3. Democratic rights of citizens - 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.

Jolivet and Barker v Her Majesty the Queen in Right of Canada - (1984), 7 CCC (3d) 431

- The petitioners complained that their disqualification by s14(4)(e) of the Elections Act from voting in federal elections was in conflict with s3 of the Charter which guarantees that right to all Canadians and asks that it be declared of no force and effect by virtue of s52 of the Constitution Act, 1982. The disenfranchisement of criminal offenders is not justifiable by any supposed need to protect society from the votes of "unfit persons". Nor can it be justified for the protection of society and therefore the use of disenfranchisement for punitive purposes is unconstitutional. The prospect of loss of voting rights is hardly likely to operate as a deterrent to the commission of criminal offences and disenfranchisement holds no hope of reforming offenders. It follows that disenfranchisement of prisoners cannot be justified under s1 of the Charter on grounds of "unfitness" to vote or as the penalty for breach of the ordinary criminal law. It follows that denial of the franchise to prison in- mates can be constitutionally justified only if the exercise of the right to vote by prisoners would be impossible for practical reasons. The expression "right to vote in an election of members of the House of Commons or of a legislative assembly" as used in s3 of the Charter means more than the right to cast a ballot. It means the right to make an informed electoral choice reached through freedom of belief, conscience, opinion, expression, association and assembly -that is to say with complete freedom of access to the process of "discussion and the interplay of ideas" by which public opinion is formed. Denial by the state of the freedoms necessary for the making of a free and democratic electoral choice involves denial also of the sort of right to vote contemplated by the Charter. The restrictions imposed by imprisonment on freedom of the person, the close control which must be maintained by the state over association, assembly and discussion there, and the inevitable interference with the free flow and circulation of information and ideas, all of which are necessary to preserve prison order and discipline, renders it impossible for prisoners to make the free and democratic electoral choice contemplated by the constitution. The casting of a ballot under such conditions could not, in the context of the Charter, be described as an exercise of the "right to vote". Imprisonment, as a punishment for breach of the criminal law, is clearly justifiable in a free and democratic society. It follows that denial to prisoners of those constitutional rights which, of necessity, cannot be exercised by persons serving a sentence of imprisonment are also justifiable and must be taken to be authorized by s1 of the Charter. The right to vote guaranteed by s3 of the Charter is one of such rights. It is therefore permissible under the constitution for Parliament or a legislature to deny the electoral vote to persons serving sentences of imprisonment in a penal institution.

Badger, Piche and Kotyk v AG Canada and Chief Electoral Officer of Canada - Unreported, November 4, 1988 (Man QB)

- The applicants, Canadian citizens, serving sentences as inmates in a federal penitentiary in Manitoba for indictable offences sought an order of the court declaring s14(4)(e) of the Canada Elections Act to be of no force and effect as being inconsistent with s3 of the Charter and not saved by s1 of the Charter. They sought an order pursuant to s24(1) of the Charter declaring that the respondent Chief Electoral Officer of Canada was authorized and obliged to utilize his powers under the Elections Act in such a manner as he deemed fit in his discretion to adapt the existing procedures of the Act so as to allow the applicants and other inmate electors to exercise their right to vote.

    The Chief Electoral Officer, through his counsel, raised the jurisdictional question as to whether the provincial superior court had jurisdiction to entertain the application bearing in mind the provisions of s18 of the Federal Court Act which gives the Federal Court exclusive jurisdiction over federal boards, commissions or other tribunals which, by definition in the Federal Court Act would include a Chief Electoral Officer acting under the Elections Act. On the jurisdictional question, the court held that it had concurrent jurisdiction with the Federal Court to determine constitutional questions including the constitutional validity of federal legislation.

    The court held that s14(4)(e) of the Canada Elections Act was not a reasonable and demonstrably justified limit on the right to vote guaranteed to every Canadian citizen under the provisions of s3 of the Charter and was, therefore, by virtue of s52(1) of the Constitution Act, 1982, of no force and effect. In arriving at this conclusion, the court relied upon the decision of Scollin, J in Badger et al v AG Manitoba (1986) 39 Man R (2d) 107 (Man QB), which held that a section in the Manitoba Elections Act was unconstitutional and not a reasonable and demonstrably justified limit and the decision of Bowlby, J in Grondin v AG Ontario, unreported, July 18, 1988 (Ont HC) to the same effect in relation to the Ontario Elections Act.

    The court granted a remedy under s24(1) of the Charter holding that it was appropriate and just to compel the Chief Electoral Officer to use his discretionary powers under the Elections Act to adapt to the provisions of the Act suitable to him with respect to enumerating inmates of penal institutions to enable them to vote and to see that they have the physical capability to exercise the right to vote in the upcoming federal election.

Badger, Piche and Kotyk v AG Canada and the Chief Electoral Officer of Canada - Unreported, November 18, 1988 (Man CA)

- On appeal, the Manitoba Court of Appeal reversed the decision of Hershfield, J (supra) in three separate concurring. reasons. Essentially, the Court of Appeal ruled that although s14(4)(e) of the Canada Elections Act is in breach of s3 of the Charter, it is a reasonable and demonstrably justified limit on the right to vote and is saved by s1 of the Charter.

    Section 14(4)(e) disqualifies from voting "every person undergoing punishment as an inmate in any penal institution for the commission of any offence."

    All three justices in the Court of Appeal declined to decide the jurisdictional question and assumed jurisdiction leaving that issue to be determined on another occasion.

    Monnin, CJM accepted that the majority of judgments to date on this subject in various jurisdictions in Canada are of the view that s14(4)(e) of the Elections Act is clearly in breach of s3 of the Charter although he would have been inclined to say that s3 of the Charter which he defined as a "democratic right of citizens" as opposed to a fundamental freedom right or legal right, had not been breached as it is not, in his view, an absolute right and is therefore one that can be abridged by Parliament without s1 of the Charter coming into play.

    He then went on to find that the breach of s3 of the Charter by s14(4)(e) was saved by s1 of the Charter as a reasonable and demonstrably justified limit on the right to vote and was therefore valid legislation.

    In his view, the task of franchising or disenfranchising all or certain prisoners should be left to the elected members of Parliament. In arriving at his conclusions, he chose to rely on the decision of VanKamp, J in Sauve v AG Canada, Sol Gen Canada and the Chief Electoral Officer -Unreported, November 7,1988 (Ont HC) which, in turn, upheld the section of the Elections Act as amounting to a reasonable and demonstrable limit under s1 of the Charter on the basis that Parliament is justified in limiting the right to vote with the objective that a liberal democratic regime requires a decent and responsible citizenry. He fortified his conclusions by reviewing similar legislation in other provinces as well as in other countries that limit the right of prisoners to vote and found that these other examples demonstrate that such limitations are in accordance with democratic principles. He further expressed concerns that if prisoners are enfranchised, they will automatically be given the right to stand as candidates for federal elections in the absence of a disqualification provision in the Act in that regard. He further pointed to various practical considerations that affect other citizens in exercising their right to vote to arrive at his conclusion that the right to vote is not an absolute right.

    In dealing with the s24(1) remedy ordered by Hershfield, J, he found that that order required the Chief Electoral Officer to legislate an entirely new provision or procedure not expressly authorized in current legislation and/or its rules and that this could not be done by a judge. In his view, this should be done by Parliament and the courts must show considerable restraint.

    Philp, JA concurred with the Chief Justice although harbouring doubts arising from the broad sweep of the disqualification affecting all inmates in any penal institution, regardless of the nature of the offences for which they were convicted and regardless of the length of their sentences. In his view, even if s14(4)(e) of the Elections Act was in violation of the Charter and of no force and effect, nevertheless the remedy under s24(1) was not appropriate and just, in the circumstances and the issue should be left to Parliament. In his view, the reach of the remedial order to all inmates of penal institutions called for judicial restraint. He also relied on further practical difficulties in implementing the order of Hershfield, J as reflected by new evidence put before the Court of Appeal and because of discordant decisions in other provinces.

    Lyon, JA concurred with the Chief Justice. He too found that the right to vote was not absolute and interpreted s3 of the Charter as intending to en- trench and constitutionalize the traditional and fundamental right to vote enjoyed in practice by Canadian citizens subject to the reasonable statutory conditions and disqualifications then extant which attached to it at the time the Charter came into force and that this section did not intend to create a new right reflecting some unfamiliar, unconditional and abstract idea which had never been enjoyed or accepted by the citizens of Canada. Consequently, in his view, s14(4)(e) of the Elections Act did not violate s3 of the Charter. Furthermore, if it did, he found the section to be saved by s1 of the Charter. In his view, when a citizen suffers loss of liberty through lawful incarceration in a prison, he is deprived of a number of rights and freedoms under the Charter even though they are enacted in absolute terms and that one of those rights was the right to vote as contained in s3 and that s14(4)(e) of the Canada Elections Act merely confirmed that consequence. He also held that the remedy proposed by Hershfield, J was wholly disproportionate to the breach alleged beyond the accepted limits of judicial interference permitted in Canada.

Gould v AG Canada and Solicitor General of Canada - [1984] 2 SCR 124

- A prisoner started an action in Federal Court seeking a declaration that s14(4)(e) of the Canada Elections Act was invalid by reason of s3 of the Charter. He moved for an interlocutory mandatory injunction granting him the right to vote. That application was granted by the Trial Division but set aside by the Court of Appeal on August 31st, 1984, holding that the Crown was entitled to a trial of the serious issue raised. The Court of Appeal held that the trial judge's decision was a determination that a prisoner, without having the action tried, was entitled to act and be treated as though he had already won. The Trial Division's judgment amounted to an interim declaration of right and was not a declaration that could properly be made before trial. The prisoner appealed to the Supreme Court of Canada which dismissed the appeal, indicating it generally shared the views expressed by the majority of the Federal Court of Appeal.

Belczowski v The Queen - Unreported, February 28,1991, No. T-1182-88 (FCTD)

- The plaintiff sought a declaration that paragraph 14(4)(e) of the Canada Elections Act (now s51(e)), which prohibits any prisoner in a penal institution from voting, in violation of the right to vote in elections as guaranteed in s3 of the Charter (the prisoner also claimed other Charter violations but they were not upheld).

    The Court reviewed s3 of the Charter which guarantees that every citizen in Canada has the right to vote in federal and provincial elections. The section is clear arid unambiguous and there are no words qualifying this right. This right appears to be unrestricted, unlike other rights guaranteed under the Charter which have been qualified by words such as "unreasonable" (s8) or "unusual" (s12). Any limitation on this right must be justified under s1 of the Charter.

    In applying the s1 test to justify a limitation of a Charter right, the defendant maintained that the legislative purpose of the legislation was three-fold: 1, to protect the sanctity of the franchise; 2, to preserve the integrity of the voting process; and 3, to sanction offenders.

    However, the Court noted that the legislation goes beyond a "capacity" test and instead imposes tests of "decency" and "responsibility" on voters. It arbitrarily singles out one category of citizen as being indecent and irresponsible whereas many citizens outside prisons may be indecent and/or irresponsible but are still allowed to vote. Also, the government's concern with preserving the integrity of the voting process was not accepted as a valid objective. While voting involves discussion and information on issues, there is no evidence that prisoners are less informed than those not incarcerated. The objectives also fail the proportionality tests under the Oakes formula. The third objective, sanctioning offenders, is a valid objective on its face. However, it cannot be said that it offends the s3 right "as little as possible" as it directly and completely abolishes that right for the period of imprisonment (as opposed to an incidental abridgement of that right). The result is an arbitrary effect in that a person incarcerated for two weeks for a minor offence during an election is worse off than someone sentenced for five years for a serious offence who might not miss a vote if released prior to the election.

    The Court further notes that the corrections process must involve something more than vengeance or deterrence. Re-adjustment of the prisoner into society is emphasized through vocational or academic training, temporary passes and the parole system. Voting could be a positive step in the rehabilitative process. There is no connection in the present legislation between punishment and any rehabilitative efforts. Accordingly, s51(e) of the Canada Election Act is invalid.

Re Maltby et al and AG Saskatchewan et al - (1983), 2 CCC (3d) 153 (Sask QB)

- This section was violated in circumstances where prisoners in a Saskatchewan provincial remand detention centre were denied the opportunity to vote in a provincial election. The Provincial Election Act in question did not disqualify remand prisoners from voting. There was no mechanism in the Act to provide for such prisoners voting as there was for persons in hospitals and sanatoriums. While there was no obligation on the correctional centre officials to assist the prisoners in their right to vote, the prisoners could have recourse against the Attorney General and the Minister of Social Services. Because the statute made no exception in the case of remand prisoners their rights under s3 had been violated.

Levesque v AG Canada et al - (1985) 25 DLR (4th) 184 (FCTD)

- The plaintiff was a prisoner in a federal penitentiary in the province of Quebec and wanted to vote in an up-coming Quebec general election on December 2nd, 1985. In 1980, the Quebec chief electoral officer had contacted the Solicitor General on several occasions as well as his successors with a view to arriving at an administrative agreement that would allow federal inmates to vote in the 1981 provincial election. The Solicitor General or his representatives refused to act or completely ignored him. In March 1981, the plaintiff and others sought an interlocutory injunction directing the Solicitor General not to impede them in exercising their right to vote in the 1981 election. That application was dismissed by the Federal Court Trial Division due to the use of incorrect procedures. Those plaintiffs then applied to the United Nations Human Rights Committee and filed a complaint under the International Covenant on Civil and Political Rights. That Committee found the complaint inadmissible because the plaintiffs had not exhausted their available domestic remedies, indicating that they could apply to the Federal Court to obtain a declaratory judgment. The plaintiff was informed of this in April 1985 and consequently commenced an action for declaratory judgment and raised, in addition, the provisions of s3 of the Canadian Charter of Rights and Freedoms. The court found that it was clear that s3 rights were being violated and went on to consider whether or not s1 reasonable limits could be imposed on that right. Citing Gould (supra), Rouleau, J held that administrative or security reasons could not prevent the exercise of a constitutionally recognized right and that because imprisonment necessarily entailed loss of certain rights, this could not justify curtailing the whole spectrum of rights. The right to vote was held to be the cornerstone of any self respecting democracy and difficult to limit under s1 of the Charter except within well defined circumstances. The Crown failed to establish that imprisonment constituted a reasonable limit on the right to vote conferred by s3 of the Charter. A declaration was granted that the plaintiff would be entitled to vote in the up-coming provincial election and in any other subsequent provincial election, so long as he remained an inmate. The court went on to find that s3 of the Charter implicitly recognized a duty or obligation on the government to ensure that persons could vote. It would be illusory to guarantee the existence of a right if its exercise could not also be guaranteed. Section 24 of the Charter would enable the issuance of a writ of mandamus against the Crown because the Crown was subject to the provisions of the Charter in the same way as any other individual and is the supreme law of Canada and consequently the rule of Crown immunity derived from the common law to the effect that mandamus could not issue against the Crown, no longer applied in light of the Charter. The writ of mandamus was issued, compelling provincial authorities to allow the chief electoral officer of Quebec to prepare, within the penitentiary, a list of prisoners having necessary qualifications to vote under Quebec law and to establish a polling booth on the spot with the scrutineer appointed by the chief electoral officer and a representative of each of the political parties sitting in the Quebec National Assembly as to enable the prisoners to exercise their right to vote in the election.

Badger et al v AG Man - (1986) 29 CCC (3d) 92 (Man CA)

- The applicants, two federal prisoners, applied for an order declaring and determining that they were persons entitled to have their names placed on the voters list for the provincial general election in Manitoba. The application was dismissed at trial. This decision was affirmed on appeal. In collateral proceedings, (Badger et al v AG Man (1986) 39 Man R (2d) 107 per Scollin, J), the prisoners had succeeded in obtaining a declaration that s31(d) of the Manitoba Elections Act was not reasonable and not a demonstrably justified limit on the right to vote set out in s3 of the Charter and was therefore of no force and effect by virtue of s52 of the Charter. That decision had not been appealed. Consequently, prisoners are not disenfranchised. Nevertheless, the court was of the view that it was inappropriate to grant the relief sought under s24(1) of the Charter because the polis were to open in 17 hours and it was therefore not appropriate or practical for the court to make an order directing the chief electoral officer or anyone else to cause a poll to be placed or taken at any or all of the prison institutions in Manitoba.

    Editorial Note - It should be noted that s3 of the Charter cannot be overridden by s33, the non-obstinate clause, whereas s2 or ss7 through 15 can be so overridden.

Hedstrom v Commissioner of Yukon Territory and Council for Yukon Indians - Unreported May 10,1985, No. SC 164.85 (YTSC)

- Section s18(1)(c) of the Yukon Elections Act, 1977 and amendments required an elector in a general election to have been resident in the Yukon for the previous 12 months. The petitioner had been resident in the Yukon for nine months and qualified in every other respect as an elector. He challenged s18(1)(c) as being in violation of s3 of the Charter as well as s6(2)(1) and s15 of the Charter. The court dismissed the arguments in relation to s6 and s15 of the Charter and found that the section of the Yukon Elections Act did violate s3 as a restriction on the right to vote which was presumed to be unconstitutional unless it could be established that it was a reasonable limit under s1. The court referred to Reynolds v AGBC (1984) 40 CR (3d) 394 at 396. The court was not persuaded that the 12-month requirement was reasonable, having regard to the requirements of other provinces and territories and other countries. The court noted that Canada did not require a period of residency to vote in an election of members of the House of Commons. The court further noted that while a commitment to the community was essential that was nevertheless provided for by the requirement of ordinary residency. The court pointed out that residency provided no assurance that the voter would become informed and that it was entirely against our tradition to require a poll test or a sophistication test to qualify as a voter. The court was of the view that convincing evidence had not been presented to meet the test of s1 and as the court had no authority to rewrite the legislation, it declared s18 of the Yukon Elections Act to be inconsistent with the Charter and, therefore, of no force and effect. An order in the nature of mandamus was granted pursuant to s24(1) of the Charter ordering the chief electoral officer to include the petitioner's name on the list of electors for the polling division.

Reynolds v AGBC - (1982) 4 BCLR 258,143 DLR (3d) 365, [1983] 2 WWR 413

- (per Macdonell J, obiter) (SC) -Applicant, who had served his term of imprisonment and was on probation, sought to declare invalid s3(1)(b) of Election Act, RSBC 1979, c103, which disqualified from voting any person convicted of an indictable offence who had not undergone the sentence imposed. Held: Section 3(1)(b) declared invalid, as it breached guaranteed right to vote in s3 of the Charter of Rights; and Freedoms. Court expressed opinion that s14 of the Canada Elections Act was valid as a reasonable limit within s1 of the Charter.

    Editorial Note - This decision was upheld by the BC Court of Appeal, May 25, 1984 (53 BCLR 394). Leave to appeal to the Supreme Court of Canada was granted, October 22, 1984.

Grondin v AG Ontario et al - (1988) 75 OR (2d) 427 (Ont HC)

- The disqualification of inmates in penal institutions from voting under the Ontario Elections Act were struck out as being unconstitutional and in violation of s3 of the Charter and were held not to be reasonable and demonstrably justifiable limits on s3 rights to vote.

4. (1) Maximum duration of legislative bodies - No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

    (2) Continuation in special circumstances - In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

5. Annual sitting of legislative bodies - There shall be a sitting of Parliament and of each legislature at least once every twelve months.