[1996] 1 F.C. 857
T-2257-93
Richard Sauvé (Plaintiff)
v.
The Chief Electoral Officer of Canada, the Solicitor General of Canada and the Attorney General of Canada (Defendants)
T-1084-94
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, Émile A. Bear and Randy Opoonechaw (Plaintiffs)
v.
The Attorney General of Canada (Defendant)
Indexed as: Sauvé v. Canada (Chief Electoral Officer) (T.D.)
Trial Division, Wetston J.—Winnipeg, May 24, 25, 26, 29, 30, 31, June 1, 2, 5, 6, August 30, 31 and September 1; Ottawa, December 27, 1995.
Constitutional law — Charter of Rights — Democratic rights — Plaintiffs inmates, former inmates in correctional institutions — Disqualified from voting at federal election under Canada Elections Act, s. 51(e) — S. 51(e) prima facie breach of Charter, s. 3 — Objectives of infringing measure pressing, substantial — Rational connection between convict disenfranchisement for serious criminal conduct and enhancement of civic responsibility, respect for rule of law — Minimal impairment test not met — S. 51(e) hindering rehabilitation of offenders, successful reintegration into community — Incapable of producing salutary effects — No proportionality between salutary and deleterious effects — S. 51(e) infringing Charter, s. 3, not justified under s. 1.
Constitutional law — Charter of Rights — Equality rights — Under Canada Elections Act, convicts serving two years or more disqualified from voting at federal election — Impugned legislation not operating more harshly toward poor, native peoples although may target more from these groups — No direct discrimination on enumerated, analogous ground.
Elections — Plaintiffs challenging constitutionality of Canada Elections Act, s. 51(e) — Not qualified to vote at federal election as serving sentence of two years or more in correctional institution — Denial of right to vote intended to punish serious crimes — Legislative history of inmate disenfranchisement reviewed — Expert opinion evidence on political theory, democratic right to vote — Prison inmate disqualification not well-known in Canadian society — No negative costs to society if inmates granted right to vote — Effects of impugned legislation not proportional to objectives.
Penitentiaries — Convicts serving sentences of two years or more denied right to vote at federal election by Canada Elections Act, s. 51(e) — Impugned legislation infringing Charter, s. 3, not saved by s. 1 — Disenfranchisement of offenders related to commission of serious criminal acts — Retributive effects of s. 51(e) deleterious as contrary to purpose, principles of Corrections and Conditional Release Act — Impeding offenders’ reintegration into society.
These were actions brought by inmates or former inmates of correctional institutions, challenging the constitutionality of paragraph 51(e) of the Canada Elections Act. The previous version of that provision was struck down by the Supreme Court of Canada in May 1993. The new provision prohibits all prisoners serving a sentence of two years or more in a correctional institution from voting at a federal election. The plaintiffs, some of whom are Aboriginals, alleged that paragraph 51(e) of the Act contravenes sections 3 and 15 of the Charter. The defendants admitted that the impugned provision constitutes a prima facie breach of section 3 of the Charter, but maintained that the disqualification of convicts is justified under section 1 of the Charter, and does not discriminate within the meaning of section 15. This litigation raised two main issues: (1) what are the defendants’ objectives and are these pressing and substantial? (2) are the means embodied in paragraph 51(e) of the Canada Elections Act proportional to the objectives and effects of the provision?
Held, the actions should be allowed.
1) The defendants submitted that paragraph 51(e) advances two principal objectives: first, the enhancement of civic responsibility and respect for the rule of law, and second, the enhancement of the general purposes of the criminal sanction. The legislative text of paragraph 51(e) makes it clear that the disenfranchisement of offenders relates to the commission of serious criminal acts. The application of paragraph 51(e) is not offender specific, it is sentence specific. Sentences of two years or more involve serious crimes that reflect conduct which a court has determined to be sufficiently distasteful to have warranted such a sentence. Moral education also appears to be a rationale for the additional sanction of disenfranchisement. As to the objective of enhancing civic responsibility, the Debates of the House of Commons revealed that some consideration was given to the fact that the impugned provision is capable of sending a message to offenders, and to the general public, about the importance, in a democracy, of the right to vote. Paragraph 51(e) has, as its twin objectives, those submitted by the defendants. Even if the plaintiffs were right in saying that there is no unified western tradition of political theory, the evidence was that civic and moral responsibility are key components of our liberal democratic traditions. And because paragraph 51(e) has a punitive aspect, its objectives are pressing and substantial.
2) The first stage of the proportionality test requires that the means chosen to fulfil the legislative objectives bear a rational connection to those objectives. On the basis of logic and common sense, it can be said that disenfranchisement for serious criminal conduct is rationally connected to the goal of enhancing civic responsibility and respect for the rule of law. Paragraph 51(e) was intended to shape a voluntary social order as it sends a very strong message that certain forms of criminal behaviour are not acceptable in a free and democratic society. The morally educative function of the law is compelling. A rational connection exists between the impugned provision and the stated objective of enhancing the criminal sanction. As an aid to punishment, the provision clearly imposes a sanction, and denounces bad conduct. In the present case, the sanction takes the form of a disenfranchisement, in addition to the loss of liberty. At the second stage of the proportionality test, the Government must demonstrate that the impairment of rights is minimal. Parliament need not adopt the absolutely least intrusive means of attaining its objectives. What must be considered is the impact of the disqualification on individual offenders. For any particular federal election, those inmates who fit within paragraph 51(e) are completely denied the right to vote. Parliament could decide to enact legislation whereby a sentencing judge could order an offender’s disenfranchisement having taken into account the nature of the crime and the personal circumstances of the accused in conjunction with the principles of sentencing. Such a process would be a significantly less intrusive and equally effective means of infringing a citizen’s right to vote. The law as it now stands cannot distinguish the type of offender whose indecency is so profound as to threaten the principles of our free and democratic society. Paragraph 51(e) accordingly fails the minimal impairment component of the test in R. v. Oakes. At the third and final stage, the proportionate effects test requires that the deleterious effects of the impugned measure be proportionate to the attainment of its legislative objectives. This test has recently been restated and modified by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp. Under the reformulated test, there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the fundamental rights and freedoms and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures. This test should be applied in the present case. The evidence clearly indicated that inmate disqualification is not well-known in Canadian society. There may be strong philosophic and political reasons to support the disenfranchisement of convicts; however, there appears to be few practical reasons for doing so. The various purposes of sentencing are generally considered to be general deterrence, specific deterrence, protection of the public, rehabilitation and retribution. The latter is a more offender-specific aim of sentencing. Paragraph 51(e) hinders the rehabilitation of offenders and their successful reintegration into the community. It also serves to further alienate prison inmates from the community to which they must return, and in which their families live. The retributive effects of paragraph 51(e) are deleterious in that they are contrary to the purpose and principles contained in the Corrections and Conditional Release Act. There have been no negative costs to society in the provinces which allow convicts to vote at provincial elections. The salutary effects upon which the defendants relied are tenuous in the face of the denial of the democratic right to vote, and are insufficient to meet the civil standard of proof. The proportionality between the effects of the impugned legislation and its objectives, and the proportionality between its salutary effects and its deleterious effects were not satisfied. Paragraph 51(e) infringes section 3 of the Charter and is not justified under section 1.
The first step in a section 15 Charter analysis requires the Court to determine whether, due to a distinction created by the impugned law, there has been a denial of an equality right. The second step requires the Court to determine whether the distinction produced by legislation results in discrimination. Paragraph 51(e) removes the right to vote from all offenders who have been sentenced to a term of imprisonment of two years or more. All disenfranchised inmates suffer from this burden to the same degree. The impugned provision does not operate more harshly in relation to the poor and Aboriginal inmate groups although it may target more members from these two groups. Accordingly, there is no direct discrimination on the basis of an enumerated or analogous ground under section 15 of the Charter and paragraph 51(e) of the Canada Elections Act does not infringe that section.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Elections Act, R.S.C., 1985, c. E-2, s. 51(e) (as am. by S.C. 1993, c. 19, s. 23).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 3, 15.
Competition Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19).
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 4, 5, 76.
Criminal Code, R.S.C., 1985, c. C-46, ss. 46, 47, 48.
Election Act, S.B.C. 1995, c. 51.
Penitentiary Service Regulations, C.R.C., c. 1251, s. 41 (as am. by SOR/80-462, s. 1).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; (1994), 120 D.L.R. (4th) 12; 94 C.C.C. (3d) 289; 34 C.R. (4th) 269; 25 C.R.R. (2d) 1; 175 N.R. 1; 76 O.A.C. 81.
APPLIED:
R. v. Lyons, [1987] 2 S.C.R. 309; (1987), 44 D.L.R. (4th) 193; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1; 80 N.R. 161; Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201.
DISTINGUISHED:
Belczowski v. Canada, [1992] 2 F.C. 440 (1992), 90 D.L.R. (4th) 330; 12 C.R. (4th) 219; 9 C.R.R. (2d) 14; 132 N.R. 183 (C.A.); affg [1991] 3 F.C. 151 (1991), 5 C.R. (4th) 218; 6 C.R.R. (2d) 345; 42 F.T.R. 98 (T.D.).
CONSIDERED:
Sauvé v. Canada (Attorney General) (1988), 66 O.R. (2d) 234; 53 D.L.R. (4th) 595 (H.C.); revd (1992), 7 O.R. (3d) 481; 89 D.L.R. (4th) 644; 55 O.A.C. 219 (C.A.); Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438; (1993), 15 C.R.R. (2d) 1; 153 N.R. 242; 64 O.A.C. 124; Reference Re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; (1991), 81 D.L.R. (4th) 16; [1991] 5 W.W.R. 1; 127 N.R. 1; R. v. Butler, [1992] 1 S.C.R. 452; (1992), 89 D.L.R. (4th) 449; [1992] 2 W.W.R. 577; 70 C.C.C. (3d) 129; 11 C.R. (4th) 137; 8 C.R.R. (2d) 1; 78 Man. R. (2d) 1; 134 N.R. 81; 16 W.A.C. 1.
REFERRED TO:
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1; R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81; R. v. Goltz, [1991] 3 S.C.R. 485; (1991), 11 W.A.C. 161; 61 B.C.L.R. (2d) 145; 5 B.C.A.C. 161; 67 C.C.C. (3d) 481; 8 C.R. (4th) 82; 7 C.R.R. (2d) 1; 31 M.V.R. (2d) 137; 131 N.R. 1; R. v. Laba, [1994] 3 S.C.R. 965; (1994), 120 D.L.R. (4th) 175; 94 C.C.C. (3d) 385; 34 C.R. (4th) 360; 25 C.R.R. (2d) 92; 174 N.R. 321; 76 O.A.C. 241; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; (1995), 124 D.L.R. (4th) 449; 29 C.R.R. (2d) 1; [1995] 1 C.T.C. 382; 95 DTC 5273; 12 R.F.L. (4th) 1; Jackson v. Joyceville Penitentiary, [1990] 3 F.C. 55 (1990), 55 C.C.C. (3d) 50; 75 C.R. (3d) 174; 1 C.R.R. (2d) 327; 32 F.T.R. 96 (T.D.); Symes v. Canada, [1993] 4 S.C.R. 695; (1993), 110 D.L.R. (4th) 470; 19 C.R.R. (2d) 1; [1994] 1 C.T.C. 40; 94 DTC 6001; 161 N.R. 243.
AUTHORS CITED
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: Supply and Services Canada, 1987.
Canada. House of Commons. Special Committee on Electoral Reform. Minutes of Proceedings and Evidence, Issue No. 12, 1993.
Canada. Royal Commission on Electoral Reform and Party Financing. Final Report. Ottawa: Minister of Supply and Services Canada, 1991 (Chairman: Pierre Lortie).
Colvin, E. “Criminal Law and The Rule of Law” in Crime, Justice and Codification. Toronto: Carswell, 1986.
Cotterrell, Roger. The Sociology of Law: An Introduction. London: Butterworths, 1984.
House of Commons Debates, Vol. 14, 3rd Sess., 34th Parl., 1993, at pp. 18015-18107.
Landreville, P. and L. Lemonde. “Voting Rights for Prison Inmates” in Royal Commission on Electoral Reform and Party Financing. Democratic Rights and Electoral Reform in Canada (Research Studies; 10). Toronto: Dundurn Press, 1991.
Rawls, John. A Theory of Justice. Cambridge: Harvard Univ. Press, 1971.
Ruby, Clayton. Sentencing, 4th ed. Toronto: Butterworths, 1994.
Stuart, Don R. Canadian Criminal Law: A Treatise, 3rd ed. Toronto: Carswell, 1995.
The Charter of Rights and Freedoms: A Guide for Canadians. Ottawa: Supply and Services Canada, 1982.
ACTIONS to declare paragraph 51(e) of the Canada Elections Act unconstitutional as contrary to sections 3 and 15 of the Charter. Actions allowed.
COUNSEL:
Fergus J. O’Connor for plaintiff Richard Sauvé.
Arne Peltz for plaintiffs Sheldon McCorrister et al.
Gerald L. Chartier and Glenn D. Joyal for defendants.
SOLICITORS:
Fergus J. O’Connor, Kingston, Ontario, for plaintiff Richard Sauvé.
The following are the reasons for judgment rendered in English by
Wetston J.: The plaintiffs, who are inmates or former inmates of correctional institutions, are challenging the constitutionality of paragraph 51(e) of the Canada Elections Act (the CEA), R.S.C., 1985, c. E-2, as amended by S.C. 1993, c. 19, s. 23. The provision, which came into force on May 6, 1993, states:
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;
This provision replaces a previous disqualification, which was struck down by the Supreme Court of Canada in 1993.
The plaintiffs allege that paragraph 51(e) of the CEA contravenes both section 3 and section 15 of the Canadian Charter of Rights and Freedoms (the Charter) [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The defendants admit that the impugned provision constitutes a prima facie breach of section 3 of the Charter; however, they maintain that the disqualification of prisoners, as set out in paragraph 51(e) of the CEA, is justified under section 1 of the Charter, and does not discriminate within the meaning of section 15.
The present action comprises two separate actions that were joined and heard together. The plaintiffs are, or recently have been, inmates in Canadian correctional institutions. The plaintiff in the first case is Richard Sauvé. He is now on parole. There are a number of plaintiffs in the second case. Sheldon McCorrister, an Aboriginal, is the Chairman of the Stony Mountain Institution Inmate Welfare Committee. Lloyd Knezacek is the Vice-Chairman of that committee. Aaron Spence, who is also an Aboriginal, is the President of the Native Brotherhood Organization. The Native Brotherhood Organization represents Aboriginal inmates at the Stony Mountain Institution, primarily on matters relating to Aboriginal culture and spirituality.
THE NATURE OF THE EVIDENCE
There were few adjudicative facts presented in this trial. Where evidence of such facts exists, it will be considered at the appropriate place in these reasons. Other than the relevant adjudicative and legislative facts to which I shall refer, the evidence consists almost entirely of expert opinions.
The Expert Witnesses
The experts, on behalf of both the plaintiffs and defendants, were almost exclusively academics who advanced opinions in the areas of political theory, moral philosophy, political philosophy, philosophy of law, criminology, correctional policy and penal theory. Given the issues in this case, the type of expert evidence adduced represents a most reasonable approach to assisting the Court in its determination as to whether the disenfranchisement of prisoners is justified.
Almost all of the defendants’ witnesses are American citizens, American scholars, or American residents, or they have been primarily educated and trained in the United States. In contrast, most of the plaintiffs’ experts are Canadian citizens, Canadian scholars, and Canadian residents. Given the international nature of academia, it is clear that all of the experts have multifaceted backgrounds and experiences. Dr. Pangle, for example, has even recently taken out Canadian citizenship.
None of the defendants’ witnesses, despite their impressive academic backgrounds and contributions to scholarship, has ever considered the issue of prisoner disenfranchisement, before being retained by the Attorney General of Canada in this proceeding. Indeed, other than John Stuart Mill in a brief footnote reference, no well-known political theorist or moral philosopher, including de Tocqueville, Kant, Locke, Rousseau or Hobbes, has ever considered this question. More recent political and moral philosophers, such as Rawls, Hart, Murphy and Morris, have also not specifically considered this issue.
For the most part, with the exception of a report submitted by Dr. Colin Meredith, the evidence of the defendants may be characterized as academic and theoretical. While the plaintiffs also adduced considerable academic and theoretical evidence, on balance, their evidence is less lofty and is more tangible, particularly in relation to Canadian penology, social justice, and prisons. However, the evidence consists of virtually no observable phenomena. Indeed, the plaintiffs described the defendants’ case as highly theoretical and abstract. While it is possible that some areas of social science theory may be confirmed by empirical observation, there was little in this case that could be assigned to that category. The evidence of the defendants was provided principally as part of an ex post facto analysis.
In weighing the evidence, I have considered each expert witness’s skill, knowledge, training, experience, and the degree of attention which he or she gave to the matter in issue. Given the imprecise nature of the testimony, reason and common sense are even more important considerations in assessing the evidence. Furthermore, knowledge of Canadian society, laws, and institutions, and Canada’s liberal democratic traditions, is also significant. I was also struck by the fact that three of the defendants’ five expert witnesses are generally considered to represent non-mainstream positions in their respective theoretical disciplines. Although each expert, in this trial, has a well-established reputation, it is still necessary for the Court to analyze the evidence and to prefer and accept the testimony of one witness over that of another.
Plaintiffs Richard Sauvé and Aaron Spence
Two of the individual plaintiffs, Richard Sauvé and Aaron Spence, also provided testimony in the present matter. Mr. Sauvé was convicted of aiding and abetting in the murder of a rival bike-gang member. He was sentenced to twenty-five years of incarceration, and was released in May of 1994. Since his release, Mr. Sauvé has been living in a half-way house, and currently works as a furniture maker. He has worked with young offenders in a program known as Youths at Risk, and is now a candidate for a Master of Arts degree in Criminology from the University of Ottawa. An agreed transcript of his evidence from a previous trial involving prisoner voting rights was introduced in this case: See Sauvé v. Canada (Attorney General) (1988), 66 O.R. (2d) 234 (H.C.); reversed (1992), 7 O.R. (3d) 481 (C.A.) ([hereinafter] Sauvé No. 1); affirmed, [1993] 2 S.C.R. 438.
Mr. Sauvé believes that offenders are not born as criminals, but become criminals as a result of circumstances. He asserted that inmates would feel more linked to society if they were granted the right to vote. Furthermore, Mr. Sauvé testified that he had not lost his right of citizenship, nor his concern for society and his country, when he was sent to prison. He implied that prisoners eventually must return to society, and indicated that prisons are hostile environments containing many hurt individuals. He talked about various voluntary efforts within the Collins Bay penal institution which were organized by prisoners, including the sponsorship of camps for disadvantaged kids, foster parents, and a special olympiad for the “developmentally handicapped”.
Mr. Spence has a very different criminal record from that of Mr. Sauvé. Mr. Spence is an Aboriginal who is presently serving four years of incarceration for a combination of offences, including break and enter, theft, breach of a recognizance, and assault against another Aboriginal person. His record is extensive, and dates back to 1984. Mr. Spence now considers himself on the road to rehabilitation. He agreed that he has been acting dysfunctionally, selfishly, and irresponsibly. He also agreed that the right to vote is valuable, and that he does feel a deprivation as a result of this loss. He also feels that being inside a penal institution does not mean that his family on the outside are not being affected by government actions. Mr. Spence knows that he will return to society. In his words, “at one time or another, we are going to be part of that society, whether we like it or not.”
ANALYSIS
Section 3 of the Charter: The Democratic Right to Vote
The defendants concede that paragraph 51(e) of the CEA constitutes a prima facie breach of section 3 of the Charter. In my view, that is the appropriate position to take. Accordingly, the burden is on the defendants to prove that the impugned provision is a reasonable limit that is demonstrably justified in a free and democratic society, pursuant to section 1 of the Charter.
In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, the Supreme Court of Canada recently considered section 1 of the Charter, and explicitly adopted the approach to that section, as first set out in R. v. Oakes, [1986] 1 S.C.R. 103. In further elaborating upon the Oakes analysis, McLachlin J. noted the following, at pages 328-329:
The question is not whether the measure is popular or accords with the current public opinion polls. The question is rather whether it can be justified by application of the processes of reason.
…
The process is not one of mere intuition, nor is it one of deference to Parliament’s choice. It is a process of demonstration. This reinforces the notion inherent in the word “reasonable” of rational inference from evidence or established truths. [Emphasis in original.]
In short, the section 1 analysis is an exercise based not on abstractions, but on the facts of the case and the proof offered to justify the law. As stated by McLachlin J., at page 331:
Context is essential in determining legislative objective and proportionality, but it cannot be carried to the extreme of treating the challenged law as a unique socio-economic phenomenon, of which Parliament is deemed the best judge. This would undercut the obligation on Parliament to justify the limitations which it places on Charter rights… .
Depending upon the situation which the law is attempting to address, the degree of deference which the Court should accord to Parliament’s choice will vary. In this regard, McLachlin J. stated the following, at page 332:
As with context, however, care must be taken not to extend the notion of deference too far…Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have an important role: to determine, objectively and impartially, whether Parliament’s choice falls within this limiting framework of the Constitution.
The discharge of the civil standard does not require scientific demonstration; the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view: per Iacobucci J., in RJR-MacDonald Inc., supra, at page 352.
A previous version of paragraph 51(e) of the CEA was struck down by the Supreme Court of Canada in May 1993: Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438. In the present case, the defendants argue that the Court should defer to Parliament’s choice when it decided to re-enact a provision which would disenfranchise offenders who are imprisoned for a period of two or more years. In this regard, I am guided by the principles as outlined in RJR-MacDonald Inc., supra. In that case, a majority of the Supreme Court of Canada agreed that some deference may be shown to legislators, and recognition should be given to the difficulties inherent in the process of drafting rules of general application. However, the Court did caution that deference should not be taken too far: per McLachlin J. in RJR-MacDonald Inc., supra, at pages 332-333.
According to McLachlin J., in RJR-MacDonald Inc., supra, it is always difficult to determine when Parliament should be shown a greater degree of deference. It has been suggested that greater deference may be more appropriate in situations where the law is concerned with the competing rights of different sectors of society, rather than in cases which involve a contest between the individual and the state as the singular antagonist: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pages 993-994; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at page 563. Despite some submissions to the contrary which the defendants did not vigorously pursue, I find that this case is, on balance, one in which the state performs the role of singular antagonist. In any event, my examination of the evidence in this matter is made in relation to the civil standard of proof on a balance of probabilities, as required by RJR-MacDonald Inc., supra, at page 333.
I. What are the Defendants’ objectives, and are these pressing and substantial?
At this stage, the Court must determine whether the objectives of the infringing measure are sufficiently important to be capable, in principle, of justifying the limitation. To meet this test, the objectives must be of pressing and substantial importance.
(a) Objectives
The defendants submit that paragraph 51(e) of the CEA advances two principal objectives:
a) the enhancement of civic responsibility and respect for the rule of law; and,
b) the enhancement of the general purposes of the criminal sanction.
In the defendants’ view, prisoners serving sentences of two years or more do so for reasons relating to long criminal records and/or particularly serious criminal convictions. It is this bad conduct which attracts the important objectives.
With respect to the first objective, the defendants argue that the provision is designed to cultivate, among Canadian citizens, an appreciation for, and an understanding of, the relationship between individuals’ rights and societal responsibilities, i.e., good citizenship. In addition, the defendants argue that the provision seeks to denounce citizens who have, through their serious criminal conduct, acted in a grossly disrespectful manner toward the lives, property, or dignity of their fellow citizens. This denunciatory message aims to affirm the connection between participation in the voting process and commitment to the rule of law.
The defendants submit that the second objective of the legislation is the enhancement of the general purposes of the criminal sanction. In their view, the suspension of an inmate’s right to vote until he has been released from prison sends a message which has a retributive, denunciatory and morally educative function.
The plaintiffs do not fundamentally disagree with the objectives of good citizenship, respect for the rule of law and punishment of the guilty, upon which the defendants’ case is based. However, they contend that the defendants’ case is abstract, generalized, symbolic and unrealistic, and that the objectives of the impugned legislation remain ambiguous. The plaintiffs also submit that the two-year cutoff is arbitrary, and was chosen for administrative convenience. Furthermore, the plaintiffs submit that the inmate disqualification operates simply as a form of additional gratuitous punishment, so as to provide comfort to those outside of prison by further stigmatizing inmates as social outcasts disconnected from society.
In R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, at page 335, Dickson C.J. noted that the purpose of legislation “is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable”. Accordingly, in order to determine the objectives of paragraph 51(e) of the CEA, it is necessary to examine, in the context of the broad social and political factors, the impact which the provision has on constitutional rights. In this regard, a number of factors may provide important insight into the defendants’ objectives. Such factors include the jurisprudence surrounding the impugned provision’s predecessor legislation, and the legislative history and legislative text of the present impugned provision.
Prior State of the Law
The previous version of paragraph 51(e) of the CEA provided as follows:
51. The following persons are not qualified to vote at an election and shall not vote at an election:
…
(e) every person undergoing punishment as an inmate in any penal institution for the commission of any offence.
This provision was found to contravene section 3 of the Charter in a judgment pronounced by the Supreme Court of Canada on May 27, 1993: Sauvé v. Canada (Attorney General), supra. In that case, an appeal from a judgment of the Federal Court of Appeal in Belczowski v. Canada, [1992] 2 F.C. 440 affirming [1991] 3 F.C. 151(T.D.), was heard concomitantly with an appeal from a judgment of the Ontario Court of Appeal in Sauvé No. 1, supra.
In Belczowski, supra, the defendants argued that there were three objectives associated with the former version of paragraph 51(e) of the CEA: to affirm and maintain the sanctity of the franchise in our democracy; to preserve the integrity of the voting process; and to sanction offenders. In that case, Hugessen J.A. stated the following, at pages 456-457:
[T]he most striking point about the alleged objectives of paragraph 51(e) is that they are all symbolic and abstract. The appellant admits as much, but maintains that this fact does not prevent them from being legitimate objectives for legislation … For my part, I must say that I have very serious doubts whether a wholly symbolic objective can ever be sufficiently important to justify the taking away of rights which are themselves so important and fundamental as to have been enshrined in our Constitution.
In refusing to accept the alleged objectives, Hugessen J.A. held that there was no evidence to prove that the alleged purposes of paragraph 51(e) of the CEA were the objectives which Parliament had in mind when it adopted the legislation. Moreover, upon a textual analysis, he could not, with confidence, assign any legislative purpose to the provision: Belczowski, supra, at page 454.
In Sauvé No. 1, supra, the Ontario Court of Appeal more or less fully agreed with the reasons contained in Belczowski, supra. Arbour J.A. believed that the most plausible objective for the disenfranchisement of inmates was the sanctioning of offenders. In her view, if the former version of paragraph 51(e) was meant to levy a sanction, the punishment was imposed as a result of imprisonment, and not as a result of the commission of any particular offence. The Ontario Court of Appeal also struck down the provision.
In Sauvé v. Canada (Attorney General), supra, Iacobucci J., speaking for the majority of the Supreme Court of Canada, stated as follows, at pages 439-440:
We are all of the view that these appeals should be dismissed.
The Attorney General of Canada has properly conceded that s. 51(e) of the Canada Elections Act, R.S.C., 1985, c. E-2, contravenes s. 3 of the Canadian Charter of Rights and Freedoms but submits that s. 51(e) is saved under s. 1 of the Charter. We do not agree. In our view, s. 51(e) is drawn too broadly and fails to meet the proportionality test, particularly the minimal impairment component of the test, as expressed in the s. 1 jurisprudence of the Court.
This is the entire decision of the Court. In expressing its view that the previous legislation was drawn too broadly and failed to meet the proportionality test, the Supreme Court of Canada made no comments regarding Parliament’s alleged objectives in denying prisoners the right to vote.
The first objective of paragraph 51(e) of the CEA is the enhancement of civic responsibility and respect for the rule of law. Unlike in Belczowski, supra, the defendants no longer assert that the integrity of the voting process is affected by the provision; rather, as part of their contention, they now assert that one of the effects of the legislation is the removal of untrustworthy votes from the electoral process. This, then, is slightly different from the allegations advanced in Belczowski, supra. In addition, the evidence adduced by the defendants is different from, and considerably more extensive than, that in Belczowski, supra.
The defendants assert that the Federal Court of Appeal in Belczowski, supra, was in error when it held that the predecessor provision failed the first stage of the Oakes test. The defendants claim that the Federal Court of Appeal ignored the broader philosophic and historical development of the right to vote when it considered the legislative objectives: Reference Re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 ([hereinafter] Saskatchewan Boundaries). In that case, the Supreme Court of Canada, at page 181, determined that the “broader philosophy underlying the historical development of the right to vote—a philosophy which is capable of explaining the past and animating the future” must be considered. The Court noted that both the ideal of a free and democratic society, as well as the scope of the right to vote, must be considered when determining whether current qualifications or limitations on that right can be demonstrably justified.
The defendants argue that the Federal Court of Appeal erred when it did not consider Saskatchewan Boundaries, supra. The defendants further assert that the objectives in the previous case were implicitly adopted by the Supreme Court of Canada in Sauvé v. Canada (Attorney General), supra, as the Supreme Court made no adverse comments regarding the objectives; therefore, while stated differently in this case, the objectives should be accepted by this Court. I do not accept this argument since it would be a bold step on my part to infer that the brief reasons of the Supreme Court would support this assertion.
The plaintiffs submit that the defendants’ arguments in the present case do not differ in substance from those in the previous case, wherein the objectives of civic virtue and punishment were rejected. They therefore contend that the Court is bound by the previous decision in Belczowski, supra. In that case, Hugessen J.A. stated the following, at page 459: “[I]t would appear to me that the true objective of [the former] paragraph 51(e) may be to satisfy a widely held stereotype of the prisoner as a no-good, almost sub-human form of life to which all rights should be indiscriminately denied.” I am also of the opinion that I am not bound by Belczowski, supra, as the impugned provision is tailored differently. That is not to say, however, that the approach and rationale of the Federal Court of Appeal are not instructive.
The Legislative History
The plaintiffs argue that, from an historical perspective, Canada’s record on voting rights is not exemplary. Indeed, it could be argued that extensions of the franchise have been motivated by essentially moral principles. In Canada, it is not just prisoners who have experienced a denial of the right to vote. For example, Aboriginal people living on reserves were denied the vote until 1960. While there are other examples of disqualifications of marginalized or disadvantaged people in the past, my review of the legislative history will only deal with the debates and proceedings that gave rise to the enactment of the present version of paragraph 51(e) of the CEA, which deals with prisoners.
In 1993, the CEA was substantially amended by Bill C-114 [An Act to amend the Canada Elections Act, 3rd Sess., 34th Parl., 1993]. However, prior to the enactment of the amended CEA, a Royal Commission on Electoral Reform and Party Financing (the Lortie Commission) was established, in November of 1989, for the purpose of inquiring into the appropriate principles and processes that should govern, inter alia, the election of members of the House of Commons. The Lortie Commission’s Final Report was submitted to Cabinet in November of 1991. The Report was comprehensive and covered numerous topics, including the disqualification of certain groups of voters, among whom were prison inmates.
As is typical of royal commissions, numerous research studies accompanied the Lortie Commission’s recommendations. The prisoner disqualification, in particular, was addressed in an article by P. Landreville and L. Lemonde entitled “Voting Rights for Prisoner Inmates” [in Democratic Rights and Electoral Reform in Canada , Volume 10 of the Research Studies], in which the authors recommended that all prisoners be granted the right to vote. The Lortie Commission did not accept that recommendation; rather, it concluded that persons who had been convicted of an offence punishable by a maximum of life imprisonment, and who had been sentenced to a prison term of ten years or more, should be disqualified from voting during the period of incarceration (Recommendation 1.2.7.). Obviously, Parliamentarians had full access to the research studies, as well as the Final Report of the Royal Commission.
As part of the consideration of Bill C-114, there was also an intensive review by a Special Committee on Electoral Reform. Considerable discussion of the prisoner voting rights issue also took place during the debates of the House of Commons and the Senate.
The Minutes of the Proceedings of the Special Committee on Electoral Reform reveal Parliament’s concern that the courts should defer to Parliament on the issue of the prisoner disqualification. The Special Committee spent a great deal of time trying to determine whether a two-year limit for the disqualification was appropriate, or whether a cutoff of five years, or seven years, or ten years (as recommended by the Lortie Commission) was more justifiable. Eventually, the Special Committee recommended a two-year cutoff since, in their view, serious offenders may be considered to be those individuals who have been sentenced to a term of two years or more in a correctional institution. Generally, that means a federal penitentiary, but not exclusively.
It is evident from the Minutes that members of the Special Committee expressed anxiety over the fact that the most serious offenders could be given the right to vote. In this respect, the objective of enhancing punishment through the disenfranchisement of prisoners was clearly considered by the Committee. For instance, during the discussions of the Committee, it was expressed that there must be some limits on the right to vote, and that punishment encompassed the disenfranchisement of all incarcerated offenders: Minutes of Proceedings and Evidence of the Special Committee on Electoral Reform, Issue No. 12, at pages 12:18-12:19.
The House of Commons Debates reveal the differences of opinion expected when Parliamentarians are dealing with a knotty social policy question. A number of legislators were opposed to any type of disqualification; others were clearly in favour of a disqualification on the basis of the two-year cutoff; others favoured something in between. While the objective of the enhancement of civic responsibility was not expressly addressed in the House of Commons Debates, it was asserted that all Canadians should be made aware of the existence of the inmate voting disqualification, and its imposition as a consequence of a sentence of imprisonment: House of Commons Debates (HOC Debates), Vol. 14, 3rd Sess., 34th Parl., 1993, at pages 18015-18107. These comments imply that the Government intended the prisoner disenfranchisement provision to have an educative effect. Similarly, it was expressed that persons who choose to act against society must suffer the consequences, including the denial of freedom and the loss of privileges which free and responsible citizens enjoy—one of which is the right to vote: HOC Debates, Vol. 14, 3rd Sess., 34th Parl., 1993, at pages 18017-18019. This suggests that one purpose of the impugned provision relates to civic responsibility and respect for the rule of law.
The Senate Debates also reveal the considerable ambivalence which many Senators exhibited toward the continuation of any prisoner disenfranchisement. In addition, the Senate Debates reflect the difficulty which Senators experienced in attempting to determine the appropriate line to be drawn. As might be expected, the Debates do not illuminate the objectives clearly although, as indicated above, there is some glimmer of light.
The Legislative Text
The defendants argue that the stipulated two-year cutoff contained in paragraph 51(e) of the CEA indicates Parliament’s desire to address a category of persons whose conduct was sufficiently offensive that it resulted in a serious period of imprisonment. A report filed by Dr. Colin Meredith provided a statistical breakdown of serious crimes for which federal inmates are imprisoned, as well as the significant cumulative record of most of those federal inmates. As of April 1995, there were 14,179 inmates in federal penitentiaries. The Meredith statistics demonstrate that each of these offenders had committed, on average, 29.5 offences. Indeed, in the present case, an examination of the criminal records of two of the plaintiffs, Richard Sauvé and Aaron Spence, confirms Dr. Meredith’s findings. Mr. Sauvé, for example, was convicted of murder as an aider and abettor. While he committed only one significant offence, he was sentenced to a period of twenty-five years in prison. In contrast, Mr. Spence’s criminal record reveals a history of repeated crimes which eventually led to a four-year term of imprisonment for armed robbery and related offences. Clearly, both individuals engaged in serious criminal conduct, which the courts punished by way of prison sentences of more than two years. Thus, the records of Mr. Sauvé and Mr. Spence also lend support to the defendants’ assertion that prison sentences of two years or more target serious criminals and repeat offenders.
The legislative text of paragraph 51(e) of the CEA makes it clear that the disenfranchisement of offenders relates in obvious ways to the commission of serious criminal acts. At this stage, I am not commenting upon the causes of crime, nor am I reflecting upon the circumstances underpinning particular crimes; rather, consideration is merely being given to the conspicuous relationship between the denial of the right to vote and serious criminal conduct.
The application of paragraph 51(e) is not offender specific. It does not take into account the particular circumstances of the inmate before and after incarceration. It is sentence specific. I am satisfied that sentences of two years or more involve serious crimes that reflect conduct which a court has determined to be sufficiently distasteful to have warranted such a sentence.
In the context of the considerable amount of study and discussion surrounding prisoner disenfranchisement before Bill C-114 was passed, I find a clear concern by Parliament regarding the characteristics of civic responsibility and respect for the rule of law in Canadian society. Furthermore, there is evidence of an intent to punish individuals who commit serious anti-social acts.
Specifically, the legislative text, in conjunction with the proceedings of the Special Committee on Electoral Reform, reveal that the provision is clearly directed at imposing the sanction of disenfranchisement as a further punishment for serious crime. Moral education also appears to be a rationale for this additional sanction. The objective of enhancing civic responsibility through the operation of paragraph 51(e) of the CEA is more elusive. Nevertheless, the Debates of the House of Commons do reveal that some consideration was given to the fact that the impugned provision is capable of sending a message to offenders, and to the general public, about the importance, in a democracy, of the right to vote.
The plaintiffs contend that the message sent by paragraph 51(e) is merely symbolic. In their view, a symbolic message is unable to support objectives which underpin a provision that is violative of a Charter right. Does this mean that a law cannot have a legitimate symbolic function?
In The Sociology of Law: An Introduction (London: Butterworths, 1984), the author, R. Cotterrell, states, at page 108:
In a thoughtful and stimulating book, The Symbols of Government, published in 1935, Thurman Arnold argued that the idea of law as a mechanism of social integration based on the interpretation of societal values can be maintained despite the diversity of individuals’ beliefs and aspirations. In Arnold’s view the proclamation and maintenance of symbols—values, ideals, and ways of thinking about government and society—to which individuals can adhere, is a fundamental task of law by which it contributes to social integration. The special function of development and application of legal doctrine is to create the illusion of unity, coherence and system in thought and belief out of the reality of the irreconcilable diversity, contradiction and opposition of individual and group interests and desires. Thus, for Arnold, law is primarily a way of thinking about government, a reservoir of emotionally important social symbols—of freedom of contract, equality before the law, personal and political liberty, sanctity of property, ‘law and order’, equity and fairness, moral responsibility—many of them mutually inconsistent if applied in practice with the meaning that they possess as symbolic ideals.
At page 110, the author further states:
The idea that law has symbolic functions suggests that the effectiveness of a law does not necessarily depend on whether it can be invoked or enforced.
Of course, at this stage, the Court must examine the objectives of paragraph 51(e) of the CEA; hence, Parliament’s rhetoric is more significant than any prospective evidence relating to the operation of the law or the effectiveness of the law. That discussion will be left to the proportionality analysis.
Accordingly, I find that paragraph 51(e) has, as its twin objectives, those submitted by the defendants.
(b) Pressing and Substantial Objectives
In support of its assertion that the two objectives which paragraph 51(e) of the CEA was designed to achieve are sufficiently pressing and substantial, the defendants rely upon the underlying historical values and principles of traditional liberal democracy, of which respect for the rule of law plays a momentous part. In fact, the defendants submit that the enactment of paragraph 51(e) represents Parliament’s intention to reaffirm Canada’s links with the philosophical and political values which underlie the western liberal democratic tradition, and the penological aims which help to preserve it. A considerable portion of the defendants’ evidence related to the philosophical, political and penological values and goals which liberal democracies, in theory, generally foster.
The defendants argue that the disenfranchisement of prisoners is a well-accepted practice in many liberal democratic societies. However, it is not a universal democratic practice. In Denmark, Sweden, Ireland, Israel and Switzerland, for example, prisoners vote. In Australia, inmates serving sentences of five years or more are disqualified from voting in federal elections. In Greece, prisoners serving life sentences or indefinite sentences are disqualified; otherwise, the matter is left to the discretion of the courts. In France and Spain, disqualification depends on the sentence of the court. In England and Japan, the disqualification is total. In the United States, most states disqualify inmates from the voting process. Some states disenfranchise offenders permanently, while only two states do not disqualify at all.
A similar argument relating to prisoner voting rights in other jurisdictions was raised in Belczowski, supra, before Mr. Justice Strayer [as he then was]. In that case, however, Strayer J. was not persuaded that the existence of corresponding legislation in other jurisdictions could meaningfully assist the Court in its determination. I agree with that position. After surveying examples of foreign law which deal with the issue of voting rights for prisoners, it is difficult to draw any meaningful conclusions as to the reasons why prisoners are disenfranchised in some free and democratic societies, but not in others.
The plaintiffs argue that there is no single, generally accepted theoretical basis for contemporary democracy, and no unified western tradition of political theory. Consequently, the enhancement of civic responsibility should not be a significant objective of public policy. The plaintiffs also assert that a retributive philosophy of punishment invoked by the defendants does not correspond to the empirical realities of present-day Canadian society.
At this stage, attention must be focussed on the democratic ideals which Canada, as a free and democratic society, fosters. There may well be no unified western tradition of political theory, but it is clear from the evidence in this trial that civic and moral responsibility are key components of our liberal democratic traditions. In fact, the preamble to the Charter declares that Canada is founded upon principles that recognize “the rule of law”. The rule of law may be the subject of a number of interpretations, such as a call to law and order, or a legal ordering of social life: J. Rawls, A Theory of Justice (Cambridge, Mass., 1971), at pages 235-243. The ideals of the rule of law express the requirements of legal rules formulated in such a manner as to secure voluntary compliance with the standard of conduct which they set. Of course, while no legal system can expect that all of its laws will be known by the public, it is nevertheless important, as part of the shaping of the voluntary social order, for persons to know in advance what the consequences of their actions might be: E. Colvin, “Criminal Law and The Rule of Law” in Crime, Justice & Codification (Toronto: Carswell, 1986), at page 125.
Paragraph 51(e) of the CEA has a punitive aspect. There is little doubt that retribution is a concept that is not alien to criminal sanctions. Indeed, sentences are invariably partly punitive in nature. As stated by La Forest J. in R. v. Lyons, [1987] 2 S.C.R. 309, at page 329: “In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender.” See also R. v. Goltz , [1991] 3 S.C.R. 485, at page 503.
Accordingly, I find the objectives of paragraph 51(e) of the CEA to be pressing and substantial.
II. Are the means embodied in paragraph 51(e) of the CEA proportional to the objectives and to the effects of the provision?
(a) Rational Connection
The first stage of the proportionality test requires that the means chosen to fulfil the legislative objectives bear a rational connection to those objectives. In RJR-MacDonald Inc., supra, at page 352, Iacobucci J. stated that rational connection “is to be established upon a civil standard, through reason, logic or simply common sense. The existence of scientific proof is simply of probative value in demonstrating this reason, logic or common sense. It is by no means dispositive or determinative.” Similarly, Sopinka J., in R. v. Butler, [1992] 1 S.C.R. 452, at page 502, indicated that “[i]n the face of inconclusive social science evidence … in choosing its mode of intervention, it is sufficient that Parliament had a reasonable basis” (emphasis in original). Sopinka J. also recognized that the government must be afforded a margin of appreciation to form legitimate objectives based upon somewhat inconclusive social science evidence.
In the present case, the causal relationship between the infringement of the right to vote and the legislation’s objectives are not in any way observable, demonstrable, or empirically measurable. The Court must determine, then, whether the evidence establishes that it is reasonable or logical to conclude that there is a rational link between the disqualification and the objectives.
For the most part, the evidence before the Court consisted of expert opinions of a non-empirical nature. However, there was some evidence, provided by Mr. Spence, Mr. Sauvé, and the Meredith report, which suggests that a nexus exists between the impugned provision and criminal conduct. The totality of this evidence, when viewed from the standpoint of reason or common sense, must be sufficient to establish, on the balance of probabilities, a link between disenfranchisement and the objectives advanced by the defendants.
Can it be said, on the basis of logic and common sense, that prisoner disenfranchisement for serious criminal conduct is rationally connected to the goal of enhancing civic responsibility and respect for the rule of law? Regarding civic responsibility, there is no evidence of a nexus other than political and philosophical theory. Regarding respect for the rule of law, it is clear that the members of the federal inmate population have manifestly acted contrary to, and in defiance of, the social order.
The defendants contend that paragraph 51(e) of the CEA deprives certain persons of the right to participate in political decision-making by virtue of having demonstrated disdain for civic responsibility and the rule of law through the commission of serious crimes. By so denouncing this bad conduct, it is contended, Parliament has attempted to connect the right to vote in federal elections with the objective of establishing a minimal standard of civic responsibility.
The defendants urge the Court to adopt an approach as outlined in Saskatchewan Boundaries, supra, which suggests that an analysis under section 3 of the Charter must be animated by a consideration of the scope, including qualifications, of the right to vote in a free and democratic society. Consequently, many of the defendants’ expert witnesses have advanced political, philosophical, and penological arguments explaining why many western liberal democracies have qualified, and continue to constrain, in one manner or another, the prisoner’s right to vote.
Dr. Thomas Pangle, for the defendants, is a political theorist. He is a well-published author and a highly respected academic. He is American by birth, and recently became a naturalized Canadian citizen. Dr. Pangle examined the elements of a free society and a democratic society in order to determine if paragraph 51(e) of the CEA is consistent with theoretical precepts. He relied upon the theories of “the great thinkers” of the past who have provided the framework for discourse concerning human rights, constitutions, republicanism and liberal democratic theory. He is supportive of disenfranchisement as one of the tools capable of promoting a minimal standard of civic responsibility.
Dr. Pangle indicated that the criminal conduct in which offenders have engaged merits their disenfranchisement for three reasons:
In the first place, the criminal behaviour, the serious criminal behaviours for which they’ve been sentenced indicates a clear and flagrant disrespect for the welfare of fellow members of the community and one of the most fundamental aspects of responsible voting is voting with a view to the welfare of the rest of the community. … In the second place, these persons have been convicted of misconduct that indicates not only a disrespect for the law. Now, in a democracy, law means something quite different from what it means in other forms of government. In a democracy, disrespect for law is disrespect for the electoral process which is the original source of the legitimacy of law. The purpose of an election is to select those representatives who make our laws. Therefore, to disrespect the law is to disrespect the goal, and therefore the process, the electoral process that culminates in and finds its fruit in that goal, the law….And then finally in the third place,…it also indicates a disrespect for or a failure to grasp the implicit commitment one makes as a member of the social contract to respect the process and the outcome of the process that creates the laws in a contractual society.
Dr. Pangle emphasized that a conduct driven disqualification, as a minimum standard, is perfectly consistent with the generosity of spirit that pervades a pluralistic democracy, wherein all citizens are free and equal in the eyes of the state. It is not based on status or virtue.
Dr. Christopher Manfredi, for the defendants, is an expert in constitutional and political theory and political philosophy. He is also a well-published author. He is Canadian, but did his graduate studies in the United States. Dr. Manfredi testified that every liberal democracy restricts access to the franchise in order to maintain a connection between the members of the electorate and their communities. In this regard, various restrictions are attached to the right to vote, including citizenship restrictions and age restrictions. In Dr. Manfredi’s opinion, as long as there are no positive prerequisites for voting (as with a literacy test, for example) and the application of disenfranchisement is universal (unlike with age restrictions), then it is not undemocratic to restrict access to the franchise.
Dr. Manfredi testified that there is a rational connection between the inmate voting disqualification and good citizenship which is necessary for the proper functioning of liberal democratic self-government. He contended that serious criminal behaviour is an appropriate indicator that individuals lack the character necessary to ensure that they will exercise their civic responsibility seriously and in a spirit of good citizenship. In this regard, Dr. Manfredi felt that civic virtue referred to the virtues of a liberal democratic citizenship, which relate to factors of empathy and self-control; he did not believe that civic virtue entailed a positive test wherein individuals have to prove, in some way or another, that they are decent and responsible. Moreover, in his opinion, the health of a liberal democracy requires an empathetic and self-controlled citizenry. In his view, it is reasonable to suspend an individual offender’s right to participate in the electoral process until the offender has acquired the characteristic virtues of civic responsibility and good citizenship which are necessary for liberal democratic participation.
In addition, Dr. Manfredi expressed his view that a willingness on the part of individuals to participate in a collective action, such as voting, is determined, to a large extent, by the psychic and social benefits that arise from that activity. According to Dr. Manfredi, there is a logical inference, based on empirical studies, that participation in the voting process can have beneficial effects on the electorate.
The plaintiffs argue that there is no rational connection between the denial of the right to vote in federal elections and the Government’s first objective, since no proof has been offered that the class affected under the impugned provision is coextensive with indecent citizens. The plaintiffs point out that the provision catches many citizens who still deserve the vote because they do not, in fact, lack civic virtue. They argue that many individuals who are disqualified under paragraph 51(e) of the CEA are not manifestly indecent or evil; rather, they are, themselves, the victims of social impoverishment, abusive upbringing, alcoholism, other addictions and diseases, or other social causes of crime, including poverty and illiteracy. For example, as recognized repeatedly by judicial inquiries and other studies, much of the crime committed by Aboriginal people falls into this category.
With respect to this argument, the plaintiffs contend that the Constitution cannot be interpreted in isolation from the society in which it is rooted. In their view, socio-economic background and a lack of opportunities can lead individuals to commit criminal offences. If this fact is denied, according to the plaintiffs, then the reality of the composition of the prison population is ignored.
Additionally, the plaintiffs contend that the impugned provision fails the rational connection test because the disenfranchisement of a minority of sane, adult citizens merely promotes intolerance and stereotyping within society generally, and aggravates the alienation of those who are capable of dealing with it.
Dr. Grant Amyot, for the plaintiffs, is an academic specializing in comparative politics and political theory. Dr. Amyot rejected the view that paragraph 51(e) of the CEA fosters civic virtue in the population as a whole by educating citizens about the standards of civic responsibility. He contended that there was no evidence of any nexus between the disenfranchisement of prisoners and any moral education effects of the law. In fact, he indicated that there was no empirical evidence of any such morally educative effects. Moreover, Dr. Amyot asserted that there was no evidence to demonstrate any connection between responsible citizenry and the disenfranchisement of prisoners. In contrast, he suggested that theorists of participatory democracy, as well as many communitarians in general, would argue that the enfranchisement of prisoners, and not the converse, would contribute to civic virtue and good citizenship by educating the prisoners themselves about these qualities.
Dr. Arthur Schafer, for the plaintiffs, is an academic with expertise in biomedical ethics, jurisprudence, and moral and political philosophy. Professor Schafer strongly disagreed with the prisoner disqualification, suggesting that no rational connection can exist between the legislation and its first objective. In his view, most Canadians are not even aware of the inmate disqualification; accordingly, it can serve no useful purpose.
The plaintiffs are quite correct in asserting a complete lack of empirical evidence to support the defendants’ case regarding the enhancement of civic responsibility. However, this is not determinative of the matter. Rather, the real question is whether or not there exists a rational or common sense basis, as indicated in RJR-MacDonald Inc., supra, upon which it can be said that the disqualification is clearly intended for a person who engaged in a particular type of disagreeable anti-social conduct. In my view, after considering the evidence, I find that there exists a rational connection between disenfranchisement and enhancement of civic responsibility and respect for the rule of law.
While most laws are symbolic and carry messages to society, not all laws seek to alter human behaviour. The criminal law is one example of a law that does attempt to shape a voluntary social order. In the same sense, I think it can be said that paragraph 51(e) of the CEA was intended to have a similar effect. It is reasonable to suggest that the provision sends a very strong message that certain forms of criminal behaviour are not acceptable in a society that is both free and democratic. I find the morally educative function of the law to be compelling. While this education may have little or no effect on the offender, it nevertheless sends a powerful message to society that good citizenship and serious crimes are inconsistent with liberal democratic principles.
No doubt it is true that many individuals who have committed crimes are not prosecuted, and are therefore not sentenced to prison. There are cruel antisocial offenders who slip through the system; however, the fact that the “few pay for the many” is not a basis for failing to recognize the nexus between the legislation and its first objective. Accordingly, paragraph 51(e) of the CEA is rationally connected to the defendants’ objective of enhancing civic responsibility and respect for the rule of law.
The defendants argue that the disenfranchisement of prisoners is also connected to, and supportive of, the general purposes of the criminal sanction, in so far as such a deprivation has a potentially retributive, denunciatory, and morally educative role. The defendants argue that retribution is not the same as vengeance or revenge; rather, it operates as a proportionate response to wrongdoers who have committed crimes against individuals, and against society generally. Indeed, an examination of the evidence of Mr. Sauvé and Mr. Spence clearly indicates that they both perceive the deprivation as a loss of something valuable.
According to Dr. Manfredi, the principle of just deserts or proportionate punishments is imposed primarily to express society’s moral condemnation of criminal acts. Dr. Manfredi contrasted the retrospective nature of the just deserts approach with the prospective nature of other sanctions, including incapacitation, deterrents (both general and specific), and rehabilitative sanctions which seek to change the character and behaviour of criminal offenders. In his opinion, the disqualification is a means of expressing society’s abhorrence of a breach of the social contract.
Dr. Jean Hampton, for the defendants, is an American citizen who was educated in the United States. As an academic, she has published numerous articles on subjects relating to moral, political and legal philosophy. Dr. Hampton addressed the relationships among the expressive aspects of retribution, denunciation, and the moral education theory of punishment. She is a firm proponent of the theory of punishment. In her opinion, the health and well-being of any free and democratic state must be preserved, in part, by punishment, which, due to moral indignation, requires a suspension, or perhaps a revocation of rights. In Dr. Hampton’s view, the most important aspect of a retributive punishment is its victim based response to wrongdoing. She submitted that punishment must attempt to provide individuals with moral reasons for choosing not to commit crimes. This forms part of the moral education theory of punishment.
Dr. Ernest Van den Haag, for the defendants, has a multifaceted background and may simply be described as an “intellectual”. He specializes in law, sociology, and psychology. Dr. Van den Haag focussed on the various purposes of punishment. He opined that “to give the vote to incarcerated criminals is inconsistent with the moral, denunciatory, and educational purposes of punishment—perhaps its most important purpose.” In this regard, he felt that the disqualification aims to have an educative effect upon the general public by symbolizing the moral wrongness of the criminal act, and by symbolically excluding the offender from the community’s affairs.
Dr. Seymour Lipset, for the defendants, is a respected American academic who is well-known in Canada, and who has published extensively. Dr. Lipset compared the political and legal cultures of Canada and the United States. He concluded that paragraph 51(e) of the CEA denounces a violation of the social contract and reflects a communitarian ethos whereby communal rights can temper individual liberties. Dr. Lipset described Canada as being statist and communitarian, but claimed that the United States is anti-statist and laissez-faire. In his view, however, the Charter is beginning to change the balance between rights and responsibilities in Canada.
Professor Schafer, for the plaintiffs, was of the view that there are practical difficulties in applying the doctrine of retributivism to a society in which there exist substantial inequalities of opportunity, both socially and economically. With respect to the defendants’ assertion of a moral education theory of punishment, Professor Schafer argued that it is not charitable or reasonable to resort to retributive punishment in the face of society’s failure to provide a healthy, nurturing environment for so many of its minority and/or disadvantaged citizens.
The plaintiffs advanced a number of arguments under rational connection which, I believe, are more relevant to the proportionate effects analysis which appears later in these reasons.
While there is no empirical evidence to suggest that the disenfranchisement of prisoners reduces crime (either generally or specifically), or serves a morally educative function, or could operate as an effective punitive sanction, I find that a rational connection exists between the impugned provision and the stated objective of enhancing the criminal sanction. As an aid to punishment, the provision clearly imposes a sanction, and denounces bad conduct. In the present case, the sanction takes the form of a disenfranchisement, in addition to the loss of liberty. A fundamental democratic right has been removed for crimes committed, and its removal is clearly felt as a deprivation by Mr. Sauvé and Mr. Spence. It is also reasonable to conclude that a morally educative message is sent to offenders, and possibly to the general population, by the imposition of a sanction. Of course, the message may not be heard or understood, but that does not diminish the connection between the means and the second objective.
(b) Minimal Impairment
The Government must demonstrate that the impairment of rights is minimal, i.e., that the law was carefully tailored so that Charter rights are impaired no more than necessary. As McLachlin J. stated, in RJR-MacDonald Inc., supra, at pages 342-343:
[T]he tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement …. On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail. [Emphasis added.]
Thus, Parliament need not adopt the absolutely least intrusive means of attaining its objectives: R. v. Laba, [1994] 3 S.C.R. 965, at page 1009.
In Sauvé v. Canada (Attorney General), supra, the Supreme Court of Canada held that the previous version of paragraph 51(e) of the CEA was overbroad and failed the minimal impairment part of the proportionality test. In light of the amendments to paragraph 51(e), has Parliament succeeded in enacting a provision which is justified under section 1 of the Charter?
The defendants assert that the impugned provision impairs the right to vote as little as possible. The defendants argue that there are inherent safeguards in the present legislation, as the two-year cutoff will ensure that only serious offenders will be disqualified from voting. Moreover, the defendants submit that the right to vote remains intact and that it is only suspended temporarily, i.e., during the period of incarceration. The defendants further note that the suspension applies only to those citizens who have been sentenced to a term of imprisonment of two years or more; it is therefore not an all-encompassing, overreaching prohibition or denial. It is also restored automatically, without process, upon release from the correctional institution.
The defendants observe that only 37% of offenders who had been committed to federal institutions between 1989 and 1990 would have been disenfranchised in the 1993 federal election. Moreover, almost half of those inmates will be released from their current sentence before the next federal election. Hence, the defendants submit that the legislation is sufficiently tailored to ensure that the right to vote is minimally impaired.
The defendants argue that the disqualification satisfies the two conditions of a positive test and universal application required to justify a limitation in a liberal and democratic society. Of course, that may be a condition precedent to legislative action, but it does not necessarily satisfy the need to examine further whether the right to vote is only minimally impaired. In this regard, it is contended that paragraph 51(e) of the CEA is not arbitrary, as the denial relates directly to the sentence imposed, which flows directly from the commission of criminal offences, i.e., the bad conduct. The defendants therefore submit that this is a pristine policy choice to which the Court should defer. In their view, the provision is not overbroad because longer prison terms are imposed upon persons with negative character traits. Since the legislation relates to the nature of their crimes, it is precise in its application. The defendants contend that imprisonment, in and of itself, is not the reason for the disqualification; rather, the sentence of imprisonment is an indication of the gravity and extent of the harmful criminal conduct.
As a final matter, the defendants also note that, while there is temporary loss of the vote, it does not mean a loss of the right to representation. The defendants rely upon certain comments of McLachlin J. in Saskatchewan Boundaries, supra, wherein she said, at page 183, that “[r]epresentation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one’s grievances and concerns to the attention of one’s government representative.” The defendants contend that this stands for the proposition that offenders who lose the right to vote do not necessarily lose the right to representation. I do not accept this reference as authority for such an argument. In my view, Justice McLachlin is discussing the concept of a representative democracy in which persons are elected in a representative capacity through direct participation of the electorate in the electoral process.
The plaintiffs argue that paragraph 51(e) of the CEA fails the minimal impairment test because it is arbitrary in its application. It flows, it is contended, from the sentence rather than from the facts and circumstances which give rise to a particular criminal offence. It is further submitted that only two types of disqualification could survive the minimal impairment test: case-by-case disqualification at the time of sentencing, or a disqualification based on conviction for treason or high treason, as set out in sections 46-48 of the Criminal Code [R.S.C., 1985, c. C-46].
Similarly, the plaintiffs contend that the impugned provision fails the minimal impairment test because there are less intrusive means by which the government could attain its stated objectives. These include the denial of the right to vote at the discretion of the sentencing judge; the Lortie Commission’s recommendation which targeted the most serious offences (those punishable by life imprisonment) and the most serious sentences (those punishable by ten years or more); an offence-oriented approach which would define the specific types of crimes which could be seen as bearing a rational connection to the franchise; and a law which allows for restoration of the right to vote as a result of good behaviour while in prison.
The plaintiffs further assert that a prisoner who has been sentenced to a period of imprisonment of two years or more is completely denied the right to vote if a federal election is held during a term of imprisonment. In this regard, they contend that the denial may be seen as a complete ban during the period of a prisoner’s incarceration. The defendants view the disqualification as a temporary suspension of the Charter-protected right, while the plaintiffs see the denial as a permanent loss of the right to vote. However, what must be considered is the impact of the disqualification on individual offenders. It is clear that, for any particular federal election, those inmates who fit within paragraph 51(e) of the CEA are completely denied the right to vote.
As I indicated above, the Lortie Commission recommended that disenfranchisement occur where an offender has been convicted of a crime for which he could potentially receive a punishment of life imprisonment, and for which he did receive a sentence of ten years or more in prison. It is clear that Parliament considered this recommendation and rejected it. Parliament also considered a five-year cutoff and a seven-year cutoff, and rejected both. Furthermore, Parliament considered the voting rights of prisoners in other democratic countries. Eventually, Parliament settled on a two-year cutoff for disqualification. According to the defendants, this limitation allows Parliament to ensure that only those who have committed serious crimes are denied the right to vote.
In this context, the statistics filed by Dr. Colin Meredith demonstrate that, of 654 inmates sampled, who represented 4.5% of the total federal inmate population, there was an average number of 29.5 convictions per inmate. Moreover, 75.3% of the inmates sampled had more than ten convictions during their criminal careers. The Meredith analysis did not find any statistically significant difference between Aboriginal and non-Aboriginal inmates. The statistics do verify that the federal inmate population consists of individuals with long histories of involvement in serious criminal activities. Thus, these statistics appear to support Parliament’s choice for selecting two years as the cutoff for the disqualification of individual offenders who have exhibited bad criminal conduct.
Parliament must have some latitude to choose alternatives. It is for this reason that I reject the plaintiffs’ argument regarding the other alternatives. There is one exception. In this respect, it must be recognized that a final option was available to Parliament: the disenfranchisement of each offender could be imposed on a case-by-case basis, by the sentencing judge. In this way, the disenfranchisement would not be automatic; rather, the right to vote would only be removed by a judge who, as part of the sentencing process, has determined that, in the personal circumstances of the accused, disenfranchisement should occur: R. v. Goltz, supra.
The legislative history of paragraph 51(e) of the CEA displays virtually no consideration of a court based process where disqualification is considered as part of sentencing. What the legislative history does reveal, in somewhat vague terms, is an apparent desire to keep the matter out of the courts. In the House of Commons Debates, some reference was made to the issue of whether or not a criminal like Clifford Olsen should be permitted to vote. With disqualification on a case-by-case basis, a clearly indecent and immoral offender like Clifford Olsen could, as a consequence, be disenfranchised by sentence of the court.
At trial, Dr. Pangle was asked whether the removal of the right to vote by the courts, as in a number of countries, would satisfy his requirements in terms of liberal democratic theory. While he did not vigorously disagree that it would, he preferred the legislative ban over a court imposed disqualification. In his opinion, if the courts become involved in the disenfranchisement of prisoners, no clear minimum standard would exist or be applied. He was also concerned with the lack of judicial knowledge regarding political theory, and questioned whether judges could perform the task satisfactorily. Dr. Pangle also expressed the view that the educational message would be less clear. Of course, an analysis of minimal impairment involves a consideration of the legislation’s breadth of application. This generally relates to the precision of the legislation’s application, not the clarity of its objectives. On the other hand, Dr. Pangle, in another comment, indicated his view that an independent judiciary is the guardian of the rule of law against majority oppression or factionalism.
Dr. Pangle is quite correct in his concerns regarding sentencing discretion and the fact that sentences” including the nature, type, or quantity of sanctions” could vary considerably from judge to judge. Needless to say, appellate review has an important role to play in determining the “fitness of a sentence”. Any possible and unwarranted disparity in sentencing with respect to disenfranchisement, however, could be lessened by providing legislative criteria.
The courts now play a pivotal role in sentencing. The Canadian Sentencing Commission, in Sentencing Reform: A Canadian Approach (Ottawa, Ont., 1987), did contemplate a comprehensive reform of sentencing laws and practices in Canada. The Commission defined sentencing as the “judicial determination of a legal sanction to be imposed on a person found guilty of an offence.” This definition is not particularly controversial. The disqualification at issue in this trial currently involves no sentencing process whatsoever.
As I shall discuss later, prisoner disenfranchisement is not well-known or visible in Canada. Certainly, any contemplated reform of the law, if pursued, could take this obvious consideration into account. The communication of sanctions to the public is the only obvious way for them to be effective. No doubt, minimizing disparity is an important goal, and perhaps only legal specialists can find their way through the maze of judge-made law; nevertheless, the public has a greater chance of being informed of the prisoner disenfranchisement through a court imposed disqualification, rather than under the current scheme.
The defendants’ experts have provided a number of thoughtful and compelling arguments supporting disenfranchisement. If Parliament decides to pass another law, there is no reason why these arguments could not inform the criteria that could be selected. A sentencing judge could take into account the nature of the crime and the personal circumstances of the accused in conjunction with the principles of sentencing: R. v. Goltz, supra. This process would, in my opinion, be a significantly less intrusive, and equally effective means of infringing a citizen’s democratic right to vote. If a judge is entrusted with the responsibility of taking away a person’s liberty, should he or she not also be charged with the responsibility of determining if disenfranchisement is warranted?
Indecency exists in society generally, and is not only found in correctional institutions. The law as it now stands cannot distinguish the type of offender whose indecency is so profound as to threaten the principles of our free and democratic society. As such, I find that paragraph 51(e) of the CEA fails the minimal impairment component of the Oakes test.
(c) Proportionate Effects
Despite finding that paragraph 51(e) of the CEA fails the minimal impairment test, I believe it is also important to consider the provision’s proportionate effects. The effects of the limiting measure must not so severely trench on Charter rights that the legislative objective, albeit important, is outweighed by the infringement of rights. Essentially, then, the proportionate effects test requires that the deleterious effects of the measure be proportionate to the attainment of its legislative objectives: R. v. Oakes, supra, at pages 138-140; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; and McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at pages 281-286. In the rational connection analysis, the court must compare the means to the objectives, in order to assess if Parliament acted reasonably. In contrast, when considering proportionate effects, the court balances the objectives with the actual effects of the impugned provision.
The proportionate effects test has recently been restated and modified by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. In that case, Lamer C.J. held that the conventional Oakes analysis is appropriate where a measure fully, or nearly fully, realizes its legislative objective. However, according to Lamer C.J., at page 889, where a measure only partially achieves its legislative objective, the proportionality requirements are as follows:
[T]here must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures. [Emphasis in original.]
At pages 887-888, the Chief Justice explained the rationale behind this reformulation of the proportionate effects test:
In many instances, the imposition of a measure will result in the full, or nearly full, realization of the legislative objective. In these situations, the third step of the proportionality test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective. At other times, however, the measure at issue, while rationally connected to an important objective, will result in only the partial achievement of this object. In such cases, I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms. A legislative objective may be pressing and substantial, the means chosen may be rationally connected to that objective, and less rights-impairing alternatives may not be available. Nonetheless, even if the importance of the objective itself (when viewed in the abstract) outweighs the deleterious effects on protected rights, it is still possible that the actual salutary effects of the legislation will not be sufficient to justify these negative effects. [Emphasis in original and added.]
The Supreme Court of Canada appears to have applied this reformulated test in RJR-MacDonald Inc., supra, and in Thibaudeau v. Canada, [1995] 2 S.C.R. 627.
The reformulation of the proportionate effects test appears to necessitate a consideration of the actual salutary effects when assessing proportionality. In certain cases then, if there is a lack of proportionality between the deleterious effects and the actual salutary effects of the impugned law, the law cannot be justified under section 1 of the Charter. As such, in a case where partial achievement of the objective is found, the proportionate effects assessment becomes vital and is no way redundant with respect to the first step, i.e., whether pressing and substantial objectives exist.
It appears, then, that the Chief Justice in Dagenais, supra, was suggesting that a legislative provision which infringes a Charter right or freedom, and yet does not fully accomplish the objectives it was designed to achieve, may be less likely to produce salutary effects which are proportionate to the deleterious effects generated by the measure. It is not sufficient in such a case to merely balance the legislation’s desired objectives against the deleterious effects produced by the provision, as the legislation’s salutary effects do not fully correspond to the results which were expected to be produced.
In the present case, the defendants agree that I must examine proportionate effects in light of the reformulation in Dagenais, supra. I must look beyond the theoretical objectives of the impugned measure, and consider what salutary effects, if any, have been produced by the provision. The defendants admit that the actual salutary effects of the measure are unascertainable. In fact, there is no evidence, other than theory, to suggest that paragraph 51(e) of the CEA has even partially attained the objectives which it was designed to achieve.
The defendants contend that a prison sentence of two years or more is indicative of bad conduct. They also assert that the principal negative effects of the impugned provision are merely two-fold: a democratic right is infringed, and a disenfranchised inmate is left feeling isolated from his community.
Most of the defendants’ experts appeared to agree that paragraph 51(e) of the CEA would have little or no effect on the prisoner. Dr. Pangle seemed to think it might have a weak rehabilitative effect; Dr. Manfredi felt there might be a general deterrent effect. While Dr. Van den Haag, as a conservative criminologist, supported general deterence, he suggested that greater punishment is necessary even if the effects are not measurable.
According to Dr. Pangle, one function of the prisoner voting suspension is the regulation of potentially untrustworthy votes. However, he noted that the principle long-term benefit to society is that the disqualification can provide an important morally educative function. In this regard, he focussed on the electorate as a whole, rather than the individual offender. Dr. Pangle asserted that the disqualification de-emphasized the tendency to promote and advance individual rights. While he viewed these as noble and worthwhile endeavours, he asserted that they neglect or obscure the responsibilities and duties which attend those rights in a free and democratic society.
Dr. Pangle is an eminent scholar who presented his evidence in an extremely thoughtful and credible manner. Nevertheless, it is clear that he only recently began consideration of the relationship between prisoners and the franchise. In addition, his thorough research on the matter only led to one footnote reference by John Stuart Mill. Furthermore, despite being an eminent political theorist, and, until recently, an American citizen, Dr. Pangle was unaware of the status of prisoner voting rights in the United States. He thought that most prisoners vote in the United States, and claimed that this is one factor that has led to social disintegration and a loss of a sense of community. In fact, the opposite is true. Most American prisoners do not vote; thus, if there is moral and social deterioration, disenfranchisement cannot be a cause. Dr. Pangle was also concerned with untrustworthy votes, and submitted that individuals should not vote if they lack the requisite capacity. However, he was unaware of the fact that the 1993 amendments to the Canada Elections Act removed the disqualification for those who are mentally challenged.
Dr. Manfredi addressed the costs of disenfranchisement, and found them to be small. He indicated that, in most cases, prisoners will only be excluded from voting in one federal election. He also minimized the prisoner’s loss of the vote by asserting that prisoners are otherwise represented in political matters by advocacy groups, and retain access to counsel and the judicial system.
Dr. Manfredi emphasized at least two benefits associated with the prisoner disqualification. Firstly, the disqualification serves the collective goal of promoting lawful behaviour, i.e., the sanction performs a moral norm-setting function for the public in general. Secondly, prisoner disenfranchisement encourages political participation. In Dr. Manfredi’s opinion, the collective action problem could be solved by compulsory voting, and could reinforce a view that participation in the electoral process is, indeed, a mark of good citizenship. The disenfranchisement of prisoners can therefore make voting less irrational and less threatening to the viability of a liberal democracy.
The plaintiffs argue that there can be no proportionality between the deleterious effects of paragraph 51(e) of the CEA and its objectives and salutary effects, given the absence of any proof whatsoever that there are any salutary effects. It is submitted that the objectives identified by the defendants are abstract, whereas the effects of the impugned provision are concrete and fundamental to the individuals involved. The loss of voting rights is particularly grave, in the plaintiffs’ view, because the disenfranchised class is a group which lacks power in society, and therefore has difficulty making itself heard in the political and social arenas. The plaintiffs also emphasize that all inmates were allowed to vote in the 1992 federal Referendum, and can presently vote in provincial elections in four provinces; yet, no negative effects have been shown to arise from the participation of inmates in these elections.
The plaintiffs contend that other deleterious effects of paragraph 51(e) of the CEA include stigmatization, loss of rehabilitative opportunity, promotion of a message of inequality, and the characterization of our society as being intolerant and fearful of the less advantaged. It is also argued that there is no evidence that knowledge of the disqualification is widespread; thus, the plaintiffs question the alleged denunciatory, morally educative, and potentially rehabilitative effects of the legislation. In contrast, it is submitted that there is absolutely no cost to society as a whole, nor to any specific group in society, if the right to vote is granted to prisoners.
Dr. Amyot noted that the defendants could not refer to any direct effect on the outcome of the voting process which would be produced if prisoners were enfranchised. He further indicated that the impact on the overall quality of Canadian democracy would be trivial, as inmates comprise a relatively insignificant proportion of the overall voting population. Dr. Amyot disagreed that there was any evidence to support the theory of morally educative effects, or that disqualification would produce a psychological incentive for others to vote. In contrast, he referred to a number of empirical studies on voter turnout, and noted that none considered the disenfranchisement of prisoners to be a factor explaining levels of voter participation.
In Professor Schafer’s view, the denial of the right to vote can be seen as a removal of one of the prisoner’s links to the community. Professor Schafer referred to the principle, favoured by liberal criminologists, that prisoners are sent to jail as punishment, and not for punishment. In this regard, while noting Dr. Van den Haag’s assertion that there was no evidence that the enfranchisement of prisoners would contribute to their rehabilitation, Professor Schafer contended that there was evidence to suggest that prison inmates who are given greater control over their lives during incarceration exhibit increased independence and self-control upon release. Thus, in Professor Schafer’s opinion, the exercise of civic responsibilities, including participation in the electoral process, has a potentially educative effect in the area of civic virtue, and should represent one of the main reasons why prisoners should not be disenfranchised. While Professor Schafer advocated punishment, he fundamentally believes in a person’s capacity to change his own behaviour.
Applying a common sense approach, Professor Schafer asserted that it was unlikely that a potential serious offender, who was not deterred from committing an offence by the knowledge that he could spend two or more years in prison, would be deterred by the knowledge that he would also temporarily lose the right to vote. Moreover, Professor Schafer disagreed with Dr. Van den Haag’s claim that incarceration is insufficient, in itself, to stigmatize the offender and denounce his criminal conduct, but that the disenfranchisement, as an additional stigma, will better ensure the safety of the social order. According to Professor Schafer, this claim is even less plausible in the face of the general lack of awareness of the disenfranchising provision.
Professor Neil Boyd, a witness for the plaintiffs, is Director of the School of Criminology at Simon Fraser University in British Columbia. He is also a lawyer, and has published extensively. Professor Boyd rejected the argument that the deprivation of the prisoner’s right to vote will have a salutary effect by deterring the commission of crimes, as there was no evidence that retention of the right to vote will adversely affect the extent and nature of crime in the community. Indeed, Professor Boyd suggested that there is evidence that federal prisoners who become involved in political processes, such as inquiries, often benefit substantially from their participation. Thus, Professor Boyd concluded that the disqualification provides neither specific nor general deterrence. Moreover, there appears to be a greater possibility of a morally educative benefit flowing from the enfranchisement of prisoners. Professor Boyd described the disenfranchisement of prisoners as a “kind of knee jerk reaction that might fall within the retributive sphere”, and claimed that it is consistent with the public’s attitude that prisoners should have fewer rights. He also agreed that social denunciation may be valid, but not by the denial of a democratic right.
Mr. Eric Andersen was also called by the plaintiffs. He is a citizen of Denmark, and has been employed in the prison system there for thirty-seven years. For many of those years, he was a prison warden. Mr. Andersen indicated that prisoners have voted in Denmark since 1970 without any negative effects in that society. In his view, it is enormously beneficial to allow prisoners to keep their civil rights, including the right to vote. Similarly, he indicated that a denial of such liberties would make the rehabilitation of offenders much more difficult.
Professor Michael Jackson, a witness for the plaintiffs, is a well-known Canadian law professor. He has written extensively about the criminal justice system, with a particular emphasis on Aboriginal people and prison issues. In his testimony, Professor Jackson was concerned with the overrepresentation of Aboriginal people in Canada’s correctional facilities. He attributed the problem of Aboriginal overrepresentation to systemic discrimination, in both the criminal justice system and society in general. He highlighted the disproportionately high rates of Aboriginal poverty, unemployment, and other social and economic disadvantages as being contributors to the overrepresentation of Aboriginal people in Canadian prisons.
Professor Jackson considered the deleterious effects of paragraph 51(e) of the CEA in the historical and political context of both the franchise and Aboriginal people. He noted that the franchise in federal elections was only returned to the Aboriginal people in 1960, after seventy-five years of disenfranchisement. Similarly, the Inuit people were disenfranchised in 1935; their voting rights were not restored until 1950. Professor Jackson concluded that, for Aboriginal people in federal penitentiaries, the right to vote is still being denied today as a result of systemic discrimination on the basis of race.
The overrepresentation of Aboriginal people in prisons was seen by Professor Jackson to be the clearest example of the relationship between socio-economic status and imprisonment. In this regard, Professor Jackson also noted a similar connection between crime and class for other disadvantaged groups in society, including the unemployed, the illiterate, the poor, the homeless, and those from broken homes or unstable families. He contended that the exercise of the prisoner’s right to vote in a federal election would promote citizenship skills and encourage responsible behaviour. He indicated that prisons do contain some evil people, but stated that not all inmates are evil. Nevertheless, Professor Jackson strongly suggested that the inmate disqualification cannot distinguish between the two types of prisoners.
In Canada, prisoners in both provincial and federal institutions may vote in provincial general elections in Manitoba, Ontario, Quebec, and Newfoundland. In Quebec, all prisoners have been eligible to vote in provincial elections since 1981. In British Columbia, a new Election Act [S.B.C. 1995, c. 51], which came into force on September 1, 1995, parallels the federal law. Based on the figure of 14,955 federal prisoners in Canada on April 30, 1995, provided at trial, approximately 56% of these were entitled to vote in provincial elections. Interestingly, in Quebec, the participation rate for inmates in the three most recent provincial elections has been approximately 74%.
The defendants were unable to adduce any evidence of harm flowing from the exercise of prisoner voting rights in provincial elections or in the 1992 Referendum. Indeed, the defendants could not advance any meaningful arguments to justify the mixed messages which Canadian society is receiving from the conflicting federal and provincial policies relating to prisoner voting rights. The defendants did suggest, however, that the federal government has a national norm-setting function.
The defendants were also unable to demonstrate any negative impact upon other democratic societies where prisoner voting is freely or partially allowed. While it may not be possible for the defendants to adduce such evidence, it is striking that Mr. Andersen did not allude to any costs, to offenders or to society in general, resulting from the enfranchisement of prisoners. Indeed, Mr. Andersen was generally of the opinion that it is better to hold individuals to a higher standard, rather than a lower standard, of responsibility.
Democracies have struggled for many years to achieve a truly universal franchise. In Canada, we have almost attained that goal. With the reform of the Canada Elections Act, in 1993, several groups, including judges, persons restrained by reason of mental disease, and inmates serving sentences of less than two years, have been enfranchised. What remains is the disqualification of approximately 14,955 inmates, almost 2,000 of whom are Aboriginals.
While this case is not about the causes of crime, the plaintiffs argue that the defendants’ approach to disenfranchisement ignores the entire socio-economic dimension of crime. The defendants, as well as the defendants’ witnesses, recognize, in minimal terms, the relationship between society and crime; however, the defendants submit that the role which society plays in influencing criminal behaviour is secondary to the voluntary choice to engage in crime, made by an individual who displays a bad character, a lack of empathy, and/or a lack of self-control. The defendants have chosen to focus on a sentence of the court as being the marker which attracts the disqualification. In the defendant’s view, the more complex problems of criminal behaviour that may be associated with abuse, despair, poverty, illiteracy, learning disabilities, or drug/alcohol addiction, are not, in any way, relevant.
As I have already found at almost every step in these reasons, the evidence clearly indicates that prisoner disqualification is not well-known in Canadian society. Indeed, in the Government of Canada’s publication, The Charter of Rights and Freedoms: A Guide for Canadians (Ottawa, Ont., 1982), the following is stated, at page 6, in regard to section 3 of the Charter:
The tradition of democratic rights in Canada is specifically guaranteed by the Charter. Citizens will have a constitutionally enshrined right to vote in elections for members of the House of Commons or a legislative assembly and to seek election to either of those houses.
The only restrictions that may be placed on your right to vote or run in an election will be those that are considered to be reasonable and justified, such as the age restriction for minors, mental incompetence, and certain restrictions on some election of officials, such as returning officers, who may have to cast a deciding ballot. In the case of seeking elective office there may be some restrictions on judges because of the non-partisan nature of their office. [Emphasis added.]
At the time of this publication, no prisoner could vote federally; nevertheless, conspicuously, there is no reference whatsoever to the disenfranchisement of prisoners. Paragraph 51(e) of the CEA has a very low visibility. Despite the litigation in this area throughout the past decade, Dr. Pangle was unaware of the decisions involving prisoner voting rights.
In the present case, the parties could not refer to any Canadian source, other than the case law, in which the issue of prisoner disenfranchisement has been discussed. I have reviewed two recent texts on criminal law and sentencing: C. Ruby, Sentencing, 4th ed. (Toronto: Butterworths, 1994), and D. Stuart, Canadian Criminal Law: A Treatise, 3rd ed. (Toronto: Carswell, 1995). Not surprisingly, neither author considers the issue of the disenfranchisement of inmates. I mention this not to criticize their excellent contributions; rather, I believe that this is typical of the attention that Canadians, including legal scholars, have given to the question of prisoner disenfranchisement.
In Sentencing, supra, at page 1, Mr. Ruby considers the causes of crime in the following manner:
It is evident to all thinking practitioners of law that the causes of crime and their solutions lie not in the legal system but in society itself.
Professor Stuart states the issue somewhat differently, at pages 54-55 of Canadian Criminal Law: A Treatise, supra:
Even if an acceptable typology of conduct is arrived at, most researchers now agree that any attempt to seek a mono-causal theory is doomed to failure and that the best we can do is to suggest that there are a host of predisposing factors—biological, psychological and sociological.
…
Yet even the most sophisticated research has produced very pessimistic results, particularly if we are concerned with the acid test: the rate of recidivism (re-conviction). Different forms of punishment or treatment seem equally ineffective, even if we compare such markedly different punishments as long-term and short-term prison sentences, probation and institutional punishments, and authoritarian institutions and therapeutic communities. The greatest hope is with the first offenders, but it does not seem to matter what the disposition is.
Professor Stuart goes on to state, at page 58:
However we live in law and order times. There are widespread calls for toughening the criminal law, especially as it relates to violence, and voices favouring restraint have been drowned out. Instead there are pleas for “zero tolerance” and concern that criminals have too many rights at the expense of victims…. There are no votes in being soft on crime.
Professor Stuart then suggests that the truths of criminology are limited and that there are no clear explanations, definitions, or answers.
The intellectual debate among moral philosophers over the nature and purposes of punishment normally does not enter into the practical business of sentencing: Ruby, supra, at page 1; rather, sentencing aims and principles seem to have a somewhat more pragmatic focus. Indeed, there may be strong philosophic and political reasons to support the disenfranchisement of prisoners; however, there appear to be few practical reasons for doing so. Undoubtedly, the various purposes of sentencing are generally considered to be general deterrence, specific deterrence, protection of the public (incapacitation), rehabilitation, and retribution. Professor Stuart, supra, at page 60, describes the first four of these aims as being “utilitarian in the sense that they seek to provide a benefit to society which outweighs its disadvantage”. In contrast, at page 60, retribution is said to have a moral basis, which justifies punishment, irrespective of its benefits, solely by relating the punishment to the crime:
Most would distinguish the retributive aim from vegeance [sic] and would distinguish as straddling the moral and utilitarian classifications, the denunciatory theory which sees punishment as an emphatic denunciation by the community of a particular offence.
Thus, retribution is a more offender-specific aim of sentencing.
While an all-embracing characterization of the defendants’ case might be presumptuous, the defendants have advanced, as part of the goal of enhancement of the criminal sanction, the view that retribution should play a greater role in the sentencing process. In particular, from Dr. Van den Haag’s perspective, retribution should be given greater prominence, given the fact that deterrence and rehabilitation appear futile. Dr. Van den Haag did admit, though, that he has little knowledge of criminal justice policy in Canada.
Retribution is, in fact, one of the defendants’ main justifications for the disenfranchisement of prisoners. In this context, however, the Canadian Sentencing Commission, in Sentencing Reform: A Canadian Approach, supra, noted as follows, at page 114:
More directly, the rediscovery of retributivism is essentially the outcome of a thorough study of incarceration in the United States and it has resulted in a narrow theory of criminal justice which links the sentencing process to the imposition of custodial sentences and to punishment. In fact, all three reports cited in section 3.3 of this chapter were studies of incarceration. These studies of imprisonment were as profound as their focus was limited. When we are urged to collapse sentencing and punishing, one into the other, the type of sentence on which the whole argument implicitly rests is a jail term, which, save for capital punishment, is the most punitive sentence in use.
Thus, the Canadian Sentencing Commission downplays the role of retribution in the Canadian justice system. Furthermore, the debate on crime in the United States is different from that in Canada.
Sentencing policy and corrections policy, while they represent different stages of the criminal justice system, must have a number of common goals. Sentencing is by its nature coercive and involuntary. However, sections 3 and 4 of the Corrections and Conditional Release Act (the CCRA), S.C. 1992, c. 20, states as follows:
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
…
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
…
(h) that correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements; [Emphasis added.]
Also, sections 5 and 76 state:
5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for
…
(b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;
…
76. The Service shall provide a range of programs designed to address the needs of offenders and contribute to their successful reintegration into the community. [Emphasis added.]
Clearly, corrections policy emphasizes the rehabilitation of the offender, and his reintegration into the community. While the defendants argue that disenfranchisement can contribute to rehabilitation, I prefer the plaintiffs’ evidence which suggests that paragraph 51(e) of the CEA hinders the rehabilitation of offenders and their successful reintegration into the community. The provision only serves to further alienate prisoners from the community to which they must return, and in which their families live. Accordingly, the retributive effects of paragraph 51(e) are deleterious in that they are contrary to the purpose and principles contained in the CCRA.
At page 141 of Sentencing Reform: A Canadian Approach, supra, the Canadian Sentencing Commission notes as follows:
Since it stresses the obligation to punish persons guilty of a crime, retributivism is oriented more towards past blameworthy behaviour than towards the consequences of punishment in the future. Thus, as was stressed in section 1.1, retributivism provides a moral ground for imposing sanctions rather than a purpose which they can strive to achieve (although it can be violated, a moral ground is not, properly speaking, something that can be “achieved” with various degrees of success). It is therefore problematic to treat retribution as a goal and to estimate to what extent it is achieved. However, such an appraisal would require us to note that, strictly understood, retributivism implies that a sanction ought to be imposed upon all offenders. As we know that only a small percentage of offenders is brought to justice, it follows immediately that the criminal justice system fails to a very large extent to achieve what is implied by retributivism. [Emphasis added.]
Nevertheless, while the retributive aim of punishment is likely to be increasingly stressed in the courts, the principles of sentencing in Canada include more than just retribution: R. v. Goltz, supra.
Of course, in this context, the complexity is great, and a sentencing judge is given the enormous responsibility of knowing when to impose a sentence which not only has a retributive effect, but which also emphasizes rehabilitation. According to Mr. Ruby, supra, at page 4, sentencing in Canada entails a strange liaison between both the moral and utilitarian views of democracy. However, this is not surprising since the courts must determine whether the sanctions will be effective for the purposes claimed, and for each specific offender. In other words, there is an important difference between theory and reality.
Interestingly, both Mr. Ruby and Professor Stuart emphasize that the criminal law is concerned with the protection of property and its abhorrence of physical violence; yet, our criminal law does not appear to emphasize other serious kinds of harm that are prevalent in Canadian society. Indeed, both authors, as well as the plaintiffs, reflect upon certain types of white-collar crime, including price fixing and misleading advertising under the Competition Act [R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19)], income tax evasion, and other corporate crimes. In essence, Mr. Ruby, supra, at page 1, notes that these crimes are “lightly penalized”. In that regard, I believe the author to mean that serious prison terms are rare for these types of white-collar crimes. Similarly, the plaintiffs assert that a class bias is created against the poor and illiterate who are marginalized, and who are more likely to be given a sentence of imprisonment.
As indicated previously, the potential salutary effects which could be generated through the operation of paragraph 51(e) of the CEA are not ascertainable. However, I must, nevertheless, determine, on a common sense basis, whether any salutary effects could be produced by the disqualification, even if the actual effects which are produced are not conducive to measurement.
It is clear that paragraph 51(e) of the CEA produces a number of deleterious effects through its operation. I accept the plaintiffs’ evidence that the provision generates in some, if not all prisoners, a feeling of isolation from the community. In losing one more link to society, through the denial of the right to vote, their subsequent reintegration into the community is likely to be impeded. After all, most offenders will return to society. The disqualification also prevents them from experiencing any form of rehabilitative influence which could otherwise be felt through participation in the democratic electoral process.
As well, there is evidence to suggest that there have been no negative costs to society if prisoners are granted the right to vote. The four provinces in which prisoners participate in provincial elections appear not to be adversely affected. It does not seem that any harmful impact on free and democratic principles has resulted. Similarly, the participation of inmates in the 1992 Referendum appears to have gone unnoticed.
It has been contended that the salutary effects of paragraph 51(e) of the CEA include the promotion of law-abiding conduct, respect for the rule of law, and a sense of duty, as well as the facilitation of the inmate’s reintegration into the community. However, the pervasive lack of awareness of the provision suggests that the disqualification is actually incapable of producing any such salutary effects.
It is not reasonable to suggest that a potential prisoner would be less likely to commit a crime in the face of knowledge that he could lose the right to vote if he were found guilty of an offence, and sentenced to a term of imprisonment of two years or more. Similarly, it does not make sense to suggest that crime in general will be curbed through a widespread awareness of the potential disenfranchisement of offenders. As Dr. Van den Haag indicated, the moral dimension of punishment is its main dimension; yet, in his view, individuals obey the law not because of a fear of punishment, but rather because it is wrong or immoral to do that which the law prohibits. It may be comforting to the value systems of law-abiding citizens to know that prisoners will receive greater punishment. However, the salutary effects upon which the defendants rely are tenuous in the face of the denial of the democratic right to vote, and are insufficient to meet the civil standard of proof.
In my opinion, the proportionality between the effects of the impugned legislation and its objectives, and the proportionality between its salutary effects and its deleterious effects, are not satisfied. Accordingly, paragraph 51(e) of the CEA infringes section 3 of the Charter, and is not justified under section 1 of the Charter.
Section 15 of the Charter: Equality Rights
Having found that paragraph 51(e) of the CEA infringes section 3 of the Charter, and is not saved by section 1, it is unnecessary for me to consider the section 15 case. However, I will, by way of obiter, make a few comments regarding section 15.
The plaintiffs argue that there is a clear prima facie breach of subsection 15(1) of the Charter. They submit that paragraph 51(e) of the CEA deprives a class of persons of a valuable legal right which amounts to a denial of equality and the equal benefit of the law. The plaintiffs assert that prisoners under the impugned provision are a disadvantaged class analogous to the groups enumerated in the Charter, because they are burdened and limited by a law based on the personal characteristic of incarceration. It is argued that prisoners have been shown to be a disadvantaged group which is lacking in political power, and which is vulnerable to having its interests overlooked. It is further submitted that, in light of the history of punishment in Canada, the racial and socio-economic composition of federal prison populations, and the obvious exclusion and powerlessness faced by prisoners, inmates in federal correctional institutions constitute a “discrete and insular minority” deserving of protection under subsection 15(1) of the Charter.
The plaintiffs note, however, that they are confining their section 15 argument to electoral rights, and claim that federal prisoners are not necessarily an analogous group for all purposes. It is not contended that prisoners should be treated as a minority with regard to treatment that is directly relevant to prison management; rather, it is contended that, with respect to political rights irrelevant to prison management, prisoners should be considered as a minority group within the meaning of section 15 of the Charter.
Alternatively, the plaintiffs base their argument on systemic discrimination as a form of adverse impact discrimination. They assert that the impugned provision impacts upon disadvantaged and Aboriginal people disproportionately when compared with the general population, due to the overrepresentation of these two groups within the prison population. In particular, the plaintiffs submit that there is evidence of systemic discrimination against Aboriginal people in the Canadian justice system, and that this has led to an overrepresentation of Aboriginals in the prison population. They argue, therefore, that the proportion of Aboriginal people negatively affected by paragraph 51(e) of the CEA is greater than is warranted in light of their numbers in the general Canadian population. On this basis, it is argued that the impact of the inmate voting disqualification falls disproportionately upon Aboriginal people. Thus, the plaintiffs argue that the disqualification causes discrimination on the basis of social condition—an analogous ground under subsection 15(1) of the Charter—and on the basis of race—an enumerated category under subsection 15(1).
In response, the defendants submit that prisoners, as a class, are not an analogous group for the purposes of section 15 of the Charter. The defendants rely upon the trial decisions in Belczowski, supra, and Jackson v. Joyceville Penitentiary, [1990] 3 F.C. 55(T.D.), in support of this assertion. Furthermore, the defendants submit that the fact that Aboriginal people may be overrepresented in the prison population is irrelevant for the purposes of the present section 15 analysis. The defendants reason that, if prisoners as a class are not an analogous group under section 15 of the Charter, then a sub-group of prisoners, such as Aboriginal inmates, cannot constitute an analogous group. According to the defendants, what distinguishes prisoners, as a class, from other groups in society is their serious criminal behaviour.
Regarding adverse impact discrimination, the defendants submit that the mere existence of a disparate impact of paragraph 51(e) of the CEA, upon Aboriginal people, is not determinative for the purposes of section 15 of the Charter. Following the approach in Symes v. Canada, [1993] 4 S.C.R. 695, the defendants argue that any adverse impact of the impugned provision upon Aboriginal people does not flow from the provision itself. The defendants argue that the plaintiffs must do more than merely establish an adverse impact; they must demonstrate that the adverse effect is caused, or contributed to, by the impugned provision. However, the defendants submit that no such evidence exists in the present case.
The first step in a section 15 Charter analysis requires the Court to determine whether, due to a distinction created by the impugned law, there has been a denial of an equality right. At this stage, the Court should consider whether the challenged law has drawn a distinction between the claimant and others, based upon personal characteristics: Egan v. Canada, [1995] 2 S.C.R. 513, at page 584.
As stated by Iacobucci J. in Egan, supra, at page 584, “Not every distinction produced by legislation gives rise to discrimination”. Therefore, the second step in the section 15 analysis requires the Court to determine whether the distinction results in discrimination. At this stage, the Court must examine whether the impugned legislation imposes, on a group of persons to which the plaintiffs belong, a burden, obligation, or disadvantage which is not imposed on others, or fails to provide them with a benefit which it grants to others. This also requires an assessment of whether or not the distinction is based on an irrelevant personal characteristic which is enumerated in subsection 15(1) of the Charter, or is analogous thereto.
As indicated by Iacobucci J. in Egan, supra, at pages 586-587, “[d]irect discrimination involves a law, rule or practice which on its face discriminates on a prohibited ground. Adverse effect discrimination occurs when a law, rule or practice is facially neutral, but has a disproportionate impact on a group because of a particular characteristic of that group.” In an adverse effects analysis, the source of the disparate impact is critical. The Court must determine whether the impact flows from the impugned provision itself, or whether it relates to some pre-existing or independent condition. This point was addressed by Iacobucci J. in Symes, supra, wherein he indicated that the Court must take care to distinguish between effects which are wholly caused, or contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision.
In the present case, paragraph 51(e) of the CEA clearly imposes a burden on certain prison inmates by disqualifying them from the federal electoral process. In this way, the law takes away from them a benefit which it grants to others. The group directly affected by this burden or disadvantage is that class of prison inmates who have been sentenced to a term of imprisonment of two years or more.
Prisoners, as a class, have generally not been viewed as an analogous group under section 15 of the Charter. In Jackson v. Joyceville Penitentiary, supra, at pages 111-113, MacKay J. held that prisoners were not an analogous group under section 15. In that case, the Court considered section 41 of the Penitentiary Service Regulations [C.R.C., c. 1251 (as am. by SOR/80-462, s. 1)], which provided for differential treatment of prison inmates as compared with other individuals in Canada. Justice MacKay found that the impugned provision did not discriminate against prison inmates on the basis of any analogous grounds. In fact, he indicated that section 15 was not even engaged in that case, as the difference in treatment of prison inmates as a group arose not from their personal characteristics, but from past courses of conduct which amounted to crimes against society. Similarly, Strayer J., in Belczowski, supra, held that section 15 of the Charter was not engaged by the former version of paragraph 51(e) of the CEA.
Consequently, a subpopulation of all prison inmates—namely, those who have been sentenced to a term of imprisonment of two years or more—does not constitute a group which is analogous to those enumerated in section 15 of the Charter. In fact, this group does not comprise a class of persons who may be distinguished from others on the basis of an irrelevant personal characteristic that is enumerated in subsection 15(1) of the Charter, or is analogous thereto. Accordingly, there is no direct discrimination on the basis of an enumerated or analogous ground under section 15.
With respect to the possibility that paragraph 51(e) of the CEA produces adverse effects which are discriminatory in nature, the focus must shift from a consideration of prisoners as being the targeted group, to one where poor or Aboriginal inmates comprise the disadvantaged group. The plaintiffs argue that systemic discrimination has resulted in an overrepresentation of the poor and Aboriginal people in the Canadian inmate population. The evidence appears to support the fact of this overrepresentation. As a result, the plaintiffs contend that paragraph 51(e) of the CEA impacts upon the poor and Aboriginal people disproportionately. It is therefore argued that the provision results in adverse effect discrimination on the bases of both social condition and race.
In the present case, paragraph 51(e) of the CEA takes away the right to vote from all prisoners who have been sentenced to a term of imprisonment of two years or more. Every inmate to whom the provision applies is affected in the same manner: his right to vote is temporarily suspended. All disenfranchised inmates suffer from this burden to the same degree. Those inmates who are poor, or who are Aboriginals, are not in any way more greatly impacted than are other disenfranchised inmates.
The plaintiffs are correct that a disproportionate number of poor or Aboriginal inmates will lose the right to vote as a result of the operation of paragraph 51(e) of the CEA. However, a finding of adverse effect discrimination does not depend upon the size of the group in question; rather, it depends upon the severity of a provision’s impact on a particular group. For example, while more Aboriginal inmates may be losing the right to vote as a result of paragraph 51(e) of the CEA, they are not suffering more greatly than are inmates from other groups in society.
Accordingly, although the impugned provision may operate in such a way that it targets more members from the poor and Aboriginal inmate groups, it does not operate more harshly in relation to these two groups. Consequently, it cannot be said that the provision treats those inmates who come from these backgrounds in a more burdensome manner than it does other prisoners. It is the effect of the impugned provision which must be considered in an adverse effects analysis, and not the extent of its application. Overrepresentation does not in any way result from the impugned provision.
I conclude that paragraph 51(e) does not infringe section 15 of the Charter. However, paragraph 51(e) does infringe section 3 of the Charter and is not saved by section 1.
I wish to thank all counsel for their efforts in this trial and to compliment them with respect to the quality and thoroughness of their submissions.