Harvey v. New Brunswick (Attorney General)

Harvey v. New Brunswick (Attorney General)
Collection
Supreme Court Judgments
Date
1996-08-22
Report
[1996] 2 SCR 876
Case number
23968
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
New Brunswick
Subjects
Constitutional law
Notes
SCC Case Information: 23968
Decision Content
Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876
Fred Harvey Appellant
v.
The Attorney General for New Brunswick,
the Minister of Municipalities, Culture and Housing,
Dennis Cochrane and Hazen Myers Respondents
and
The Attorney General of Canada, the
Attorney General for Ontario and the
Attorney General of Quebec Interveners
Indexed as: Harvey v. New Brunswick (Attorney General)
File No.: 23968.
1996: February 19; 1996: August 22.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for new brunswick
Constitutional law ‑‑ Charter of Rights ‑‑ Right to be qualified for membership in legislature ‑‑ Member of provincial legislature convicted of illegal practice and expelled from legislature pursuant to provincial elections legislation ‑‑ Legislation also disqualifying anyone convicted of illegal practice from holding electoral office for five years ‑‑ Whether disqualifications infringe s. 3 of Charter ‑‑ If so, whether infringement justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 3 ‑‑ Elections Act, R.S.N.B. 1973, c. E‑3, s. 119(c).
Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual treatment or punishment ‑‑ Member of provincial legislature convicted of illegal practice and expelled from legislature pursuant to provincial elections legislation ‑‑ Legislation also disqualifying anyone convicted of illegal practice from holding electoral office for five years ‑‑ Whether disqualifications infringe s. 12 of Charter ‑‑ Canadian Charter of Rights and Freedoms, s. 12 ‑‑ Elections Act, R.S.N.B. 1973, c. E‑3, s. 119(c).
The appellant was elected to the New Brunswick Legislative Assembly in 1991. Following that election he was convicted of committing an illegal practice under the Elections Act and was expelled from the legislature under s. 119(c). He had induced a 16‑year‑old female to vote in the election, knowing that she was not eligible to vote. The trial judge allowed the appellant’s constitutional challenge in part, holding that ss. 119(a) and 119(c) of the Elections Act violated the appellant's rights guaranteed by s. 3 of the Charter . Section 119(a) disqualifies anyone convicted of an illegal practice from voting in an election for a period of five years. The trial judge further held that s. 119(a) and the first part of s. 119(c), which prevented the appellant from seeking re‑election for a period of five years, were not justified under s. 1 of the Charter , but that the second portion of s. 119(c), which required a sitting member to vacate his seat on conviction for a corrupt or illegal practice, was a reasonable limit under s. 1 . The judge then proceeded to sever the invalid provisions of s. 119 from the remainder. The Court of Appeal dismissed the appellant's appeal and, in a majority decision, allowed the cross‑appeal with respect to the trial judge's finding that the five‑year disqualification provision of s. 119(c) was unconstitutional.
Held: The appeal should be dismissed.
Per La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: There is no question that the appellant’s actions amounted to an attack on the integrity of the electoral process which is at the heart of a free and democratic society and constituted a breach of trust deserving of censure. Given that the parties have chosen not to ground their argument on the basis that the expulsion and disqualification are privileges of the Legislative Assembly, and given that there were no submissions by any party on the point, it will be assumed that the provisions of s. 119(c) are subject to the Charter . The provisions of s. 119(c) are prima facie unconstitutional as violating the appellant’s rights under s. 3 of the Charter . While the English version of s. 3 , which provides for a “right . . . to be qualified for membership” in a legislative assembly, is somewhat ambiguous, the French version is straightforward and indicates that the right to be a candidate and to sit as a member of Parliament or a legislative assembly should be read in a broad manner. In interpreting the right to vote under s. 3 , this Court, and Canadian courts in general, have taken the approach that the justification for limitations on the right must be grounded in s. 1 of the Charter , and there is no justification in the wording for taking a different approach to the right to stand for election and become a member of Parliament or a legislative assembly.
Section 119(c) of the Elections Act is a justified infringement upon the right to be qualified for membership in the Legislative Assembly under s. 1 of the Charter . The primary goal of the impugned legislation, which is to maintain and enhance the integrity of the electoral process, 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. There is also a rational connection between the means employed in s. 119(c) and the section’s objective. The requirement that an elected MLA vacate his seat on being convicted of a corrupt or illegal election offence logically furthers the objective of preserving the integrity of the election process, and the five‑year disqualification acts as a strong deterrent and helps to promote confidence in the electoral system. Section 119(c) is not arbitrary in that it applies only to a specified group of individuals who are convicted of specified offences. That part of s. 119(c) that requires convicted individuals to vacate their legislative seat is an appropriate response and in no way overreaches the target when the objective of maintaining the integrity of the electoral process is considered. The imposition of the five‑year disqualification also meets the minimal impairment test. In settling on a five‑year disqualification the legislature has ensured that the appellant is ineligible to run in the next general election. In addition, a five‑year disqualification provides for a time of cleansing, allowing the integrity of the electoral process to be renewed both in real terms and in the mind of the electorate. Finally, the effects of s. 119(c) are proportional to its objective of ensuring, preserving, and protecting the integrity of the electoral process, subject to the caveat that the five‑year disqualification would cease to apply if a member’s conviction was overturned on appeal.
The provisions of s. 119(c) do not amount to cruel and unusual punishment contrary to s. 12 of the Charter . Even if the disqualifications are properly classified as “punishment”, a given punishment is cruel and unusual only if it is so excessive as to outrage standards of decency or if it is grossly disproportionate to the offence. On the basis of these tests, the disqualifications imposed by s. 119(c) do not violate s. 12 of the Charter , either with regard to the particular offence committed by the appellant or with regard to the range of offences under the Elections Act to which s. 119(c) can apply.
Since no appeal was taken in respect of the trial judge’s ruling that s. 119(a) is unconstitutional, that ruling must stand but the provision can be severed from the remainder of the section.
Per Lamer C.J.: Since the parliamentary privilege at issue is embodied in, or being exercised pursuant to, legislation enacted by the legislature, the Charter clearly applies in this case and the appeal should be dismissed for the reasons given by La Forest J.
Per L’Heureux‑Dubé and McLachlin JJ.: The disqualification for office raised in this case falls within the historical privilege of the legislature and is hence immune from judicial review. Parliament and the legislatures of Canada have the power to regulate their procedures both inside and outside the legislative chamber. The preamble to the Constitution Act, 1867 affirms a parliamentary system of government, incorporating into the Canadian Constitution the right of Parliament and the legislatures to regulate their own affairs. It also incorporates the notion of the separation of powers, which precludes the courts from trenching on the internal affairs of the other branches of government. Because parliamentary privilege enjoys constitutional status it is not subject to the Charter . The necessary reconciliation of parliamentary privilege and s. 3 of the Charter is achieved by interpreting the democratic guarantees of s. 3 in a purposive way. The purpose of the democratic guarantees in the Charter must be taken to be the preservation of democratic values inherent in the existing Canadian Constitution, including the fundamental constitutional right of Parliament and the legislatures to regulate their own proceedings. Since express words would be required to overthrow such an important constitutional principle as parliamentary privilege, s. 3 of the Charter must be read as being consistent with parliamentary privilege. This does not leave s. 3 without meaning, however, since it still operates to prevent citizens from being disqualified from holding office on grounds which fall outside the rules by which Parliament and the legislatures conduct their business, such as race and gender. The courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege. If it does not, they may proceed with Charter review. If it does, they must leave the matter to the legislature.
Expulsion from the legislature of members deemed unfit is a proper exercise of parliamentary privilege. It is clear that had the New Brunswick legislature simply expelled the appellant, that decision would fall squarely within its parliamentary privilege and the courts would have no power to review it. Disqualification may be argued to fall within parliamentary privilege on two grounds: first, as a means of making expulsion effective; and second, as a privilege in its own right. Disqualification is necessary to prevent the person from simply seeking re‑election in the first available by‑election, often in the very riding vacated by the expulsion order. Disqualification may also fall within parliamentary privilege in its own right. It serves the same purposes as expulsion for acts committed outside the legislature, which has long been recognized as privileged. The legislature should be permitted to determine in advance of the person taking office whether he or she is fit to serve, rather than being required to wait until the person assumes office. Since the appellant’s disqualification was a legitimate exercise of parliamentary privilege, that disqualification must stand.
Cases Cited
By La Forest J.
Referred to: Schachter v. Canada, [1992] 2 S.C.R. 679; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Reference Re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438; Canadian Disability Rights Council v. Canada, [1988] 3 F.C. 622; Muldoon v. Canada, [1988] 3 F.C. 628; Re Hoogbruin and Attorney‑General of British Columbia (1985), 24 D.L.R. (4th) 718; MacLean v. Nova Scotia (Attorney General) (1987), 76 N.S.R. (2d) 296; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Miller (1988), 65 O.R. (2d) 746; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Smith, [1987] 1 S.C.R. 1045; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Keegstra, [1990] 3 S.C.R. 697; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
By Lamer C.J.
Distinguished: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319.
By McLachlin J.
Referred to: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Stockdale v. Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 3 , 4 , 12 , 15 , 32 , 33 .
Commonwealth Electoral Act 1918 (Aus.), No. 27 of 1918.
Constitution Act, 1867 , preamble, s. 39 .
Elections Act, R.S.N.B. 1973, c. E‑3, ss. 111(1), 118(2), 119(a), (b), (c).
Electoral Act 1993 (N.Z.), 1993, No. 87.
Legislative Assembly Act, R.S.N.B. 1973, c. L‑3, s. 24.
Parliamentary Papers Act, 1840 (U.K.), 3 & 4 Vict., c. 9.
Representation of the People Act 1983 (U.K.), 1983, c. 2.
Authors Cited
American Jurisprudence, vol. 26, 2d ed. Rochester: Lawyers Cooperative, 1996.
Bourinot, John George, Sir. Parliamentary Procedure and Practice in the Dominion of Canada, 2nd ed. Montreal: Dawson Bros., 1892.
Dawson’s The Government of Canada, 6th ed. Toronto: University of Toronto Press, 1987.
Heard, Andrew. “The Expulsion and Disqualification of Legislators: Parliamentary Privilege and the Charter of Rights ” (1995), 18 Dalhousie L.J. 380.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992 (loose-leaf).
Maingot, Joseph. Parliamentary Privilege in Canada. Toronto: Butterworths, 1982.
May, Thomas Erskine, Sir. Treatise on the Law, Privileges, Proceedings, and Usage of Parliament, 5th ed. London: Butterworths, 1863.
Nouveau Petit Robert. Paris: Le Robert, 1994, “éligible”.
Pelletier, Marcel R. “Privilege in the Canadian Parliament” (1973), 54 Parliamentarian 143.
APPEAL from a judgment of the New Brunswick Court of Appeal (1993), 141 N.B.R. (2d) 117, 361 A.P.R. 117, 109 D.L.R. (4th) 371, varying a judgment of the Court of Queen’s Bench (1993), 133 N.B.R. (2d) 181, 341 A.P.R. 181, declaring certain provisions of the New Brunswick Elections Act unconstitutional. Appeal dismissed.
E. J. Mockler, Q.C., for the appellant.
Bruce Judah, Q.C., for the respondents the Attorney General for New Brunswick and the Minister of Municipalities, Culture and Housing.
Graham Garton, Q.C., and Stephen Zaluski, for the intervener the Attorney General of Canada.
Robert E. Charney and Alan Stewart, for the intervener the Attorney General for Ontario.
Written submissions only by Dominique A. Jobin, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
1 The Chief Justice -- I have had the benefit of reading the reasons of my colleagues and agree with Justice La Forest that s. 119(c) of the New Brunswick Elections Act, R.S.N.B. 1973, c. E-3, constitutes a reasonable and demonstrably justified restriction on s. 3 of the Canadian Charter of Rights and Freedoms . My colleague Justice McLachlin reaches the same conclusion by way of a different line of reasoning. In her view, the expulsion and disqualification provisions of s. 119(c) are immune from Charter review because they fall within the valid exercise of parliamentary privilege. My colleague La Forest J. has decided not to address this issue because it was raised by an intervener, who must take the case as he or she finds it, and given the fact that there were no submissions by any party on the point. I feel it necessary to discuss briefly how this case differs, at least in my view, from the one before us in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, and, therefore, why it is not necessary for me to consider the line of reasoning proposed by McLachlin J. in addition to those reasons given by La Forest J.
2 In the New Brunswick Broadcasting case, a majority of this Court was of the view that the Charter did not apply to the exercise of the inherent privilege of members of the House of Assembly to exclude strangers as this privilege enjoyed constitutional status as part of the Constitution of Canada. I concurred in the result, but for a very different reason. I was of the view that the first question to be addressed in this context is to look at whether the parliamentary privilege at issue is embodied in, or being exercised pursuant to, legislation enacted by the legislature, on the one hand, or pursuant to the internal and inherent "rules" or "resolutions" of a House of Assembly to govern its proceedings on the other. In the case of the former, the Charter clearly applies as the action falls within the meaning of the words "legislature" or "government" in s. 32 of the Charter . In this regard, I held (at p. 364):
There is no doubt that [privileges are clearly "matters within the authority of the legislatures of each province"] . . . in the sense that the provincial legislatures have the power to legislate in relation to privileges. The legislation that the provinces have enacted with respect to privileges will be reviewable under the Charter as is all other legislation. [Emphasis added.]
In the context of internal and inherent "rules" or "resolutions", I was of the view in New Brunswick Broadcasting that s. 32 is not triggered and therefore the Charter does not apply. I therefore did not need to decide whether the parliamentary privilege at issue in that case had achieved constitutional status by reason of the preamble to the Constitution Act, 1867 . I was, however, unconvinced by the reasons of the majority, in that case, that those privileges not dependent on statute for their existence had been granted a constitutional status by the preamble of the Constitution Act, 1867 and remain so today. However, I will leave it to another day when the issue is properly before this Court.
3 As the Charter clearly applies in this case, for the reasons I gave in New Brunswick Broadcasting, I would dismiss the appeal for the reasons of my colleague La Forest J.
The judgment of La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
4 La Forest J. -- At issue in this appeal is whether the provisions of s. 119(c) of the New Brunswick Elections Act, R.S.N.B. 1973, c. E-3, violate s. 3 or s. 12 of the Canadian Charter of Rights and Freedoms and, if so, whether they are saved by s. 1 . These provisions prescribe that on being convicted of an illegal or corrupt practice pursuant to the Elections Act, a member’s seat shall be vacated and he or she shall be disqualified from running as a candidate for five years.
Facts
5 The appellant, Harvey, was elected in September 1991 to represent the electoral district of Carleton North in the Legislative Assembly of New Brunswick. Following that election he was charged with and convicted of an offence under ss. 111(1) and 118(2) of the Elections Act, which read:
111 (1) Every person who induces or procures any other person to vote at an election, knowing that such other person is for any reason not qualified to vote at the election, is guilty of an illegal practice.
118 (2) Any person who commits an illegal practice is guilty of an offence against this Act and on summary conviction is liable to a fine not exceeding five hundred dollars.
The appellant had induced a 16-year-old female to vote in the election, knowing that she was not eligible to vote. The appellant’s conviction was upheld on appeal and his application for leave to appeal to this Court was dismissed on May 19, 1994: [1994] 2 S.C.R. vii.
6 By letter dated January 6, 1993, the respondents Cochrane and Myers, who at the time were both members of the Legislative Assembly, certified to the respondent Minister pursuant to s. 24 of the Legislative Assembly Act, R.S.N.B. 1973, c. L-3, that the seat for the constituency of Carleton North was vacant. They informed the Minister that the vacancy resulted from the appellant's disqualification under s. 119(c) of the Elections Act, by reason of his conviction of an illegal practice. On January 14, 1993, the Minister reported the notification to the Lieutenant-Governor in Council. Section 119 reads:
119 Any person who is convicted of having committed any offence that is a corrupt or illegal practice shall, during the five years next after the date of his being convicted, in addition to any other punishment by this or any other Act prescribed, be disqualified from and be incapable of
(a) being registered as an elector or of voting at any election,
(b) holding any office in the nomination of the Crown or of the Lieutenant-Governor in Council, or
(c) being elected to or sitting in the Legislative Assembly and, if at such date he has been elected to the Legislative Assembly, his seat shall be vacated from the time of such conviction.
7 On January 13, 1993, the appellant commenced proceedings to challenge the constitutionality of s. 119 of the Elections Act and certain sections of the Legislative Assembly Act. The trial judge allowed the application in part, holding that ss. 119(a) and 119(c) of the Elections Act violated the appellant's rights guaranteed by s. 3 of the Charter : (1993), 133 N.B.R. (2d) 181, 341 A.P.R. 181. Section 119(b) was not in issue. The trial judge further held that s. 119(a) and the first part of s. 119(c), which prevented the appellant from seeking re-election for a period of five years, were not justified under s. 1 of the Charter , but that the second portion of s. 119(c), which required a sitting member to vacate his seat on conviction for a corrupt or illegal practice, was a reasonable limit under s. 1 . The judge then proceeded to sever the invalid provisions of s. 119 from the remainder.
8 On March 10, 1993, the appellant appealed to the Court of Appeal, and the respondents the Attorney General for New Brunswick and the Minister of Municipalities, Culture and Housing cross-appealed the trial judge's finding that the five-year disqualification provision of s. 119(c) was unconstitutional. Pending the hearing of the appeal the appellant sought, but was refused, interim relief in the form of a stay of proceedings with respect to the operation of s. 119(c). As a result, on June 28, 1993, a by-election was held in Carleton North in which the appellant was not a candidate. On November 10, 1993, the Court of Appeal dismissed the appellant's appeal and, Rice J.A. dissenting, allowed the cross-appeal: (1993), 141 N.B.R. (2d) 117, 361 A.P.R. 117, 109 D.L.R. (4th) 371. Since the appellant’s conviction, one general election has been held in New Brunswick on September 11, 1995. Pursuant to the provisions of s. 119(c), the appellant was ineligible to stand as a candidate in that election.
9 Leave to appeal to this Court was granted on June 2, 1994: [1994] 2 S.C.R. vii.
Judicial History
New Brunswick Court of Queen’s Bench (1993), 133 N.B.R. (2d) 181
10 The trial judge, Dickson J., found that the disqualification in respect of holding public office imposed by s. 119(b) of the Elections Act was of little relevance and could be ignored for the purposes of the case. He also dismissed the appellant's arguments based on ss. 12 and 15 of the Charter . Section 12 , he held, is not concerned with civil disabilities resulting to a person on conviction for an illegal election offence, and s. 119 of the Elections Act “does not treat nor does it purport to treat the applicant in any fashion different from that in which any other individual is treated” (pp. 194-95).
11 Turning to ss. 119(a) and (c) of the Elections Act, Dickson J. found these violated the appellant's democratic rights guaranteed by s. 3 of the Charter . After referring to the relevant cases regarding the application of s. 1 of the Charter , he concluded that s. 119(a) and the first portion of s. 119(c), the five-year disqualification from being a candidate in a provincial election, did not represent reasonable limits demonstrably justified in a free and democratic society. He stated (at pp. 198-99):
Those disqualifications represent, in my view, too great a departure from the rights guaranteed by s. 3 of the Charter to be recognized as valid. Their prescription accomplishes little which could not be accomplished by other valid means, for instance by merely providing some more appropriate scale of penalties under the Elections Act for electoral offences.
However, Dickson J. held that the second portion of s. 119(c) of the Elections Act, the requirement that a elected member vacate his or her seat if convicted of an illegal practice, was a justified limit under s. 1 of the Charter . He thus put it (at pp. 199-200):
It would in my view be patently ridiculous for a member guilty of an illegal practice and so found to be able to continue to hold his or her seat. Such could only bring the whole democratic electoral process and indeed the reputation of the Legislative Assembly and its other members into deep disrepute. Quite obviously the Legislature so felt in imposing that disqualification and the objective is as valid today as it was when the statutory provision was enacted, and notwithstanding enactment of the Constitution Act in 1982 and the Charter in the interim.
Any degree of misgiving I may have in concluding as I have done in upholding the provision that a sitting member vacate his or her seat is prompted only by the somewhat harsh, but in my view necessary, provision that the vacancy occurs on entry of the conviction and does not await the expiry of an appeal period or the hearing of any appeal. One must recognize that an appeal could drag on for months or even much longer. Suspension of operation of the disqualification pending resolution of the appeal could serve only to leave the affected member in a state of suspended and useless animation in the interim, and of no real worth either to the Assembly, to the constituents in the electoral district concerned, or to advancement of respect for the democratic system.
12 Finally, Dickson J. applied the test set forth in Schachter v. Canada, [1992] 2 S.C.R. 679, and severed the invalid provisions of s. 119 from the remainder of the section.
Court of Appeal (1993), 141 N.B.R. (2d) 117 (Ayles and Ryan JJ.A., Rice J.A. dissenting in part)
13 The Court of Appeal unanimously dismissed the appellant's appeal, and by majority allowed the cross-appeal filed by the respondents, the Attorney General for New Brunswick and the Minister of Municipalities, Culture and Housing, with respect to the constitutionality of the five-year disqualification provision of s. 119(c). Ryan J.A., speaking for the court, agreed with the respondents’ submissions that rights under the Charter are not absolute and that s. 3 of the Charter could not have been intended to protect behaviour “inimical to a free and democratic society” (p. 133). Nonetheless he appears to have found that s. 119(c) violated s. 3 of the Charter but was saved by s. 1 .
14 Ryan J.A. addressed each of the tests for determining whether s. 1 of the Charter could be invoked. First, he found that the objectives of s. 119(c) were of pressing and substantial importance in that the provision was designed to maintain the confidence of citizens in the integrity of the electoral process. Secondly, he considered that s. 119(c) met the test of proportionality in that it struck a reasonable balance between the objectives of maintaining the integrity of the legislative body and its means in depriving the appellant of his right to continue to sit or to seek re-election. Thirdly, he held that there was a rational connection between the maintenance and integrity of the electoral process and bringing about an immediate vacancy and a five-year disqualification from seeking political office for an elected member convicted of an electoral offence. He noted (at p. 140):
This type of short-term disqualification was accepted by the common law and has been in place for centuries in civilized societies. Unfortunately, it has not eradicated corrupt or illegal practices but it has made it more difficult to carry them out successfully.
15 With respect to the minimal impairment test, Ryan J.A. recognized that the legislature was forced to strike a balance between competing interests and held that the disqualification for five years was reasonable and accorded with s. 4 of the Charter , which provides a five-year maximum period for the life of a particular legislature. Finally, he concluded that the challenged legislation did accomplish an overall balance between its effects and objectives. The disqualifications were proportional to offences involving the intentional undermining of the electoral process. He observed (at pp. 141-42):
The disabilities are not permanent and are, therefore, not subversive of the rights of electors. They are for a reasonable time and they apply to a member upon whom the community rightly places a higher degree of responsibility.
. . .
Section 119(c) achieves an overall balance between the rights guaranteed by the Charter . It represents a legitimate exercise of legislative power designed solely to obtain desirable democratic objectives without placing undue or unreasonable limits on the constitutionally protected rights of the individual.
16 Given his conclusions regarding the validity of s. 119(c) it was not necessary for Ryan J.A. to consider the issue of severance. Nonetheless, he expressed the view that severing subsections as the trial judge had done was proper where the court was not creating “new legislation of a different character from that before it” (p. 143).
17 Though he agreed with the majority on the appeal, Rice J.A. dissented on the cross-appeal. After having stated that s. 3 of the Charter “is cast in clear and unambiguous terms and goes to the very foundation of a free and democratic society” (p. 130), he dismissed the respondents' arguments on the cross-appeal in the following terms (at pp. 130-31):
The societal importance alluded to by counsel for the Attorney General is the prevention of the subversion and undermining of the electoral process as well as the preservation of the integrity of the Legislative Assembly. To allow Mr. Harvey to seek re-election, it was submitted, would provide something of a “revolving door response” and hold the process up to ridicule and contempt.
I fail to see section 119(c) as having that societal importance and as being “pressing and substantial” when Mr. Harvey's right to a seat in the Legislative Assembly will be resolved and decided by the electorate in a democratic election in the exercise of their fundamental right to vote under s. 3 of the Charter . The measures taken are not necessary to the attainment of the objectives put forth by the respondent on the cross-appeal.
In my view, that part of s. 119(c) is also arbitrary in its application to any person who is convicted of a corrupt or illegal practice and is punitive as the words “in addition to any other punishment” implies. It is not aimed at the objectives the Attorney General suggests.
In the result Rice J.A. found that the five-year disqualification from seeking election found in s. 119(c) of the Elections Act violated s. 3 of the Charter and was not saved by s. 1 .
Issues
18 The Chief Justice stated the following constitutional questions for consideration by the Court:
1. Do the disqualifications prescribed by s. 119(c) of the Elections Act, R.S.N.B. 1973, c. E-3,
(a) relating to the right to be elected to or to sit in the Legislative Assembly,
(b) relating to the vacation of the seat of a convicted member,
infringe or deny in whole or in part the rights and freedoms guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms ?
2. Do the disqualifications prescribed by s. 119(c) of the Elections Act
(a) relating to the right to be elected to or to sit in the Legislative Assembly,
(b) relating to the vacation of the seat of a convicted member,
infringe or deny in whole or in part the rights and freedoms guaranteed by s. 12 of the Charter ?
3. If the answer to question (1) or (2) is in the affirmative, does the infringement or denial constitute a reasonable limit within the meaning of s. 1 of the Charter ?
The appellant also raised the following issue:
4. Are those portions of s. 119 which are inconsistent with the Charter severable from the remaining portions of that section?
Analysis
19 Before discussing the constitutional questions, it is appropriate to address two preliminary issues. The first was raised by counsel for the appellant and constituted an underlying thread throughout his argument before us. Simply put, it was his position that although the appellant was convicted of an offence under s. 111(1) of the Elections Act, all it amounted to in essence was an innocent mistake that in no way affected the outcome of the election. While it is true that the one vote in issue would not have changed the outcome, the appellant was convicted (and the conviction was upheld on appeal) of knowingly procuring the vote of a minor. The conviction itself rules out any possibility that the appellant’s actions were simply an “innocent mistake”. In my view there is no question that the appellant’s actions amounted to an attack on the integrity of the electoral process which is at the heart of a free and democratic society and constituted a breach of trust deserving of censure.
20 The second preliminary issue relates to whether the expulsion and disqualification imposed by s. 119(c) escape Charter scrutiny because of their status as privileges of the Legislative Assembly. The issue was appropriately brought to our attention by counsel for the intervener the Attorney General of Canada. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, a majority of this Court held that, at a minimum, the inherent privileges of Canada’s legislative bodies that are necessary to their proper functioning are constitutional privileges and therefore immune from Charter challenge. However, the issue was not seriously argued before us. In fact it was willingly conceded that it was appropriate to judge the provisions of s. 119(c) in light of the Charter . Given that the parties to the present appeal have chosen not to ground their argument on the basis that expulsion and disqualification are privileges of the Legislative Assembly, and given that there were no submissions by any party on the point, it is not necessary to decide that issue here. I will therefore proceed on the basis that the provisions of s. 119(c) are subject to the Charter .
Section 3 of the Charter
21 The first question arising on the appeal is the scope of the right of a citizen to run for elected office guaranteed by s. 3 of the Charter , which provides:
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.
The appellant’s position is straightforward. Section 3 of the Charter , he maintained, provides an unqualified right for every citizen of Canada to vote and to seek public office. In support of this position the appellant relied on the fact that the rights protected by s. 3 are “preferred” rights in that they are not subject to the notwithstanding clause found in s. 33 of the Charter . In short, he insists that any restriction on the rights contained in s. 3 must be justified under s. 1 of the Charter .
22 The competing viewpoint, urged on the Court both by the respondents and by the Attorney General of Canada, is that the rights guaranteed by s. 3 are not absolute but contain inherent limitations that need not be justified under s. 1 of the Charter . More specifically, they argue, when a contextual approach is applied to s. 3 , and the specific language used in the section is taken into account, the validity and consistency of s. 119(c) become clear.
23 In order to choose between these two fundamentally different viewpoints, the logical place to start is with this Court’s previous treatment of s. 3 of the Charter . While the Court has not yet examined the right to be an elected member found in the second part of s. 3 , it has on several occasions had the opportunity to consider the right to vote enshrined in the first part of the section. The fullest treatment of the right to vote appears in McLachlin J.’s majority reasons in Reference Re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158. At issue there was whether the purpose of the right was to guarantee equality of voting power or effective representation. Beginning at p. 179, McLachlin J. first considered the manner in which the content of a Charter right is to be determined. She identified the general principle, emerging from R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, as being that Charter rights should be interpreted in a broad and purposive manner having regard to the appropriate historical and social context. From this general principle she identified three particular considerations that were relevant to the interpretation of the right to vote: (1) that the Charter is part of the living tree that is the Canadian constitution and that as such, “the past plays a critical but non-exclusive role” (p. 180) in determining the scope of Charter rights; (2) that practical considerations should be borne in mind when undertaking constitutional interpretation; and (3) that the Court must be guided by the ideal of a “free and democratic society” as enunciated by Dickson C.J. in R. v. Oakes, [1986] 1 S.C.R. 103.
24 Applying these considerations to the first part of s. 3 , McLachlin J. concluded that the right enshrined by the right to vote was the right to effective representation. She stated, at pp. 188-89:
In summary, I am satisfied that the precepts which govern the interpretation of Charter rights support the conclusion that the right to vote should be defined as guaranteeing the right to effective representation. The concept of absolute voter parity does not accord with the development of the right to vote in the Canadian context and does not permit of sufficient flexibility to meet the practical difficulties inherent in representative government in a country such as Canada. In the end, it is the broader concept of effective representation which best serves the interests of a free and democratic society.
Based on this interpretation, McLachlin J. went on to find that the electoral boundaries in question did not violate s. 3 of the Charter since they could be justified on the grounds of effective representation and did not need to be justified under s. 1 .
25 In contrast to this approach is that used by this Court and others in dealing with particular statutory disqualifications of voters. In Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438, the Court found that the voting disqualification for inmates found in the Canada Elections Act, R.S.C., 1985, c. E-2, violated s. 3 and could only be justified under s. 1 of the Charter . Similarly, the federal disqualifications of mentally incompetent persons and federally appointed judges, and a provincial disqualification of absentee citizens have all been found to be prima facie unconstitutional; see Canadian Disability Rights Council v. Canada, [1988] 3 F.C. 622 (T.D.); Muldoon v. Canada, [1988] 3 F.C. 628 (T.D.); and Re Hoogbruin and Attorney-General of British Columbia (1985), 24 D.L.R. (4th) 718 (B.C.C.A.).
26 Professor Peter Hogg in Constitutional Law of Canada (3rd ed. 1992 (loose-leaf)) would apply the same logic to disqualifications in respect of the candidacy right in the second part of s. 3 . He states in vol. 2 at s. 42.2:
The qualifications of a member of