law, and
the enhancement of the general purposes of the criminal sanction. Above, I
developed the view that these objectives are based upon a reasonable and
rational social or political philosophy. Thus, I am of the view that any
provision which seeks to advance such objectives clearly has a pressing and
substantial purpose.
140
With regard to the first objective, that of enhancing civic
responsibility and respect for the rule of law, the Crown submits that it
basically relates to the promotion of good citizenship. This objective also
reflects society’s desire to buttress the rule of law. I discussed both of
these notions above, where I addressed how they relate to a reasonable and
rational political or social philosophy, the view that the social rejection of
serious crime reflects a moral line which safeguards the social contract and
the rule of law and bolsters the importance of the nexus between individuals
and the community.
141
The Crown submits that it is illustrative to look to other jurisdictions
so as to note that many liberal democracies do limit prisoner voting. The
trial judge, agreeing with Strayer J. in Belczowski (at the trial
level), supra, questioned the usefulness of looking to other
jurisdictions. Particularly, after having surveyed the evidence, Wetston J. at
trial below noted that it was difficult to draw meaningful conclusions about
why some free and democratic societies disenfranchise criminal offenders while
others do not. It has been submitted that the fact that there is no single
accepted theoretical basis for liberal democracy, no unified liberal political
theory, means that civic responsibility should not be considered a significant
objective of public policy. I do not agree with this submission. I acknowledge
that the practices of other liberal democracies, as reviewed above, are mixed.
I suggest, however, that while such evidence is clearly not capable of
disposing of the issue, it is highly relevant. The examination of other
liberal democracies simply demonstrates that there is a range of reasonable and
rational balances that have been struck. The promotion of civic responsibility
does not hinge on there being a single theory for liberal democracy. The lack
of there being a unified political theory is, so to speak, the point of
the overview. Reasonable and rational persons and legislatures disagree on the
issue of prisoner disenfranchisement.
142
As noted above, it has been alleged that the “promotion of civic
responsibility” is excessively abstract, generalized, symbolic, unrealistic and
ambiguous. I spent some time above discussing that symbolic or abstract
purposes can be valid of their own accord and must not be downplayed simply for
the reason of their being symbolic.
143
The crux of the trial judge’s analysis regarding this first objective is
found at pp. 882-83 of his reasons:
. . . attention must be focussed on the democratic ideals which Canada,
as a free and democratic society, fosters. There may well be no unified
western tradition of political theory, but it is clear from the evidence in
this trial that civic and moral responsibility are key components of our
liberal democratic traditions. In fact, the preamble to the Charter declares
that Canada is founded upon principles that recognize “the rule of law”. The
rule of law may be the subject of a number of interpretations, such as a call
to law and order, or a legal ordering of social life: J. Rawls, A Theory of
Justice . . . at pages 235-243. The ideals of the rule of law express the
requirements of legal rules formulated in such a manner as to secure voluntary
compliance with the standard of conduct which they set. Of course, while no
legal system can expect that all of its laws will be known by the public, it is
nevertheless important, as part of the shaping of the voluntary social order,
for persons to know in advance what the consequences of their actions might
be: E. Colvin, “Criminal Law and The Rule of Law” in Crime, Justice &
Codification . . . at page 125.
144
The pressing and substantial nature of this objective was agreed with by
the majority of the Federal Court of Appeal below. To support this, Linden
J.A. cited as fn. 103 in para. 100 a passage from the decision of this Court in
Harvey, supra, where the majority of this Court upheld similarly
abstract objectives. At para. 38 of that case, La Forest J. wrote that:
I have no doubt that the primary goal of the impugned legislation is to
maintain and enhance the integrity of the electoral process. Nor do I doubt
that such an objective is always of pressing and substantial concern in any
society that purports to operate in accordance with the tenets of a free and
democratic society. [Emphasis added.]
I am of the
view that the objectives advanced in the case at bar are highly similar and are
clearly pressing and substantial.
145
Turning now to the second objective, that of the enhancement of the
general purposes of the criminal sanction, the Crown submits that this objective
has retributive, denunciatory and morally educative functions. The appellants
submit that this is an additional and gratuitous punishment, and serves only to
comfort those outside prison by further stigmatizing those in prison as
disconnected social outcasts. They submit that a retributive philosophy of
punishment does not correspond to the empirical realities of present-day
Canadian society.
146
Hugessen J.A., in Belczowski at the Federal Court of Appeal, and
Arbour J.A., in the first Sauvé case, were of the view that
disenfranchisement of prisoners is problematic since it effectively amounts to
a “punishment for imprisonment rather than for the commission of an offence”.
I disagree. Disenfranchisement arising from s. 51(e) of the Act is
directly related to the length of the sentence, reflecting the nature of the
criminal offence and the criminal activity committed. It is a valid objective
for Parliament to develop appropriate sanctions and punishments for serious
crime. Further, it cannot be necessary for the nature of a sanction to be in
some way directly related to the nature of the crime perpetrated, i.e. that
only those convicted of electoral offences be deprived of the vote. As
discussed above, incarcerated persons lose the vote because they have been
convicted of serious criminal offences and are the subjects of punishment. The
disenfranchisement is a civil disability arising from the criminal conviction.
The key fact which gives rise to the disenfranchisement is serious criminal activity
as identified by Parliament.
147
The trial judge held that s. 51(e) of the Act clearly does have a
punitive aspect with a retributive function. This conclusion was adopted by
Linden J.A. at the Court of Appeal, in para. 100.
Paragraph 51(e) of the CEA has a punitive
aspect. There is little doubt that retribution is a concept that is not alien
to criminal sanctions. Indeed, sentences are invariably partly punitive in
nature. As stated by La Forest J. in R. v. Lyons . . . at page 329: “In
a rational system of sentencing, the respective importance of prevention,
deterrence, retribution and rehabilitation will vary according to the nature of
the crime and the circumstances of the offender.” See also R. v. Goltz
. . . at page 503.
148
I am of the view that there was no error made by the courts below in
identifying the objectives and in determining them to be pressing and
substantial. I think that the importance of both objectives is obvious.
(3) Proportionality
(a) Rational Connection
149
This first branch of the proportionality inquiry demands that this Court
examine whether there is a rational connection between the disenfranchisement
in s. 51(e) of the Act and the objectives of the legislation.
Therefore, the question is whether Parliament had a reasonable basis, based on
the arguments and evidence advanced, for thinking that the temporary
disenfranchisement of serious criminal offenders would augment civic
responsibility and respect for the rule of law and enhance the general purposes
of the criminal sanction. In Lavigne v. Ontario Public Service Employees
Union, [1991] 2 S.C.R. 211, at p. 291, Wilson J. summarized what this
inquiry demands:
The Oakes inquiry into “rational connection”
between objectives and means to attain them requires nothing more than a
showing that the legitimate and important goals of the legislature are logically
furthered by the means government has chosen to adopt. [Emphasis added.]
150
This Court has unanimously agreed that “[r]ational connection is to be
established, upon a civil standard, through reason, logic or simply common
sense”: RJR-MacDonald, supra, per La Forest J., at para.
86, McLachlin J., at paras. 156-58, and Iacobucci J., at para. 184; referred to
in Thomson Newspapers, supra, at para. 39. The existence of
scientific proof is simply of probative value in supporting this reason, logic
or common sense. In the case at bar, as discussed above, a causal relationship
between disenfranchising prisoners and the objectives approved of above is not
empirically demonstrable. However, this Court has clearly stated that
Parliament must be afforded a margin of appreciation in regard to legitimate
objectives which may, nonetheless, be based upon somewhat inconclusive social science
evidence: Sopinka J. in Butler, supra, at pp. 502-3. I offer
two examples: in Butler, Sopinka J. found, at p. 502, that it was
“reasonable to presume” that there was a causal relationship between obscenity
and harm to society, and in Ross v. New Brunswick School District No. 15,
[1996] 1 S.C.R. 825, at para. 101, La Forest J. stated that it was “reasonable
to anticipate” that there was a causal link between anti-Semitic activity by
school teachers outside school and discriminatory attitudes within school.
Thus, it is clear that this Court’s approach to this dimension of the test
demands not the strongest connection, the most convincing rational connection,
but a logical or rational connection.
151
In my view, it is obvious that s. 51(e) of the Act meets this
requirement. The arguments in favour of the rational connection clearly meet
the standard which this Court normally applies at this stage of the analysis,
that the pressing and substantial legislative objectives are at least logically
furthered by the means selected by Parliament in s. 51(e) of the Act.
At this phase of the proportionality inquiry, it is particularly important to
continue to keep in mind the contextual factors which have been discussed
above.
152
The trial judge below stated that while he was of the view that there
was a complete lack of empirical evidence to support the rational connection,
this was not determinative, in that he was satisfied that there was a rational
or common sense basis upon which to assume that disenfranchising prisoners is
meant to promote civic responsibility. He thus concluded that a rational
connection was, as a matter of common sense, made out. I agree. He based this
largely upon the view that the objectives here are symbolic: society strongly
disapproves of certain forms of conduct. He also found the morally educative
argument to be a compelling basis for the rational connection. The fact that
many offenders are not caught, and thus perhaps those who are actually
incarcerated are clearly singled out, also fails to undermine the rational
connection.
153
The crux of the trial judge’s reasoning concerning the first objective
was that he
seems to have accepted the evidence of Dr. Thomas Pangle and Dr.
Christopher Manfredi, who testified that a legislative objective of enhancing
civic responsibility and fostering respect for the rule of law was rationally
connected to legislation which denounces disrespect for the process of law and
for the social contract, and which restricts the franchise as a means of
showing connection to the Canadian polity.
(As per Linden J.A. at the Federal Court of Appeal, para. 105)
With regard to
the second objective, the trial judge found at p. 892 of his reasons that:
. . . a rational connection exists between the impugned provision and
the stated objective of enhancing the criminal sanction. As an aid to
punishment, the provision clearly imposes a sanction, and denounces bad
conduct. In the present case, the sanction takes the form of a
disenfranchisement, in addition to the loss of liberty. A fundamental
democratic right has been removed for crimes committed, and its removal is
clearly felt as a deprivation by Mr. Sauvé and Mr. Spence. It is also
reasonable to conclude that a morally educative message is sent to offenders,
and possibly to the general population, by the imposition of a sanction.
154
The majority of the Federal Court of Appeal agreed with the trial judge
that the promotion of civic responsibility is rationally connected to the
impugned provision. The majority noted specifically that, while it was also
possible to argue that all laws strive to promote civic responsibility, the
common sense connection was adequately established in this case. Linden J.A. also
agreed with the trial judge that the objective of promoting the criminal
sanction was also made out.
155
Linden J.A. was satisfied that the two-year cutoff did catch serious and
repeat offenders, based on the statistical data which showed that, as of April
1995, of a sample of 14,179 inmates in federal penitentiaries who had been
sentenced to two or more years, each had committed, on average, 29.5
offences. I think that this is highly relevant, particularly given the
Chief Justice’s view that the disenfranchising provision is insufficiently
tailored. Wetston J., at pp. 878-79, looked to the criminal records of the
appellants as illustrative of this point:
Mr. Sauvé, for example, was convicted of murder as an aider and
abettor. While he committed only one significant offence, he was sentenced to a
period of twenty-five years in prison. In contrast, Mr. Spence’s criminal
record reveals a history of repeated crimes which eventually led to a four-year
term of imprisonment for armed robbery and related offences. Clearly, both
individuals engaged in serious criminal conduct, which the courts punished by
way of prison sentences of more than two years. Thus, the records of Mr. Sauvé
and Mr. Spence also lend support to the defendants’ assertion that prison
sentences of two years or more target serious criminals and repeat offenders.
156
I note that in Harvey, supra, La Forest J. was convinced
that the five-year disqualification from voting, holding office, or being
elected to the Legislative Assembly for persons found guilty of illegal
electoral practices found in the New Brunswick Elections Act was
rationally connected to the legislative objective of enhancing the integrity of
the electoral process. He noted at para. 41:
A mandatory disqualification acts as a strong deterrent and helps to
promote confidence in the electoral system . . . . [T]he . . .
contention that the disqualification displays paternalism on the part of the
legislature misses the point. The provision is meant to protect the public not
only from a particular offender, but from offenders in general. In other words
the legislature is aiming at both general and specific deterrence.
He concluded
at para. 43 by noting:
. . . s. 119(c) is rationally connected to the objective of preserving
the integrity of the electoral process and is not arbitrary in that it applies
only to a specified group of individuals who are charged with and convicted of
specified offences.
In my view, a
similar analysis applies in the case at bar.
157
I support the analysis of the courts below: reason, logic and common
sense, as well as extensive expert evidence support a conclusion that there is
a rational connection between disenfranchising offenders incarcerated for
serious crimes and the objectives of promoting civic responsibility and the
rule of law and the enhancement of the general objectives of the penal
sanction. The rational connection between the disenfranchisement and the
first objective is explained above, in my discussion of dignity and the fact
that removing the right to vote from serious incarcerated criminals does no
injury to, but rather recognizes their dignity (see paras. 68-76). It is also
explained above in the section entitled “A Rational and Reasonable Social or Political
Philosophy Underpins the Crown’s Justification for the Limitation of the
Section 3 Right” (see especially paras. 114-121), and below in my discussion of
the salutary effects of the measure (see especially paras. 180-183). In the
latter section, I discuss the legislation’s expression of societal values and
its signalling effect. The Chief Justice prefers a different line of
reasoning. Citing Mill as her authority, she states that “denying penitentiary
inmates the right to vote is more likely to send messages that undermine
respect for the law and democracy than messages that enhance those values”
(para. 41). However, apart from one philosopher, she provides no support for
this contention; she simply replaces one reasonable position with another,
dismissing the government’s position as “unhelpful” (para. 37 of the Chief
Justice’s reasons).
158
The rational connection between the legislation and the enhancement of
the criminal sanction is also elaborated on elsewhere. Below, at paras. 160 to
174 on minimal impairment, I explain at length that the disenfranchisement is
carefully tailored to apply to perpetrators of serious crimes. I therefore
disagree with the Chief Justice’s statement that denial of the right to vote is
insufficiently tailored and therefore not rationally connected to legitimate
punishment. I also explain below, at para. 183 of my discussion of salutary
effects, that denial of the right to vote is perceived as meaningful by the
prisoners themselves (the evidence of the appellant Aaron Spence supports this)
and can therefore contribute to the rehabilitation of prisoners.
159
The arguments raised by the appellants are not destructive of the
rational connection between Parliament’s objectives and legislative action, and
do not support disregarding the findings of both lower courts. As per
Wilson J. in Lavigne, supra, Parliament’s goals are obviously “logically
furthered by the means government has chosen to adopt” (p. 291 (emphasis
added)). In particular, I share the view of the courts below that given that,
the objectives are largely symbolic, common sense dictates that social
condemnation of criminal activity and a desire to promote civic responsibility
are reflected in disenfranchisement of those who have committed serious
crimes. This justification is rooted in a reasonable and rational social and
political philosophy which has been adopted by Parliament. Further, it can
hardly be seen as “novel”, as stated in the Chief Justice’s reasons, at para.
41. The view of the courts below is that generally supported by democratic
countries. Countries including the United States, the United Kingdom,
Australia, New Zealand, and many European countries such as France and Germany,
have, by virtue of choosing some form of prisoner disenfranchisement, also
identified a connection between objectives similar to those advanced in the
case at bar and the means of prisoner disenfranchisement.
(b) Minimal Impairment
160
The Crown must demonstrate that the impairment of rights is minimal,
i.e. that the law was carefully tailored so that Charter rights are
impaired no more than is necessary to meet the legislative provision’s
objectives. Minimal impairment is about analysing the line that has been
drawn. This analysis does not, notably, require the Crown to have adopted the
absolutely least intrusive means for promoting the purpose, although it does
require that the Crown prefer a significantly less intrusive means if it is of equal
effectiveness. In RJR-MacDonald, supra, at para. 160,
McLachlin J. stated:
The tailoring process seldom admits of perfection and the courts must
accord some leeway to the legislator. If the law falls within a range of
reasonable alternatives, the courts will not find it overbroad merely because
they can conceive of an alternative which might better tailor objective to
infringement. . . .
In R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 782, Dickson C.J.
stated: “The courts are not called upon to substitute judicial opinions for
legislative ones as to the place at which to draw a precise line.” See also Ross,
supra, at para. 108. In the case at bar, these passages are of the
utmost relevance, insofar as they encompass a recognition of the need for
deference in the context of a case such as the one at bar.
161
I emphasize that it was “particularly” on the ground of minimal
impairment that this Court, in the first Sauvé case, established that
the previous s. 51(e) of the Act, which disenfranchised all prisoners
regardless of the duration of their incarceration, was contrary to the Charter
and incapable of being justified under s. 1 . Our decision was, at pp. 439-40:
We are all of the view that these appeals should be
dismissed.
The Attorney General of Canada has properly
conceded that s. 51(e) of the Canada Elections Act, R.S.C., 1985,
c. E-2, contravenes s. 3 of the Canadian Charter of Rights and Freedoms
but submits that s. 51 (e) is saved under s. 1 of the Charter . We
do not agree. In our view, s. 51 (e) is drawn too broadly and fails to
meet the proportionality test, particularly the minimal impairment component of
the test, as expressed in the s. 1 jurisprudence of the Court.
The language of
Iacobucci J.’s reasons seem to imply that, while Parliament’s complete ban of
prisoner voting in the old provision was unconstitutional, Parliament was free
to investigate where an appropriate line could be drawn. This is exactly what
it was in the process of doing at the time the first Sauvé case was
heard. It has drawn a line in the form of s. 51(e) of the Act.
162
The appellants and their experts have argued that there are less
intrusive means for the Crown to pursue its objectives: disenfranchisement could
be left to the discretion of the sentencing judge; as per the Lortie
Commission, only those convicted of the most serious offences (those punishable
by a maximum of life) and the most serious sentences (those punishable by 10
years in jail or more) could lose the vote; an offence-oriented approach could
define specific types of crimes which could be seen as bearing a rational
connection to the franchise; or the measure could allow for the vote to be
restored if the offender demonstrated good behaviour while incarcerated. To
these I add that it is obvious that any higher cutoff line, i.e. 5, 10, or 25
years of incarceration, would also, technically, be less intrusive.
163
I am of the view that no less intrusive measure would be equally
effective. Since Parliament has drawn a line which identifies which
incarcerated offenders have committed serious enough crimes to warrant being
deprived of the vote, any alternative line will not be of equal effectiveness.
Equal effectiveness is a dimension of the analysis that should not be
underemphasized, as it relates directly to Parliament’s ability to pursue its
legitimate objectives effectively. Any other line insisted upon amounts to second-guessing
Parliament as to what amounts to “serious” crime.
164
The trial judge below stressed that the legislative process did
undertake a rigorous evaluation of the line chosen regarding “serious” crime.
He noted that the legislative history of s. 51(e) of the Act involved a
report from the Lortie Commission. Notably, the Lortie Commission, despite the
conclusion of a Research Study commissioned under it which recommended that all
prisoners get the right to vote, concluded that prisoners who had been
convicted of an offence punishable by a maximum of life imprisonment and who
had been sentenced to a prison term of 10 years or more should be disqualified
from voting for the duration of their incarceration. A Special Committee on
Electoral Reform, which reviewed the Lortie Commission’s Report, recommended,
however, that a two-year cutoff was appropriate since this would catch “serious
offenders”. Wetston J. stated, at p. 877:
The Special Committee spent a great deal of time trying to determine
whether a two-year limit for the disqualification was appropriate, or whether a
cutoff of five years, or seven years, or ten years (as recommended by the
Lortie Commission) was more justifiable. Eventually, the Special Committee
recommended a two-year cutoff since, in their view, serious offenders may be
considered to be those individuals who have been sentenced to a term of two
years or more in a correctional institution. Generally, that means a federal
penitentiary, but not exclusively.
165
The debates in the House of Commons regarding the provision in question
demonstrate that there was a view that disenfranchisement would have an
“educative effect”: see Wetston J. at pp. 877-78 of his reasons and House
of Commons Debates, vol. XIV, 3rd Sess., 34th Parl., April 2, 1993, at pp.
18015-21. Further, the debates emphasize the view that the prisoners actually
disenfranchised themselves by their engaging in criminal conduct. Most
generally, and most importantly, Linden J.A. aptly noted, at para. 96:
. . . that Parliament, both in general session and in Committee,
debated this measure vigorously. The Parliamentary Committee reviewing the
matter carefully considered the submissions of the Royal Commission on
Electoral Reform and Party Financing (the Lortie Commission), recommending
disenfranchisement to all those prisoners serving sentences of 10 years or
more. While in session, Parliament debated and ultimately rejected a motion to
repeal the disenfranchisement, and an alternative motion to trigger the
disenfranchisement only after a sentence of five years or more is handed down.
Linden J.A.
noted that Parliament did not consider a finite list of offences which would
result in the loss of the vote, but he noted that the cutoff selected achieved
the same objective by a different method: serious offences were specifically
targeted.
166
The Crown and its experts submitted that the impugned provision is
minimally impairing for three reasons: only prisoners serving sentences for
two years or more are disenfranchised, and thus the provision only targets what
Parliament has identified as those who have perpetrated “serious” offences; the
disenfranchisement is temporary, in the sense that the vote returns to the
offenders once they leave jail; and the return of the vote once the offender
leaves jail is automatic.
167
The trial judge, appropriately, was concerned that Parliament be granted
some latitude to select alternative policy options. In his final analysis,
however, Wetston J. rejected all but one of the appellants’ suggested “less
intrusive” options. What he believed would be a less intrusive measure is the
selective disenfranchisement of each individual offender as a matter of the
sentencing judge’s discretion. He preferred this approach since it would not
be automatic; it would take into account the particular circumstances of each
offender. He noted that this option was not heavily considered by Parliament.
Further, he noted that legislative criteria could assist the sentencing judge
in his or her determinations. The trial judge was also of the view that there
would be a greater degree of public attention if the issue of disqualification
were to be decided by the sentencing judge, and thus the morally educative
dimension of the disenfranchisement would be enhanced. The trial judge thus
found that in light of this available option the provision was not minimally
impairing. Desjardins J.A., in dissent at the Federal Court of Appeal, was
effectively of the same view.
168
I am not convinced by the trial judge’s preference for this approach.
First, it seems to designate the actual purpose of the voting ban to be more
clearly the enhancement of the punitive sanction than the promotion of civic
responsibility. I am of the view that if the offender has committed a crime
which falls within the category identified by Parliament as bringing with it
disenfranchisement, the sentencing judge’s discretion has little place in
determining whether civic responsibility will be better or worse promoted by
the disenfranchisement of the particular offender. It is therefore clearly not
of equal effectiveness. Second, I cannot imagine what factors a sentencing
judge would appropriately weigh to decide this issue. The “personal
circumstances” which a sentencing judge might employ to reduce a sentence have,
in my view, no place in determining whether a particular offender be permitted
to vote. The disenfranchisement comes solely from having committed a crime
serious enough to bring with it a term of incarceration of two years or more.
169
The trial judge also noted that legislative guidelines could be provided
to assist the sentencing judge. I fail to see how such guidelines would be any
more effective than the line currently drawn since the current line is
Parliament’s choice of a guideline: it clearly identifies a line which
Parliament believes represents what amounts to “serious crime”. The suggestion
that a sentencing judge be able to exercise a discretion, in my view,
trivialises the gravity of all offences which Parliament has said, by virtue of
the cutoff line selected in relation to the Criminal Code , are serious.
170
It could be said that there are many other less intrusive methods to
promote civic responsibility or the rule of law, methods which do not involve
prisoners at all. For example, it could be said that a program of compulsory
voting for all citizens, as is in effect in Australia or Belgium, might be such
an alternative. With regard to such suggestions, I note the following passage
from Dickson C.J. in Keegstra, supra, at pp. 784-85:
. . . s. 1 should not operate in every instance so as to force the
government to rely upon only the mode of intervention least intrusive of a Charter
right or freedom. It may be that a number of courses of action are available
in the furtherance of a pressing and substantial objective, each imposing a
varying degree of restriction upon a right or freedom. In such circumstances,
the government may legitimately employ a more restrictive measure, either alone
or as part of a larger programme of action, if that measure is not redundant,
furthering the objective in ways that alternative responses could not, and is
in all other respects proportionate to a valid s. 1 aim. [Emphasis added.]
171
The approach taken by Linden J.A. for the majority of the Federal Court
of Appeal below is sound. He held that the current provision was minimally
impairing for a number of reasons: only “serious offenders”, as determined by
Parliament, are subject to disenfranchisement; accused persons and those
convicted but out on bail are permitted to vote; those out on parole are
permitted to vote; and the provision acts proportionately since it is
individualized insofar as those with longer sentences will be disenfranchised
longer. The provision is reasonably tailored insofar as disenfranchisement
reflects the length of the sentence and actual incarceration, which, in turn,
reflects the seriousness of the crime perpetrated and the intended progress
towards the ultimate goals of rehabilitation and reintegration.
172
Linden J.A. also, correctly in my view, drew a parallel to the approach to
minimal impairment adopted by this Court in Harvey, supra. He
noted at para. 123:
Here too Parliament has sought to further electoral
goals with a period during which the person convicted of the most serious
crimes will be prohibited from participating in the law-making process. I can
see no reason why this Court should declare invalid the balancing engaged in by
Parliament in this case.
173
I agree with the Crown that the impugned provision is not arbitrary: it
is related directly to particular categories of conduct. I also note that the
two-year cutoff line also reflects practical considerations: it reflects a
distinguishing between offenders incarcerated in federal rather than provincial
institutions (s. 743.1 of the Criminal Code ); persons sentenced to a
term of imprisonment of two years or more are not eligible to serve their
sentence in open custody (s. 742.1 of the Criminal Code ); and persons
subject to a sentence of imprisonment of two years or more are subject to
having a court delay parole until one half of the sentence is served (s. 743.6
of the Criminal Code ).
174
In my view, it is particularly inappropriate, in the case at bar, to
find the justification of the limitation of the right to be unconvincing at
this phase of the Oakes test. First, as was noted above, there is a
need for deference to Parliament in its drawing of a line, especially since
this Court gave the impression that it was up to Parliament to do exactly that
after the first Sauvé case was heard in 1993. Second, also as developed
above, the analysis of social and political philosophies and the accommodation
of values in the context of the Charter must be sensitive to the fact
that there may be many possible reasonable and rational balances. Developing
this point, it is important to note that, given the theoretical nature of the
arguments raised by both parties in the case at bar, they do not gain proportionally
in strength as the bar is moved higher. Symbolic and theoretical
justifications such as employed in this case do not get stronger as the line
changes. The fundamental premises underlying the line chosen would be the same
if the cutoff was 10 years, or even 25 years. See, for example, Driskell,
supra, in which similar analytical problems to those in the case at bar
arose and resulted in a line of five years being held unconstitutional. Line
drawing, amongst a range of acceptable alternatives, is for Parliament. This
view is compounded by the point developed above that it is plain that any
alternate line would not be equally effective, in that the line drawn reflects
Parliament’s identification of what amounts to serious criminal activity. The Federal
Court of Appeal was correct to find the provision in question minimally
impairing.
(c) Proportionality of Effects
175
The final prong of the Oakes test demands that the effects of the
limiting measure (the impugned provision) must not so severely trench on Charter
rights that the legislative objective, albeit important, is outweighed by the
infringement of the rights. The basic test for determining proportionality is
that the objectives must be balanced with the actual effects of the impugned
provision: Oakes, supra; Edwards Books, supra; McKinney
v. University of Guelph, [1990] 3 S.C.R. 229. This basic test, however,
was restated and modified by Lamer C.J. in Dagenais v. Canadian Broadcasting
Corp., [1994] 3 S.C.R. 835. Therein, it was held that in cases where a
measure fully, or nearly fully, meets its legislative objective or objectives,
then the conventional Oakes analysis stands: weigh the objectives with
the actual effects of the impugned provision. Where a measure only partially
achieves its legislative objective or objectives, the proportionality
requirement is dual: not only must there be proportionality between the
deleterious effects of the measure which are responsible for the limiting of
the right in question and the objective, but there must also be proportionality
between the deleterious and the salutary effects of the measures.
176
What of this case? The Crown alleges that the objectives have been
fully met, and thus the pre-Dagenais approach should apply. As
submitted by the Crown at para. 64 of their factum, “[t]he enactment of the
legislation creates the norm and fulfills the moral aim of the legislation. As
in Harvey . . . there is no need to balance the salutary and deleterious
effects of this legislation”.
177
In Harvey, supra, at para. 48, La Forest J. stated that
“[t]he final step in the Oakes analysis is to determine if the effects
of s. 119(c), the removal of the appellant as the member for Carleton North and
his five-year disqualification from running as a candidate, are proportional to
the section’s objective of ensuring the integrity of the electoral process.”
Thus, La Forest J. did not go on to balance salutary and deleterious effects per
se; the emphasis was only on weighing the proportionality of the
deleterious effects to the objectives of the provision. While Linden J.A. did
not definitively prefer the Harvey approach in this case, he noted at
para. 133 that it “highlights that the context of the particular case is
paramount in the Oakes analysis”. Further, he noted at para. 134 that
“it is hard to speak of salutary effects in the context of the penal sanction,
especially in an age where there is little evidence proving that the penal
sanction is effective in reducing or deterring crime, or in reducing
recidivism”. I agree and am of the view that regardless of which test is
engaged, given the nature of the evidence and the fact that the objectives have
clear symbolic effect, that the proportionality analysis is nonetheless
satisfied.
178
It is my view that the arguments in this dimension of the analysis are
basically either persuasive or not. If the objectives are taken to reflect a
moral choice by Parliament which has great symbolic importance and effect and
which are based on a reasonable social or political philosophy, then their
resulting weight is great indeed. Over all, while the temporary
disenfranchisement is clear, the salutary effects and objectives are, in my
view, of greater countervailing weight. Generally, I agree with the analysis
of Linden J.A. at the Federal Court of Appeal below to this effect.
179
The trial judge considered this dimension of the Oakes test
despite having found that the impugned provision was not minimally impairing.
He discussed the current situation across Canadian provinces with regard to
prisoner enfranchisement for the purpose of provincial elections. He noted
that four provinces (I note that it is now five) permit all prisoners to vote
in provincial elections, others place some limits, while yet others provide for
complete disenfranchisement. He then found that the Crown did not provide any
evidence of harm flowing from instances where prisoners had exercised the right
to vote, such as provincial elections or referenda. He also noted that the
Crown did not provide any evidence of harm flowing from prisoner voting in
other countries. I do not find this reasoning persuasive: the harm which flows
from serious offenders voting is obviously not empirically demonstrable. As
long as one holds democracy to be an abstract good, to find that empirically
measurable harm flows from the result of any fair democratic process is an
impossible argument to make.
180
The salutary effects in the case at bar are particularly difficult to
demonstrate by empirical evidence given their largely symbolic nature. On this
point, I note that it would be difficult for the Crown to justify all penal
sanctions, if scientific proof was the standard which was required. I
discussed this above, and would like to reiterate that many core values of the
Canadian community might suffer if put to such a test. In such cases, the
weighty merit of the objectives themselves must be considered with the social,
legislative and factual context in mind. In this case, a central dimension of
the context is Parliament’s choice of a particular social or political philosophy
on which the justification for the limitation of the right is based. As
Bastarache J. noted in Thomson Newspapers, supra, at para. 125,
this third phase of the proportionality prong of the Oakes test is
unique in that it
provides an opportunity to assess, in light of the practical and
contextual details which are elucidated in the first and second stages, whether
the benefits which accrue from the limitation are proportional to its
deleterious effects as measured by the values underlying the Charter .
181
Linden J.A. found that the primary salutary effect was that the
legislation, intrinsically, expresses societal values in relation to
serious criminal behaviour and the right to vote in our society. He thus
concluded, at para. 137, that it has more than symbolic effect:
This legislation sends a message signalling Canadian values, to the
effect that those people who are found guilty of the most serious crimes will,
while separated from society, lose access to one of the levers of electoral
power. This is an extremely important message, one which is not sent by
incarceration alone. Incarceration is essentially separation from the
community. Incarceration alone signals a denunciation of the offender’s
anti-societal behaviour and indicates society’s hope for rehabilitation through
separation from the community. Incarceration by itself, however, leaves those
convicted of serious crimes free to exercise all the levers of electoral power
open to all law-abiding citizens. This maintains a political parity between those
convicted of society’s worst crimes and their victims. Disqualification from
voting, however, signals a denunciation of the criminal’s anti-societal
behaviour and sends the message that those people convicted of causing
the worst forms of indignity to others will be deprived of one aspect of the
political equality of citizens — the right to vote. It can be said that, in
this context, “kindness toward the criminal can be an act of cruelty toward his
victims, and the larger community”. [Footnotes omitted; emphasis in original.]
Linden J.A.
suggested that value emerges from the signal or message that those who commit
serious crimes will temporarily lose one aspect of the political equality of
citizens. Therefore, “the enactment of the measure is itself a salutary
effect” (para. 138). I agree. As can be drawn out from the overview of the
arguments which were placed before this Court, one is forced to either accept
the objectives, and consequently grant them weight at this stage of the
analysis, or discount them. I am of the view that the salutary effects and
objectives must be granted the respect of this Court.
182
The signalling function of s. 51(e) is highly important. Linden
J.A., below, noted at paras. 139 and 141 of his reasons, that:
The signal itself is a double signal, a message about the community’s
view of crime and a repudiation of the indignity perpetrated on victims of
crime. Where someone, by committing a serious crime, evinces contempt for our
basic societal values, their right to vote may be properly suspended. Indeed,
not to do so undermines our democratic values.
.
. .
In context, this legislation puts forward a
statement of principles by which Canadians live. That is a valid role which
Parliament may play. The formal enactment of these principles itself is as
important as any tangible effects that the law may have. [Footnotes omitted.]
This view is
supported by the Crown’s experts, Professors Pangle and Manfredi. Professor
Pangle emphasized that the provision in question reflects a signal to society
and to offenders that the commission of serious criminal acts will result in
the loss of a dimension of political participation. Professor Manfredi
developed the argument, employed above, that there is something important about
the nexus between the exercise of the vote by citizens and the responsibilities
and duties inherent in citizenship. Also as reflected upon above, the provision
reflects society’s desire to promote the rule of law and civic responsibility,
which are inherent in and required by the rule of law and the notion of the
social contract. This provision draws a line which sends a strong and
beneficial moral message to society as a whole, the message that crime will not
be tolerated. As was said in Sharpe, supra, by L’Heureux-Dubé
and Bastarache JJ. and myself, at para. 191: “The Court should be particularly
sensitive to the legitimate role of government in legislating with respect to
our social values”.
183
Another salutary effect of the impugned provision is that it has an
effect that is noticed by the disenfranchised offenders themselves. Linden
J.A. agreed and substantiated this view by quoting testimony from the appellant
Aaron Spence to the effect that Mr. Spence was troubled by the fact that he was
denied the vote, at para. 143:
Q. The fact that you are deprived of the right to vote doesn’t bother
you?
A. It does, it does bother me.
Q. The answer to my question, then, Mr. Spence, unless I misunderstood
your answer, is that you are, in fact, deprived of certain things that you
think are valuable?
A. Definitely.
Q. Like the right to vote?
A. That is true.
I am of the
view that this evidences the salutary effect that the temporary
disenfranchisement is perceived as meaningful by the offenders themselves. I
am also of the view that based on this, there is reason to believe that the
disenfranchisement could have an ongoing positive rehabilitative effect. Since
the vote is meaningful to these offenders, then perhaps its temporary loss will
be a factor which these offenders will carry with them as they pursue
reintegration into the community on their release. The reasons of the Chief
Justice deny this and suggest that the denial of the vote to prisoners makes
reintegration and rehabilitation more difficult. As just stated, I disagree.
I note as well, however, that it is possible to argue that incarceration itself
may make rehabilitation and reintegration more difficult, but it is still, in
some cases, an important dimension of punishment and indeed a step towards
rehabilitation.
184
The most obvious deleterious effect of s. 51(e) is the potential
temporary loss of the vote. This, however, must be considered in light of
Parliament’s objectives, as illuminated by the totality of the context. Based
on statistical data, Linden J.A. concluded that the provision was effective
insofar as it affected only the most serious offenders. Linden J.A. presented
an overview of the number and percentage of inmates in federal penitentiaries
serving time for particular offences in the form of a table reproduced at para.
145 of his reasons. Basically, it reflected the serious nature of the offences
committed by those persons incarcerated for two years or more. As noted above,
of the sample of 14,179 offenders incarcerated for two years or more, each was
found to have, on average, 29.5 convictions. Linden J.A. thus properly
concluded that the provision catches serious and repeat offenders. The
statistics also indicate that 75 percent of prisoners incarcerated in federal
penitentiaries are serving sentences of five years or less. Therefore, most
prisoners will only be deprived of participation in one election: see Linden
J.A., at para. 145; see also Linden J.A., at para. 122, where fixed periods of
disenfranchisement are discussed and a helpful parallel is drawn to this
Court’s approach in Harvey, supra. Lastly, because the duration
of the disenfranchisement is directly related to the duration of incarceration,
it may in fact be the case that a serious criminal offender who is technically
disenfranchised during the period of his or her incarceration may never
actually be denied the opportunity to vote, as there may be no election during
the time he or she is incarcerated.
185
The reasons of the Chief Justice suggest that to be temporarily
disenfranchised while incarcerated is to be severed from the body politic and
silenced as an unworthy outsider. Above, I explained how temporary
disenfranchisement does not undermine the “worth” or “dignity” of any offender
but is instead focussed at criminal offences. I also have discussed how
temporary disenfranchisement is to be seen as a dimension of punishment that is
tailored towards rehabilitation and reintegration: it is therefore ultimately
focussed upon inclusion rather than exclusion. One other point which I would
like to make briefly is to note that, while being temporarily disenfranchised
is clearly a significant measure, which is part of the reason why it carries
such great symbolic weight, it does not amount to the complete extinguishment
of all means of political expression or participation. There are many other
avenues by which serious criminals who are incarcerated for two or more years
may still exercise political expression: they can write to and lobby elected
representatives, publish their ideas or policy proposals, or in other ways make
their views known.
186
I return to the issue of deference to Parliament, and to the special
context of this case, that the justification advanced by Parliament is rooted
in a social or political philosophy that is not susceptible to proof in the
traditional sense. Linden J.A. noted at the Federal Court of Appeal, at para.
114, that:
While the notion of ensuring a “decent” or “moral” electorate may have
little place in today’s society, it is Parliament’s role to maintain and
enhance the integrity of the electoral process. Such considerations are by
definition political and therefore warrant deference.
Deference is
appropriate since the impugned provision raises questions of penal philosophy
and policy. Linden J.A. stated, at para. 135 that “[t]he courts cannot prevent
Parliament from proportionately compromising Charter rights in the name of
denouncing crime, even if they disagree with Parliament’s penal philosophy”.
On the issue of deference to choices regarding penal philosophy, I refer to
this Court’s decision in R. v. Goltz, [1991] 3 S.C.R. 485, where it
upheld a mandatory sentence imposed under the British Columbia Motor Vehicle
Act, on the basis that it was not an infringement of the guarantee against
cruel or unusual punishment found in s. 12 of the Charter . In Goltz at
p. 502, speaking for a majority of the Court, I cited from R. v. Guiller
(1986), 48 C.R. (3d) 226 (Ont. Dist. Ct.), per Borins J., the following
passage, approved of by Lamer J. in both R. v. Luxton, [1990] 2 S.C.R.
711, at p. 725, and R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1070:
It is not for the court to pass on the wisdom of
Parliament with respect to the gravity of various offences and the range of
penalties which may be imposed upon those found guilty of committing the
offences. Parliament has broad discretion in proscribing conduct as criminal
and in determining proper punishment. While the final judgment as to whether a
punishment exceeds constitutional limits set by the Charter is properly
a judicial function, the court should be reluctant to interfere with the
considered views of Parliament and then only in the clearest cases. . . .
187
In his reasons, Linden J.A. made the appropriate comment that the recent
evolution of penal policy has been an issue attracting significant political
attention. At para. 116 he stated:
This Court can appropriately note that since 1992 Canada has seen two
federal elections in which views of crime and punishment were important. Since
1992, Canada’s denunciation of crime and criminal behaviour has grown louder.
The federal government has strengthened many aspects of the criminal law in an
attempt to reflect the growing intolerance of crime in our communities. It is
noteworthy that Parliament has also expended resources seeking alternatives to
incarceration, and placing emphasis on victim’s rights. While it is important
to remember that the Charter exists to protect vulnerable people from
oppressive public moods, it is also important to be sensitive to legitimate
changes in Parliamentary attitudes toward what is and is not sound penal
policy.
188
When the objectives and the salutary effects are viewed in the totality
of the context, they outweigh the temporary disenfranchisement of the serious
criminal offender which mirrors the fact of his or her incarceration. In my
view, Parliament has enacted a law which is reasonable, and which is justified
in a free and democratic society.
V. Section
15(1) of the Charter
189
I agree with the trial judge and unanimous Court of Appeal below
(Desjardins J.A. was in agreement with Linden J.A.’s reasoning regarding s.
15(1) ) that it is clear that there has been no infringement of s. 15(1) of the Charter .
190
In Law v. Canada (Minister of Employment and Immigration), [1999]
1 S.C.R. 497, Iacobucci J. summarized, at para. 88, the proper approach to s.
15(1) as follows:
(3) . . . a court that is called upon to
determine a discrimination claim under s. 15(1) should make the following three
broad inquiries:
(A) Does the impugned law (a) draw a formal
distinction between the claimant and others on the basis of one or more personal
characteristics, or (b) fail to take into account the claimant's already
disadvantaged position within Canadian society resulting in substantively
differential treatment between the claimant and others on the basis of one or
more personal characteristics?
(B) Is the claimant subject to differential
treatment based on one or more enumerated and analogous grounds?
and
(C) Does the differential treatment
discriminate, by imposing a burden upon or withholding a benefit from the
claimant in a manner which reflects the stereotypical application of presumed
group or personal characteristics, or which otherwise has the effect of perpetuating
or promoting the view that the individual is less capable or worthy of
recognition or value as a human being or as a member of Canadian society,
equally deserving of concern, respect, and consideration?
191
In M. v. H., [1999] 2 S.C.R. 3, at para. 63, Cory and Iacobucci
JJ. noted that for distinctions to be discriminatory, they must be made on the
basis of an enumerated or analogous ground:
Not every legislative distinction is
discriminatory. Before it can be found that it gives rise to discrimination,
it must be shown that an equality right was denied on the basis of an
enumerated or analogous ground, and that this differential treatment
discriminates “in a substantive sense, bringing into play the purpose of
s. 15(1) of the Charter ”: Law, supra, at para. 39.
[Emphasis in original.]
192
Even if I were to presume that a distinction has been based on personal
characteristics pursuant to inquiry (A) of the Law criteria, I am of the
view that the answer to (B) is clearly in the negative. The status of being a
prisoner does not constitute an analogous ground.
193
Several courts have canvassed the issue of whether prisoner status
constitutes an analogous ground: Jackson v. Joyceville Penitentiary,
[1990] 3 F.C. 55 (T.D.); Belczowski (at the trial level), supra; McKinnon
v. M.N.R., 91 D.T.C. 1002 (T.C.C.); Armstrong v. R., [1996] 1 C.T.C.
2745 (T.C.C.); Mulligan v. R., [1997] 2 C.T.C. 2062 (T.C.C.), followed
in Wells v. R., [1998] 1 C.T.C. 2118 (T.C.C.); Olson v. Canada,
[1996] 2 F.C. 168 (T.D.), leave to appeal refused, [1997] 3 S.C.R. xii; and Alcorn
v. Canada (Commissioner of Corrections) (1999), 163 F.T.R. 1, aff’d
(2002), 95 C.R.R. (2d) 326, 2002 FCA 154. All have held that prisoner status
does not amount to a ground analogous to those enumerated under s. 15(1) of the
Charter .
194
In Chiarelli v. Canada (Minister of Employment and Immigration),
[1992] 1 S.C.R. 711, this Court agreed with the reasoning of the Federal Court
of Appeal below on the point that permanent residents who had been convicted of
criminal offences involving terms of imprisonment of five years or more did not
constitute a category of persons analogous to those enumerated in s. 15(1) .
Pratte J.A. at the Federal Court of Appeal, [1990] 2 F.C. 299, at p. 311,
stated:
No analogy can be made between the grounds of discrimination mentioned
in section 15 and the fact that certain permanent residents have been convicted
of serious offences. Permanent residents who have been convicted of serious
criminal offences do not fall into an analogous category to those specifically
enumerated in section 15 .
I am of the
view that a similar analysis applies in the case at bar, although here the
distinction drawn is between citizens who have committed serious criminal
offences for which they have been incarcerated as punishment and other
citizens, rather than the distinction in Chiarelli drawn between
permanent residents who have committed serious offences warranting terms of
imprisonment of five years or more and other permanent residents.
195
Prisoners do not constitute a group analogous to those enumerated in
s. 15(1) because the fact of being incarcerated cannot be said to have arisen
because of a stereotypical application of a presumed group characteristic. The
status of being a prisoner is brought about by the past commission of serious
criminal offences, acts committed by the individual himself or herself.
The unifying group characteristic is past criminal behaviour. This was the view
of the trial judge in Jackson, supra, noted by the trial judge in
the case at bar: the differential treatment arises “not from their personal
characteristics, but from past courses of conduct” (p. 920). This was also the
view of Strayer J. in Belczowski at the trial level, supra, at p.
162: “I am unable to conclude that a law applied to the plaintiff to his
disadvantage by reason of the circumstance that he has committed a crime and is
imprisoned under lawful sentence amounts to discrimination on some ground
analogous to those specified in subsection 15(1) ”.
196
Linden J.A., below, correctly stated at para. 166 of his reasons:
. . . I cannot describe one’s status as a prisoner as “a personal
characteristic that is immutable or changeable only at unacceptable cost to
personal identity”. Imprisonment is neither immutable nor unchangeable; for
all but a few prisoners it is a status that is meant to change over time.
Further, it cannot be said that “the government has no legitimate interest in
expecting” prisoners to change in order “to receive equal treatment under the
law”. In fact, the contrary is true — the government has every reason to
expect convicted criminals to change their behaviour in order to achieve equal
treatment under the law. That is the very reason for imprisonment.
197
With regard to the argument that being imprisoned could be said to be
immutable or constructively immutable, insofar as incarceration is, obviously,
once it has begun, beyond a prisoner’s control, the immutability or
constructive immutability is nonetheless an inherent and necessary dimension of
being incarcerated, which obviously and validly relates to the state’s
legitimate role of punishing serious criminals for their criminal activity. If
one could change the fact of being incarcerated at one’s own whim, then it
would be a useless concept. Most importantly, while being incarcerated is
beyond the immediate control of a prisoner, it is the result of their criminal
activity, the commission of which was within their control. As Professor Hogg
has aptly suggested, at p. 52-29 of Constitutional Law of Canada, supra:
Another way of looking at immutability as the
common element of the listed personal characteristics is to notice that the
characteristics are inherent, rather than acquired. They do not reflect a
voluntary choice by anyone, but rather an involuntary inheritance. . . .
Section 15 prohibits laws that distinguish between people on the basis of their
inherent attributes as opposed to their behaviour. Section 15 therefore does
not prohibit laws that make special provision for those who have committed a
crime, become insolvent, manufactured food or drugs, joined the legal profession,
made a will, purchased a taxable good or service, etc. It is true that
individuals may claim to be treated unfairly by the law for conditions that are
their own responsibility, but this kind of claim even if fully justified does
not warrant a constitutional remedy.
198
When discussing punishment and incarceration, it is important to also
address s. 12 of the Charter . Section 12 , which protects “[e]veryone”
from “cruel and unusual treatment or punishment”, addresses the condition of
incarcerated persons and persons undergoing other forms of punishment or
treatment. It, however, inherently recognizes the fact that incarcerated
persons are clearly subject to a kind of unequal treatment, but a form of
treatment that is nonetheless constitutional as long as it is not “cruel and
unusual”.
199
I spent much time above addressing how being incarcerated for having
committed a serious crime does not go to the “dignity” or “worth” of the
perpetrator: it relates to the crime committed. Crime is appropriately
disapproved of: disapproval is inherent in its definition, which relates to
committing offences which are punishable by law. Prisoner status
relates to the valid fact of punishment for this criminal activity.
200
Further, from the perspective of the general community and of victims or
potential victims, I note that serious criminal conduct is often directly
inimical to one of the two purposes of s. 15(1) , that of ensuring the equal
worth and dignity of all human persons: see Eldridge v. British Columbia
(Attorney General), [1997] 3 S.C.R. 624, at para. 54.
201
It is clear that the case law of this Court indicates that equality does
not necessarily connote identical treatment. In my view, to find prisoner
status to be an analogous ground would be a distortion of the purpose of s.
15(1) and would come close to making a mockery of the Criminal Code and
the values on which it is based and which it enshrines. This is because it
makes little sense to suggest that the distinction being drawn between
incarcerated persons and other citizens is based on a stereotypical or
irrelevant ground. The relevant and valid ground of differentiation which
results in becoming a prisoner is the conviction for a serious criminal
offence.
202
An alternative argument was made before this Court that imprisonment
should be recognized as an analogous ground because of adverse effect or impact
discrimination based on the fact that Aboriginal peoples make up a
“disproportionate” percentage of prisoners. I am not convinced by this
argument. On this point, I adopt the following analysis of Linden J.A., from
para. 169 of his reasons:
First, since, according to the data offered, 1,837 Aboriginal people
are disenfranchised by this law, it cannot be said that the over-representation
of Aboriginal peoples in the prison system adversely affects the political
expression of Aboriginal peoples generally, as there are over six hundred
thousand registered Aboriginal people in Canada. If Aboriginal people generally,
or a particular group of Aboriginal people, could show that disenfranchisement
effectively and adversely compromised their political expression, a
constitutional exemption from the operation of paragraph 51(e) of the
CEA might conceivably be justified. This has not been done. Second, it cannot
be said that the over-representation of Aboriginal peoples in prison is so
overwhelming as to justify a conclusion that a law aimed at prisoners is de
facto a law aimed at Aboriginal peoples. If the over-representation of
Aboriginal peoples in prisons reaches a level where it could be said that a law
aimed at prisoners was, de facto, a law aimed at Aboriginal peoples,
then constitutional exemption from the operation of paragraph 51(e) of
the CEA might be considered. That is not the case here. [Footnotes omitted.]
Beyond this, I
find any analysis of adverse impact or effect discrimination seems parasitic on
finding that prisoner status constitutes an analogous ground, since the adverse
effect or impact is allegedly upon Aboriginal prisoners; it is the prisoner
status which is alleged to result in the disadvantage, something which is not
furthered within the category of Aboriginal prisoner status. It is clear that
if the treatment was targeted against Aboriginal people in a direct way, they
would have a valid objection based on an enumerated ground of s. 15(1) . As
Linden J.A. noted, the numbers do not warrant the conclusion that the
disenfranchisement provision is being used to target Aboriginal persons per
se or has this effect.
203
The key is that the fact of incarceration does not necessarily arise due
to any personal attribute such as race or ethnic origin and neither does it
necessarily relate to social condition. It necessarily relates to having
committed crimes. If Aboriginal inmates had their votes taken away for life,
while non-Aboriginal inmates only suffered a temporary suspension, or if
Aboriginal inmates were disenfranchised but not non-Aboriginal inmates, then
such differential treatment would clearly warrant different analysis. But this
is not the case here.
204
The reasons of the Chief Justice, at para. 60, refer to the fact that
this Court, in R. v. Gladue, [1999] 1 S.C.R. 688, noted that the
overrepresentation of Aboriginal persons in the criminal justice system and the
prison population reflects a “crisis in the Canadian criminal justice system”.
I agree that a sad and pressing social problem exists, but suggest that it is
quite a leap to then say that Parliament is incapable of enacting a provision
which disenfranchises serious criminal offenders who have been sentenced to two
or more years of incarceration. As noted above, it is not plausible to say
that the temporary disenfranchisement is in some way targeted at Aboriginal
people: it hinges only upon the commission of serious criminal offences. If
there is a problem with the overrepresentation of Aboriginal people in our
criminal justice system and prisons, then that issue must continue to be
addressed, by not only continuing to pay attention to the sentencing
considerations pursuant to s. 718.2 (e) of the Criminal Code ,
which are specifically aimed at such a reduction, but also by addressing some
of the root causes of the overrepresentation identified by this Court in Gladue,
supra, including poverty, substance abuse, lack of education, lack of
employment opportunities, and bias against Aboriginal people. The continuing
need to address these factors does not, however, preclude the ability of
Parliament to address other pressing social problems, including denouncing
serious crime, enhancing the meaning of the criminal sanction and promoting
civic responsibility and the rule of law, which s. 51(e) of the Act is
directed to. Also in Gladue, at para. 78, this Court stated that it is
unreasonable to assume that Aboriginal people do not believe in goals of
punishment such as denunciation, deterrence and separation, to which I add,
obviously, the principle of rehabilitation. These goals of punishment, as
discussed above, are related to the temporary disenfranchisement of serious
criminal offenders and are ultimately aimed at the reintegration of offenders,
Aboriginal or otherwise, back into the community.
205
I also note that this Court stated in Gladue, at para. 79, that
the more serious the offence, the more likely it will be that the terms of
imprisonment for Aboriginal and non-Aboriginal persons will be similar or the
same, even if the different considerations for sentencing are taken into
account. Since the temporary disenfranchisement provision hinges on serious
criminal activity, this point is directly relevant.
206
Having found that there is no infringement of s. 15(1) of the Charter ,
it is unnecessary to consider s. 1 .
VI. Conclusion
207
Section 51(e) of the Act does not infringe s. 15(1) of the Charter .
While it has been conceded that it does infringe s. 3 of the Charter ,
the infringement is a reasonable limit that is demonstrably justified in a free
and democratic society. I would therefore dismiss the appeal.
208
I would answer the constitutional questions as follows:
1. Does s. 51(e) of the Canada
Elections Act, R.S.C. 1985, c. E-2, infringe the right to vote in an
election of members of the House of Commons, as guaranteed by s. 3 of the Canadian
Charter of Rights and Freedoms ?
Yes; the infringement was conceded by the Crown.
2. If the answer to Question 1 is yes, is the
infringement a reasonable limit, prescribed by law, which can be demonstrably
justified in a free and democratic society, pursuant to s. 1 of the Canadian
Charter of Rights and Freedoms ?
Yes.
3. Does s. 51(e) of the Canada
Elections Act, R.S.C. 1985, c. E-2, infringe the right to equality before
and under the law and equal benefit of the law without discrimination, as
guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms ?
No.
4. If the answer to Question 3 is yes, is the
infringement a reasonable limit, prescribed by law, which can be demonstrably
justified in a free and democratic society, pursuant to s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary to answer this question.
Appeal allowed, L’Heureux‑Dubé,
Gonthier, Major and Bastarache
JJ. dissenting.
Solicitor for the appellant Richard Sauvé: Fergus J. O’Connor,
Kingston, Ontario.
Solicitor for the appellants Sheldon McCorrister, Lloyd Knezacek,
Clair Woodhouse, Aaron Spence, Serge Bélanger, Emile A. Bear and Randy
Opoonechaw: Public Interest Law Centre, Winnipeg.
Solicitor for the respondents: The Department of Justice, Winnipeg.
Solicitors for the intervener the Attorney General of Alberta: Fraser
Milner Casgrain, Edmonton.
Solicitor for the intervener the Attorney General of Manitoba: The
Department of Justice, Winnipeg.
Solicitors for the interveners the Canadian Association of Elizabeth
Fry Societies and the John Howard Society of Canada: Allan Manson, Queen’s
University, Kingston; Elizabeth Thomas, Kingston.
Solicitors for the intervener the British Columbia Civil Liberties
Association: Conroy & Co., Abbotsford, B.C.
Solicitor for the intervener the Aboriginal Legal Services of
Toronto Inc.: The Aboriginal Legal Services of Toronto — Legal Clinic,
Toronto.
Solicitors for the intervener the Canadian Bar Association:
Desjardins Ducharme Stein Monast, Montréal.