The right to vote and to be qualified for membership in the House of Commons or a legislative assembly is guaranteed by s3 of the Charter: It cannot be overridden by s33 but it can be limited by s1, although it is difficult to do so, as reflected in the recent decision of the Supreme Court of Canada in Sauve(infra).

    On October 31st, 2002,the Supreme Court of Canada, in Sauve v. Canada (Chief Electoral officer) 2002 SCC 68, by a slim majority of 5 – 4, held that section 51(e) of the Canada Elections Act, violated section 3 of the Charter (which was conceded) and that it was not justified under section 1 of the Charter.

    The court held that to justify an infringement of a Charter right under section 1, the government had to show that the infringement achieved a constitutionally valid purpose or objective, and that the means chosen was reasonable and demonstrably justified. Here the government argued that the court should defer to Parliament on this question because it was a matter of social and political philosophy. The court said that while deference may be appropriate where the matter involves competing social and political policies, it was not appropriate on a decision to limit fundamental rights.

    The Court noted that the right to vote is fundamental to our democracy and the rule of law and that it cannot be lightly set-aside. It held that limits on the right to vote required careful examination and not deference. The court pointed to the special importance of the right according to the framers of the Charter by the use of broad and untrammeled language and the fact that this right is exempt from the section 33 override notwithstanding clause. Parliament cannot use lofty objectives that are philosophically based and symbolic in nature to shield legislation from Charter scrutiny.

    The government had failed to identify a particular problem that required denying the right to vote. It was therefore difficult to conclude that such a denial was directed at a “pressing and substantial” purpose. The record did not disclose precisely why a Parliament felt that more punishment was required for all federal prisoners nor what additional objectives Parliament hoped to achieve by this additional punishment that would not be accomplished by the original sentence imposed. The two broad-based objectives put forward by the government, namely (1) to enhance civic responsibility and respect for the rule of law; and (2) to provide additional punishment or “to enhance the general purposes of the criminal sanction”, were vague and symbolic objectives that could be asserted for every criminal offence and many non criminal measures.

    Nevertheless the court went on to consider the “proportionality test” and found that the government failed to establish a rational connection between the denial of the right to vote and the governments stated objectives. The court found that denying prisoners the right to vote was more likely to send a message that undermined respect for the law and democracy than a message that enhanced those values. To deny prisoners the right to vote would remove an important means of teaching prisoners democratic values and social responsibility. Allowing elected representatives to disenfranchise a portion of the population has no place in a democracy built upon principles of inclusiveness, equality and citizen participation. As for the argument that prisoners should be denied the right to vote because of their “moral unworthiness”, the court found this to be inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter. That argument was contrary to the plain words of s.3 of the Charter and the fact that it is excluded from the s.33 override.

    With respect to the argument that denying the right to vote enhances the punishment, the court held that the government had offered no credible theory as to why it should be allowed to deny a fundamental democratic right as part of punishment. It held that denying the right to vote did not comply with the requirements of legitimate punishment – namely, that the punishment was not be arbitrary and that it must serve a valid criminal law purpose. To avoid arbitrariness punishment has to be tailored to the individual circumstances of the individual offender and s.51(e) had little to do with the offender’s particular crime. Further, disenfranchisement, according to the record and common sense, did not support the claim that it deters crime or rehabilitates criminals. The court held that a prohibition on all federal prisoners from voting, regardless of their crime, the harm they caused or the particular character of their conduct, did not meet the requirements of denunciatory, retributive punishment and was not rationally connected to the government’s stated goals.

    In addition, the court held that section 51 (e) was to broad and applied to too many people who should not be caught by it, even on the government’s own theory, and therefore it did not “minimally impair” the right to vote.

    Finally, the court also held that the negative effects of denying citizens the right to vote would greatly outweigh the tenuous benefits that might ensue. Again, the court held that the removal of the right vote removed a route to social development and undermined correctional policy directed towards rehabilitation and re-integration. The court noted in particular, once again, the disproportionate number of aboriginal people in our penitentiaries and how the negative effects of taking away the right to vote would have the disproportionate impact upon this already disadvantaged group. Having found a violation of section 3 of the Charter, The court did not decide the section 15 equality arguments.

    Prior to Sauve(supra) it had been held in the USA that prohibiting classes of person from voting goes to the core of democratic government. Mr. Justice Marshall of the Supreme Court of the United States expressed his concern about such prohibitions in Richardson v Ramirez 41 L Ed 2d 551 at p587:

    This Court's holding in Davis and Murphy that a State may disenfranchise a class of voters to "withdraw all political influence from those who are practically hostile" to the existing order, strikes at the very heart of the democratic process."

    In Canada, the federal government and all of the provinces except Newfoundland and Quebec enacted legislation prohibiting inmates from voting. The federal legislation was struck down in Sauve and to date Parliament has not introduced new legislation to replace it. Each of the provincial provisions limiting the right to vote in provincial elections, will now have to be re-examined in line of Sauve.

    Since the enactment of the Charter of Rights, several courts have been asked to consider the constitutionality of some of these legislative provisions. As yet the courts have failed to develop a consistent analytical approach in dealing with the right to vote.

    The conflicting approaches can be seen in Re Grondin and Ont (AG) (1989) 65 OR (2d) 427 (Ont HC) and Badger v Canada (AG) and Chief Electoral Officer of Canada [1989] 1 WWR 216 (Man CA).

    In Grondin the Crown conceded that s16 of the Ontario Election Act, which prohibits inmates "under sentence" from voting, prima facie infringes s3. However, the Crown maintained that the disenfranchisement of inmates under sentence was a reasonable limit on the right to vote under section 1.

    In finding s16 invalid, Mr Justice Bowlby pointed out that:

...the right to vote is so firmly entrenched in the Canadian Charter that, unlike other protected rights and freedoms, it is excluded from the override power afforded to parliament and the legislature by s33(1) of the Charter.

His Lordship concluded that (p423):

In my view, enabling convicted inmates to exercise their franchise and participate in the electoral process clearly advances those goals [rehabilitation]. The harmful effect of disenfranchisement on the rehabilitation of convicted inmates is of such significance that, in my view, disenfranchisement falls outside the parameters of s1 of the Charter as delineated by the Supreme Court of Canada in Oakes.

In evocative language reminiscent of many significant decisions of U.S. courts, Mr. Justice Bowlby continued at p432:

Punishment lies in confinement, but even with the most flagrant crime must exist hope of reform. This is the philosophy of our penal system; if not, then there has been much wasted thought by minds caught up in a penetrating hope. What greater avenue to constructive thought and hope of change of those who have contemptuously violated our laws is inherent in an interest in our democratic process and how we best will be governed The "prison bars" symbolize society's contempt for the breaking of the law: the ballot, the sunrise or birth of reform, at least, in part.

    At issue in Badger was s14(4)(e) (now s51(e)) of the Canada Elections Act, which then prohibited from voting-inmates "undergoing punishment", which was later struck down by the Supreme Court of Canada in the first Sauve case.

    In three separate concurring reasons the Manitoba Court of Appeal overturned the decision of Hirschfield, J (Badger et al v Canada (AG) and the Chief Electoral Officer of Canada -Unreported Manitoba Queen's Bench, November 4, 1988).

    Lyon, JA held that the enactment of the Charter was only intended to protect those rights in existence at the time the Charter came into force. In his view the Charter creates no new rights. Mr. Justice Lyon stated at p232:

I am satisfied that the framers of the Charter did not intend to create a new right, reflecting some unfamiliar, unconditional and abstract ideal which had never been enjoyed or accepted by the citizens of Canada. In these circumstances, it is clear that s14(4)(e) of the Canada Elections Act, an integral part of the right to vote since Confederation, cannot be construed as being in breach of s3 of the Charter.

    Chief Justice Monnin stated that he was inclined to say that s3 of the Charter "is not an absolute right and therefore one that can be abridged by Parliament without s1 coming into play" (p222). However, because a majority of the decisions he reviewed were of a contrary view, he addressed the issue of whether the breach of s3 could be saved by s1 of the Charter, and concluded that s14(4)(e) is a reasonable and demonstrably justified limit on the right to vote.

    Philp, JA agreed with the Chief Justice that s14(4)(e) was saved by s1, however, a doubt arose in his mind due to:

...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.

    Mr. Justice Philp referred to Badger v Man (AG) (1986) 27 CCC (3d) 158 (Man QB), where Scollin, J considered the prohibition against prisoners from voting in the Manitoba Election Act. In that case Mr. Justice Scollin held that the disqualification provision failed the "proportionality test" laid down in R v Oakes (1986) 24 CCC (3d) 321 (SCC) because it applied to persons serving a few days for a minimal infraction of a regulatory statute, as well as to the inmate who has committed the most abhorrent of crimes.

    Nonetheless, Philp JA concluded at p230 that:

Criminals serving their sentences have been disqualified from voting throughout Canadian history. If that disqualification is to be struck down under the Charter because of the breadth of its application, I would be hesitant to take on the duties of Parliament.

    As mentioned above,s.14(4)(e) of the Canada Elections Act was also considered in Sauve v Canada (A G) (1989) 66 OR (2d) 234 (Ont HC) initially and in Re Jolivet and Barker and The Queen (1984) 7 CCC (3d) 431 (BCSC).

    In Sauve the lower court held that the section survived the "proportionality test" because it was "reasonable in light of the history of the right to vote", and "the disqualification is in fact upon those who have chosen to disqualify themselves".

    Unlike Sauve, Mr. Justice Taylor in Re Jolivet accepted that the disenfranchisement of prisoners cannot be justified under s1 on grounds of unfitness to vote, or as a further penalty for committing a crime. Rather the disqualification could only be justified if "the right to vote by prisoners would be impossible for practical reasons."

    After reviewing the living conditions of inmates, Taylor, J held at p436:

...that 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 inevitable interference in free inflow and circulation of information and ideas, all of which are necessary to preservation of prison order and discipline, render 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".

Consequently, Taylor J concluded disenfranchising prisoners is justifiable and authorized by s1 of the Charter.

    However, Mr. Justice Taylor's reasons should be compared to Gould v Canada (AG) [1984] 1 FC 1119 (FCTD) [overruled by the Court of Appeal and Supreme Court of Canada but on the grounds that it was not a matter for an interim injunction, [1984] 1 FC 1133 (FCA); affirmed [1984] 2 SCR 124 (SCC)] and Levesque v Canada (AG) (1985) 25 DLR (4th) 184 (FCTD). In both cases the courts held that administrative or security reasons could not justify denying inmates their voting rights.

    In Reynolds v BC (AG) [1984] 5 WWR 270 the BC Court of Appeal ruled that s3(1)(b) of the BC Election Act was of no force and effect to the extent that it denied persons on probation the right to vote.

    The section disqualified any person convicted of an indictable offence unless he had been pardoned or completed his sentence. Chief Justice Nemetz writing for the majority said that the absence of similar restrictions in other jurisdictions, and bearing in mind that the purpose of non-custodial sentences is to allow the reintegration of incarcerated persons into society, disqualifying persons on probation from voting is not a reasonable limit within the meaning of s1 of the Charter.

As a result of the recent decision of the Supreme Court of Canada in Sauve (supra) there is no longer any prohibition from voting by any prisoners in federal elections.

Section 51(e) of the Canada Elections Act, RSC 1985, disqualifies from voting:

every person undergoing punishment as an inmate in any penal institution for the commission of any offence.

A number of earlier authorities held that that provision was constitutional. See for example, Badger v Canada (A G) and Chief Electoral Officer of Canada (Man CA), supra, overturning the decision of Hirschfield, J; Badger et al v Canada (AG) and the Chief Electoral Officer of Canada -Unreported Manitoba Queen's Bench, November 4, 1988; Sauve v Canada (A G), supra; and Re Jolivet and Barker and The Queen. Gould v Canada (A G), supra, was to the contrary but was overturned by the higher courts on the basis that an interim injunction should not have been granted. However, in Sauve v. Canada(Attorney General),[1993] 2 S.C R.438,the Supreme Court of Canada held it to be unconstitutional as an unjustified denial of the right to vote guaranteed by s.3 of the charter.

Parliament responded by replacing section 51(e) with a provision that denied the right to vote to all inmates serving sentences of two years or more – namely all federal prisoners. It was at this latter provision that was struck down as unconstitutional by the Supreme Court of Canada in its recent decision in Sauve (supra).

Until 1985 s4 of the Newfoundland Election Act, RSN 1970 c106, disqualified from voting "every person held in custody under warrant of commitment in any penitentiary or gaol."

    However, in 1985 the Newfoundland legislature enacted The Charter of Rights Amendment Act, SN 1985 c11, and s69 of that Act repealed the disqualification of inmates from voting.

Section 21(d) of the Prince Edward Island Election Act, RSPEI 1974 cE-1 disqualifies from voting:

a person undergoing punishment in a penal or reform institution.

The constitutionality of this section is now suspect in light of Sauve (supra).

Section 26(d) of the Nova Scotia Elections Act, RSNS 1967 c83, disqualifies from voting:

a person undergoing punishment in a penal or reform institution.

The constitutionality of this section is now suspect in light of Sauve (supra).

Section 43(2) of the New Brunswick Elections Act, RSNB 1973 cE-3, states:

s43(2) The following persons are disqualified from voting and shall not vote:

every person undergoing punishment as an inmate in a penal institution for the commission of any offence.

The constitutionality of this section is now suspect in light of Sauve (supra).

Section 51 of the Elections Act SQ1979 c56 states:

51. Every inmate has the right to vote at general elections.

     To exercise his right to vote, an inmate must be entered on the list of the electors of the house of detention in which he is detained. He shall exercise his right to vote in the advance polling station of that establishment.

     His vote shall be counted in the electoral division of his domicile.

See also Levesque v Canada (AG) (1985) 25 DLR (4th) 184 (FCTD), where it was held that s3 of the Charter entitles an inmate in a federal prison to vote in a provincial election, notwithstanding security and administrative considerations.

Section 16 of the Ontario Election Act, SO 1984 c54 provides that:

16. Every person who is an inmate in a penal or correctional institution under sentence of imprisonment is disqualified from voting.

In Re Grondin and Ontario (AG) (1988) 65 OR (2d) 427 (Ont HCJ) the court ruled that s16 of the Ontario Election Act, 1984 SC 1984, c54, is inconsistent with s3 of the Charter and that it could not be saved by s1 of the Charter as a reasonable limit on the right to vote.

The right to vote has been guaranteed to every Canadian citizen by s3 of the Charter. If a limitation on such a fundamental aspect of democracy had been contemplated by those who framed our constitution, I am of the view that such a limitation could have been specifically provided for and made infinitely clear. By way of comparison, the exclusion of prisoners from the franchise is specifically sanctioned by the Fourteenth Amendment to the United States Constitution. In contrast, however, the right to vote is so firmly entrenched in the Canadian Charter that, unlike other protected rights and freedoms, it is excluded from the override power afforded to parliament and the legislature by s33(1) of the Charter.

In addition, the court ruled that s16 did not satisfy the Oakes proportionality test. The absence of any distinction in length of sentence and the fact the date of an election may occur during a one-week prison term, but not during the sentence of another inmate serving several years, gave to s16 an arbitrary aspect which could not be saved by s1.

The recent decision of the Supreme Court of Canada in Sauve (supra) provides further support for the unconstitutionality of this section.

Section 31(d) of the Manitoba Elections Act, RSM 1987, cE30, disqualifies from voting:

Persons who are in gaols, prisons or places of detention serving a sentence imposed as punishment for an offence under the law.

Mr. Justice Scollin of the Manitoba Queen's Bench held in Badger v Manitoba (AG) (1986) 27 CCC (3d) 158 that s31(d) infringed s3 of the Charter and could not be saved by s1 of the Charter. Though limiting the right of prisoners to vote may have legitimate objectives, the section as drafted fails to meet the proportionality test because it prohibits all inmates from voting, regardless whether their offence was serious or minor.

    The Manitoba Court of Appeal, though not asked to consider the merits of Scollin J's decision, were asked to issue mandamus to have the petitioners names placed on the voting list: Badger v Manitoba (AG) (1986) 29 CCC (3d) 92. The court declined to do so noting that there was only 17 hours before the polls opened, and it was really a matter for the chief electoral officer to decide what process should be used to enable inmates to vote.

This section is also suspect in terms of its constitutionality because of the recent decision of the Supreme Court of Canada in Sauve (supra).

Section 27 of the Saskatchewan Elections Act, ASS 1974, c38, provides that:

27. The following persons are hereby disqualified to be registered as voters and shall not vote:

a person who, on polling day, is in jailor prison undergoing punishment as a result of having been convicted of an offence;

) a person who, on polling day, is subject to an order of a lieutenant governor made pursuant to section 545 of the Criminal Code, as amended from time to time, which is not discharged.

In Re Maltby and Saskatchewan (AG) (1982) 2 CCC (3d) 153 (Sask QB), it was held that inmates on remand who had not been sentenced are not disqualified from voting. An appeal from this decision to the Saskatchewan Court of Appeal was dismissed as moot: 13 CCC (3d) 308 (Sask CA).

The decision over the Supreme Court of Canada in Sauve (supra) brings into question the constitutionality of this section.

Section 41 of the Alberta Election Act, RSA 1980, cE-2, provides that:

41. The following persons are not eligible to vote at an election:

persons who have been convicted of an offence and as a result of that conviction are, on polling day,

inmates of a correctional institution under the Corrections Act or a penitentiary under the Penitentiary Act (Canada) as a result of being sentenced to a term of imprisonment, other than inmates resident in facilities designated as community residential centres under this Act by an order of the Solicitor General, or

inmates of a correctional institution under the Corrections Act awaiting sentencing for which a term of imprisonment may be imposed.

The recent decision of the Supreme Court of Canada in Sauve (supra)makes the constitutionality of this section suspect.

Section 3(1)(b) of the BC Election Act, RSBC 1979, c1O3, disqualifies from voting any person that:

has been convicted of treason or an indictable offence, unless he has secured a free or conditional pardon for the offence or has undergone the sentence imposed for the offence.

Although not a prison case the BC Court of Appeal addressed the issue of voting rights in Re Hoogbruin and BC (AG) (1986) 24 DLR (4th) 718. There the court stated at p720:

By way of preface it is to be noted that the right to vote is a democratic right so strongly entrenched in the Charter that unlike the fundamental freedoms set out in s2, and the legal rights set forth is ss7 to 15, it is not subject to the override clause afforded the Legislature by s33(1). Accordingly, subject only to obvious exclusions such as minors or mental incompetents, the right to vote is firmly entrenched in our Constitution.

See also Reynolds v BC (AG), supra.

The recent decision of the Supreme Court of Canada in Sauve (supra) calls into question the constitutionality and this section.

Section 28(3)(c) of the Northwest Territories Elections Act, SNWT 1986, c2 disqualifies from voting:

every person undergoing punishment as an inmate in a prison for the commission of an offence.

Once again, the constitutionality of this section is highly suspect as a result of the recent decision of the Supreme Court of Canada in Sauve (supra). :

Section 5(d) of the Yukon Territory Elections Act, RSYT 1986, c48 disqualifies from voting:

every person who, by reason of being deprived of his liberty of movement while awaiting appeal or sentencing or while undergoing punishment for the commission of an offence, is unable to attend at a polling station to vote.

Similarly, this section is highly suspect in terms of its constitutionality in light of the recent decision of the Supreme Court of Canada in Sauve (Supra).