[1997] 3 F.C. 628
T-2257-93
Richard Sauvé (Respondent) (Plaintiff)
v.
The Chief Electoral Officer of Canada, the Solicitor General of Canada, the Attorney General of Canada (Applicants) (Defendants)
and
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 Belanger, Emile A. Bear and Randy Opoonechaw (Respondents) (Plaintiffs)
v.
The Attorney General of Canada (Applicant) (Defendant)
Indexed as: Sauvé v. Canada (Chief Electoral Officer) (T.D.)*
Trial Division, Wetston J.—Ottawa, May 15; Toronto, May 16, 1997.
Practice — Judgments and orders — Stay of execution — Application to stay, pending appeal, effect of declaration Canada Elections Act provision denying certain convicts right to vote in federal elections unconstitutional — S.C.C. decision in RJR—McDonald Inc. applied — Balance of inconvenience not favouring applicants.
Constitutional law — Charter of rights — Democratic rights — Application to stay effect of declaration Canada Elections Act provision denying certain convicts right to vote in federal elections violating Charter, s. 3 — Crown not meeting onus of establishing irreparable harm to public interest — Public interest also including protection of democratic rights enshrined in Charter.
Elections — Application to stay, pending appeal, effect of F.C.T.D. judgment declaring Canada Elections Act, s. 51(e) (prohibiting certain convicts from voting in federal elections) in violation of Charter, s. 3 — Appeal would not be heard prior to next general election — Crown not meeting onus of establishing irreparable harm to public interest.
After a trial of the action, reported at ([1996] 1 F.C. 857, this Court declared paragraph 51(e) of the Canada Elections Act (prohibiting prisoners serving more than two years from voting in a federal election) to be in violation of section 3 of the Charter. This was an application to stay that decision pending the outcome of an appeal, the hearing of which would not likely take place prior to a federal election to be held on June 2, 1997.
Held, the motion should be dismissed.
The principles to be considered in deciding whether or not a stay is to be granted in cases where the constitutionality of legislation is in issue have been determined by the Supreme Court of Canada in RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. It adopted the tripartite test established in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.) (serious question, irreparable harm and balance of inconvenience).
First, there was clearly a serious question to be tried. The fact that granting the stay would essentially grant the applicants the remedy sought in the appeal would not justify a consideration of the merits and should not be considered at this stage, but under the weighing of balance of convenience.
At to the second part of the text, irreparable harm, the burden is on the Crown. The legislation already having been held unconstitutional, the Crown does not benefit from an assumption of irreparable harm. Public interest, however, as an aspect of irreparable harm, may be demonstrated at a lower standard. But it was in the discretion of the Court to determine at this stage whether the alleged harm to the public interest was sufficient in the context of the case to satisfy stage two. The benefit of the assumption of irreparable harm to public interest does not arise in all cases. To interpret this test otherwise would effectively mean that the applicants would obtain the full extent of the relief sought despite the fact that this Court has declared paragraph 51(e) of the Canada Elections Act to be unconstitutional. A greater amount of discretion is granted to the motions judge where the alleged harm itself takes the form of a breach of a right protected by the Charter, as it does here. The Crown filed no evidence in support of this application for a stay, but only an affidavit stating that, at trial, the objectives of the impugned legislation were found to be pressing and substantial for the enhancement of civic responsibility, respect for the rule of law and the enhancement of the general purposes of the criminal sanction. The Crown has not discharged the burden of establishing irreparable harm.
Third, the balance of inconvenience was in favour of the respondents. The public interest, which the federal government is charged with the duty of promoting and protecting, must also include the protection of democratic rights (including the fundamental right to vote in a free and democratic society) enshrined in the Charter. In this case, the respondents could not be compensated for the denial of their right to vote in the upcoming federal election. A consideration of the short-term impact of a stay is an important consideration when the Court is faced with the decision to stay an order in which a law has been declared to be contrary to the Charter. The Crown did not argue that there was any administrative burden that could not be met to allow prisoners to vote. Furthermore, no motion for a stay of the order declaring the law to be unconstitutional was made prior to the holding of two federal by-elections. Prisoners voted therein, as well as in the 1992 Constitutional referendum, and prisoner voting is allowed in four provinces, yet no evidence was led to prove that any negative effects have been shown to arise from the participation of the inmates in those elections. There was no evidence presented, therefore, that any harm occurred to the public interest or that public confidence in the rule of law was in any way affected by those occasions in which prisoners voted.
Considering the nature of the relief sought, the harm which the parties contend they would suffer and the denial of a democratic right under the Charter, the balance of inconvenience did not favour the applicants.
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], s. 3.
Federal Court Rules, C.R.C., c. 663, R. 341A (as enacted by SOR/79-57, s. 8).
Special Voting Rules, R.S.C., 1985, c. E-2, Sch. II.
CASES JUDICIALLY CONSIDERED
APPLIED:
RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 54 C.P.R. (3d) 114; 164 N.R. 1; 60 Q.A.C. 241; American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.); 143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339; (1994), 61 Q.A.C. 81; 90 C.C.C. (3d) 1; 31 C.R. (4th) 120; 167 N.R. 321; Attorney General of Canada v. Gould, [1984] 1 F.C. 1133; (1984), 13 D.L.R. (4th) 485; 42 C.R. (3d) 88; 54 N.R. 232 (C.A.); affd [1984] 2 S.C.R. 124; (1984), 13 D.L.R. (4th) 485; 42 C.R. (3d) 88; 53 N.R. 394; Schreiber v. Canada (Attorney General), [1996] 3 F.C. 947 (1996), 96 DTC 6493; 118 F.T.R. 231 (T.D.).
DISTINGUISHED:
Thibaudeau v. M.N.R., [1994] 2 F.C. 189 (1994), 114 D.L.R. (4th) 261; 21 C.R.R. (2d) 35; [1994] 2 C.T.C. 4; 94 DTC 6230; 167 N.R. 161; 3 R.F.L. (4th) 153 (C.A.); affd [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; 182 N.R. 1; 12 R.F.L. (4th) 1.
MOTION to stay a decision of this Court ([1996] 1 F.C. 857 (1995), 132 D.L.R. (4th) 136; 106 F.T.R. 241) declaring paragraph 51(e) of the Canada Elections Act to be in violation of section 3 of the Charter. Motion dismissed.
COUNSEL:
Fergus J. O’Connor for respondent Sauvé (plaintiff).
Arne Peltz for respondents McCorrister et al. (plaintiffs).
Gerald L. Chartier, Glenn D. Joyal for applicants (defendants).
SOLICITORS:
O’Connor and Napier, Kingston, Ontario, for respondent Sauvé (plaintiff).
Arne Peltz, Public Interest Law Centre, Legal Aid Manitoba, Winnipeg, for respondents McCorrister et al. (plaintiffs).
Deputy Attorney General of Canada for applicants (defendants).
The following are the reasons for order rendered in English by
Wetston J.: This is a motion to stay a decision of this Court [[1996] 1 F.C. 857 which declared paragraph 51(e) of the Canada Elections Act, R.S.C., 1985, c. E-2 (as am. by S.C. 1993, c. 19, s. 23), to be in violation of section 3 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. At the request of the parties, this motion was heard by myself on an urgent basis.
Paragraph 51(e) of the Canada Elections Act prohibits prisoners serving more than two years from voting in a federal election. The decision that paragraph 51(e) was unconstitutional was made after a lengthy trial in this Court. On January 19, 1996, the Crown appealed the decision of December 27, 1995, to the Federal Court of Appeal. The Crown took no steps after the appeal was filed to stay the effect of this Court’s earlier decision. As a result, prisoners were entitled to vote in 7 by-elections which occurred on March 25, 1996, and June 17, 1996, after the application for appeal was filed. The applicants have not expedited the hearing of the appeal before the Federal Court of Appeal and it is unlikely that it will be heard before the federal election (June 2, 1997).
On April 23, 1997, the Crown filed this motion, in anticipation of a federal election call, to stay the effect of the decision of this Court pending the outcome of the appeal. On April 27, 1997, the federal government announced a federal election to be held on June 2, 1997. Steps were then taken to prepare for prisoners’ voting day, pursuant to Special Voting Rules [R.S.C., 1985, c. E-2, Sch. II], set for May 23, 1997.
Rule 341A [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/79-57, s. 8)] grants this Court the discretionary authority to suspend the operation of any judgment of the Court pending an appeal. The principles to be considered in deciding whether or not a stay is to be granted in such a case have been determined by the Supreme Court of Canada in RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. In that case, the applicant, RJR—MacDonald, applied to the Supreme Court of Canada for a suspension of the legal effects of regulations pending the ultimate hearing before the Supreme Court regarding the constitutionality of the enabling legislation. The Supreme Court of Canada indicated, at pages 333-334, that in such a case a careful balancing process must be undertaken:
On one hand, courts must be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect.
On the other hand, the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter rights. Such a practice would undermine the spirit and purpose of the Charter and might encourage a government to prolong unduly final resolution of the dispute.
I am guided by these introductory remarks in my consideration of whether a stay should be granted in this case.
In RJR—MacDonald, supra, at page 347, the Supreme Court reviewed the factors to be considered on an application for a stay in a Charter case. The Court adopted the three-part American Cyanamid Co. v. Ethicon Ltd. [[1975] A.C. 396 (H.L.)] test to be applied for stays in both private law and Charter cases. This tripartite test is well-known. At the first stage, an applicant must demonstrate a serious question to be tried. At the second stage, the applicant must convince the Court that it will suffer irreparable harm if the relief is not granted. At the third stage, the applicant is required to demonstrate that the balance of inconvenience is in its favour. In this regard, the Supreme Court was careful to note that the requirement to assess the balance of inconvenience will often determine the result in applications involving Charter rights.
Serious Question to be Tried
In considering the tripartite test as set out in RJR—MacDonald, supra, I am of the opinion that there is a serious issue in this matter. The Supreme Court has stated that it is not the role of the motions judge to consider the merits of the case to be heard and that, particularly in Charter cases, it is a low threshold to meet at this stage: RJR—MacDonald, supra, at page 337. It is also important to note that the Court outlined two exceptions to this principle. The first exception applies where the interlocutory motion will in effect amount to a final determination of the action. The second applies where the question of constitutionality is one which is a simple question of law alone and the motions judge may be able to dispose of the case.
In the case at bar, granting the stay would essentially grant the applicants the remedy sought in the appeal; that is, it would deny prisoners the right to vote in the federal election. While I do not believe that this would justify a consideration of the merits of the case under the exceptions set out above, I do believe that it is an issue which should be considered under the weighing of balance of inconvenience.
Irreparable Harm
The second stage of the tripartite test requires that the applicant establish that irreparable harm would occur if the stay was not granted. The test for irreparable harm has been described as follows in RJR—MacDonald, supra, at page 341:
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicant’s [sic] own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
The applicants in this case are public authorities and, as such, it should be noted that the type of harm claimed will necessarily be different from that of a private applicant. In RJR—MacDonald, supra, it was stated, at page 346:
In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.
In RJR—MacDonald, supra, the public authority was the respondent and not the applicant, as in this case. The Court defined the test for a public authority acting as an applicant as follows, at page 349:
We would add to this brief summary that, as a general rule, the same principles would apply when a government authority is the applicant in a motion for interlocutory relief. However, the issue of public interest, as an aspect of irreparable harm to the interests of the government, will be considered in the second stage. It will again be considered in the third stage when harm to the applicant is balanced with harm to the respondent including any harm to the public interest established by the latter.
It is clear from the above that as an applicant the Crown bears the burden of establishing irreparable harm at stage two of the test. I do not accept the Crown’s submission that the two stages are collapsed into one consideration under balance of inconvenience. I interpret this passage to mean that where the Crown is the applicant, and by implication the legislation has already been found to be unconstitutional, they do not benefit from an assumption of irreparable harm at stage two. However, public interest, as an aspect of irreparable harm, may be demonstrated at a lower standard. It is, nonetheless, in the discretion of the Court, to determine at this stage whether the alleged harm to the public interest, as an aspect of irreparable harm, is sufficient in the context of the case to satisfy stage two.
This interpretation is supported by the comments of the majority of Supreme Court of Canada in 143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339, at page 385:
In RJR—MacDonald, supra, it was held that the onus of demonstrating harm to the public interest is a relatively low one for government authorities opposing interlocutory orders. [Emphasis added.]
The Supreme Court relied on the passage from RJR—MacDonald, supra, at page 346, with added emphasis on the phrase “nearly always” and “in most cases”. In other words, the benefit of the assumption of irreparable harm to public interest, in satisfying stage two, does not arise in all cases.
To interpret this test otherwise would effectively mean that the applicants would obtain the full extent of the relief sought despite the fact that this Court has declared paragraph 51(e) of the Canada Elections Act to be unconstitutional. This is contrary to the principle discussed earlier that a party should not be allowed to achieve the ultimate remedy by means of an interlocutory motion. In this regard, I have considered the decision of Attorney General of Canada v. Gould, [1984] 1 F.C. 1133 (C.A.); affd [1984] 2 S.C.R. 124. To grant the relief requested by the applicants, in this case, would effectively mean that, despite the declaration of invalidity of paragraph 51(e) by this Court after a full trial of the action and prior to the Court of Appeal having considered this matter, that prisoners would have their right to vote suspended in the upcoming election. In my opinion, this runs contrary to the principles outlined in Gould, supra.
Finally, with respect to the matter of irreparable harm, it may be worthwhile to consider one further passage from the Supreme Court of Canada in 143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339, wherein La Forest J. (in dissent) stated, at page 359:
However, a monetary remedy is not always contemplated in cases where the Charter is invoked. This results from the nature of the rights it guarantees and of the parties. That is why the Court held that in most situations the existence of irreparable harm must be presumed. But when the alleged harm itself takes the form of a breach of a right protected by the Charter, as it does here, the judge who has the responsibility for ruling on the merits of the interlocutory motion is in the best position to determine its nature and extent and whether it is irreparable.
The Crown filed no evidence in support of this application for a stay. The only affidavit that was filed was that of Mr. Henderson who stated that the objectives of paragraph 51(e) of the Canada Elections Act were found to be pressing and substantial at the trial of this action and were as follows:
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.
The Crown relies upon this finding for its submission that there would be irreparable harm to the public interest if the stay is not granted.
The Crown argued that if they do not have the benefit of the assumption as described in RJR— MacDonald, supra, then it would be virtually impossible for the Crown to ever obtain a stay. I do not believe that this is the case. Even if the Crown does not have the benefit of the assumption of irreparable harm in satisfying the second stage in all cases, it is still open to the Crown to lead evidence of harm. That was the case in both Schreiber v. Canada (Attorney General), [1996] 3 F.C. 947(T.D.); and 143471 Canada Inc. v. Quebec (Attorney General), supra, in which the Crown led evidence regarding the public harm that would be suffered in the period pending the appeal if the stay was not granted. Furthermore, the Crown may also establish that, on balance, the public interest outweighs any harm to the respondents at the third stage.
The Crown submitted that stages two and three ought to be considered together and did not argue irreparable harm as a separate issue under stage two. For the above reasons, and the fact that the Crown provided no other evidence as to irreparable harm, in the context of the denial of a democratic right, I conclude that the Crown has not met its onus at this stage. In the event that I am wrong, I will, nonetheless, consider the issue of harm to the public interest, as submitted by the Crown, under stage three, balance of inconvenience.
Balance of Inconvenience
In weighing the balance of inconvenience between the parties, the factors to be considered are as follows, RJR—MacDonald, supra, at page 350:
Among the factors which must be considered in order to determine whether the granting or withholding of interlocutory relief would occasion greater inconvenience are the nature of the relief sought and of the harm which the parties contend they will suffer, the nature of the legislation which is under attack, and where the public interest lies.
In addition, the Crown submits that once the minimal requirements are met regarding irreparable harm to the public interest (which in their opinion is deemed to exist), in the absence of strong evidence of a sufficiently weighty public benefit arising from the refusal of the stay, the balance of convenience favours the public authority.
The relief sought in this case is the application of a legislative provision which has been found to be unconstitutional. The respondents argue that, while the consequences of the loss of the right to vote are considerable, the specific harm to the respondents is the denial of a democratic right. They submit that, should the respondents not be able to vote in the upcoming election, that harm is irreparable. They argue that the harm in this case is even more serious because the respondents were excluded from the last general election in 1993 under paragraph 51(e) of the Act. They were also denied the right to vote in 1988 under the previous provisions even though that disqualification was subsequently struck down by the Supreme Court of Canada.
With respect to the issue of public interest, the government alone does not have a monopoly. It was stated in RJR—MacDonald, supra, at page 344:
It is, we think, appropriate that it be open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. “Public interest” includes both the concerns of society generally and the particular interests of identifiable groups.
In the case at bar, I have no doubt that the federal government is charged with the duty of promoting and protecting the public interest. The question is what is the public interest in this case? The applicants argue that the public interest should be found in the two pressing and substantial objectives that this legislation was found to have at trial; namely, the enhancement of civic responsibility and respect for the rule of law and the enhancement of the general purposes of criminal sanctions.
In my opinion, the public interest in this type of case must be considered more broadly than in the manner advocated by the applicants. I accept the applicants’ submission regarding the pressing and substantial objectives of the government in passing the legislation: however, the public interest must also include the protection of democratic rights enshrined in the Charter. What could be more fundamental than the right to vote in a free and democratic society? In defining public interest, therefore, consideration must be given not only to the pressing and substantial objectives noted above, but also to the protection of rights guaranteed under the Charter.
In this case, can it be said that the denial of the franchise which has been declared unconstitutional by this Court is consistent with the government’s role in protecting Charter rights? There may be circumstances in which a court would delay or stay the effects of an unconstitutional ruling and on several occasions the Supreme Court of Canada has done just that. For example, the Crown referred to the case of Thibaudeau v. M.N.R., [1994] 2 F.C. 189(C.A.); affd [1995] 2 S.C.R. 627, as authority for the proposition that a declaration of unconstitutionality could be stayed pending an appeal. I would note that Thibaudeau is different from this case in several ways. In the first place, while the law had been found to violate section 15 of the Charter, the harm which would be suffered if the legislation was enforced was monetary and could be compensated in damages if the finding was upheld on appeal. In this case, the respondents cannot be compensated for the denial of their right to vote in the upcoming federal election. Furthermore, no reasons were given by the Supreme Court of Canada in allowing the stay in Thibaudeau.
As part of the argument in this case, the respondents referred the Court to the decision of Schreiber v. Canada (Attorney General), supra, at page 954, wherein Gibson J., on a motion for a stay of a constitutional decision of this Court, noted that the “short term context of a period, pending disposition of an appeal “was the relevant period to address in a motion for a stay. In Schreiber there was affidavit evidence before Gibson J. upon which he determined that the short term interference with international criminal investigations was sufficient harm to justify a stay.
I am of the opinion that a consideration of the short term impact of a stay pending an appeal is an important consideration when the Court is faced with the decision to stay an order in which a law has been declared to be contrary to the Charter. This is particularly the case on a motion for a stay where the longer term implications of declaring a provision invalid rests with the judge who has the responsibility during the trial. Similarly, that responsibility should rest with the Federal Court of Appeal and ultimately with the Supreme Court of Canada in considering the appeals on the merits.
In this case, the respondents argue that at best the Crown’s case is one in which, over the long term, prisoner voting may erode the respect for the rule of law and undermine the criminal law sanction. Counsel for the respondents noted that evidence during the trial by one of the experts called by the Crown was to the effect that the more general development of the loss of responsibilities and duties attendant upon rights, of which prisoner voting is merely one example, would take place only after the passage of several decades and maybe even generations.
In weighing the balance of inconvenience, I note that the Crown only argued that irreparable harm, in this case, would be harm to the public interest. While this is of significance, the Crown did not argue that there was any administrative burden that could not be met to allow prisoners to vote, nor did they seriously argue that the vote of 14 000 prisoners disseminated throughout various ridings in Canada could affect the overall outcome of the election. In fact, everything is in place at this time for prisoners to vote. Posters have been placed in prisons advising them of the upcoming voting and steps have been taken to put the machinery for voting in place.
During 1996, after the filing of the Crown’s notice of appeal in this matter, there were seven by-elections held under the Canada Elections Act. No motion for a stay of the order declaring the law to be unconstitutional was made by the Crown prior to the holding of either the March 25 or the June 17, 1996, federal by-elections. As such, prisoners voted in those by-elections. The Crown distinguished voting in a by-election from voting in a federal election because, in the latter, citizens are voting for their government. In a by-election they are voting for individual members of parliament. For the purposes of determining harm to the public interest, I am not persuaded by this distinction submitted by the Crown.
Counsel for the respondents further argued that all inmates were allowed to vote in the 1992 Constitutional referendum and prisoner voting is allowed in four provinces, yet no evidence was led to prove that any negative effects have been shown to arise from the participation of the inmates in those elections. There was no evidence presented, therefore, that any harm occurred to the public interest or that public confidence in the rule of law was in any way affected by those occasions in which prisoners voted.
Based on the evidence before me, and in weighing the public interest concerns as between the parties, I am not satisfied that in the short term the fact that prisoners might vote in the upcoming election, pending the decision in the Federal Court of Appeal, would amount to irreparable harm to the public interest. In considering the nature of the relief sought, the harm which the parties contend they would suffer and the denial of a democratic right under the Charter, I am not persuaded that, in this case, the balance of inconvenience favours the applicants.
Accordingly, the motion for a stay shall be dismissed and the respondents shall have their costs.