Sauvé v. Canada (Chief Electoral Officer)

Sauvé v. Canada (Chief Electoral Officer)
Collection
Supreme Court Judgments
Date
2002-10-31
Neutral citation
2002 SCC 68
Report
[2002] 3 SCR 519
Case number
27677
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Elections
Notes
SCC Case Information: 27677
Decision Content
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
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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 fo