A-1033-84
Attorney General of Canada and Solicitor General
of Canada (Appellants)
v.
Robert Gould (Respondent)
Court of Appeal, Thurlow C.J., Mahoney and
Marceau JJ.—Ottawa, August 30 and 31, 1984.
Judicial review — Equitable remedies — Injunctions —
Appeal against interlocutory mandatory injunction enabling
prison inmate to vote in federal election — Inmate suing for
declaration Elections Act s. 14(4)(e) contrary to Charter s. 3
Decision affecting every prisoner in Canada — Not conven
tional injunction application involving balance of convenience
as between parties only — Proper purpose of injunction to
preserve status quo not give remedy claimed in action — Grant
of injunction entailing decision s. 14(4)(e) invalid — Provision
in force unless and until declaration granted — Interim decla
ration of right improper — Canada Elections Act, R.S.C. 1970
(1st Supp.), c. 14, s. I4(4)(e) — Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. II (U.K.), ss. I, 3 —
Constitution Act, 1982, s. 52(1).
Penitentiaries — Prisoners' rights — Appeal against inter
locutory injunction enabling inmate to vote in federal election
— Inmate suing for declaration Elections Act s. 14(4)(e)
contrary to Charter s. 3 — Grant of injunction entailing
decision s. 14(4)(e) invalid — Provision in force unless and
until declaration granted — Interim declaration of right
improper — Canada Elections Act, R.S.C. 1970 (1st Supp.), c.
14, s. 14(4)(e) — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. I1 (U.K.), ss. I, 3.
Constitutional law — Charter of Rights — Validity of
Canada Elections Act, s. 14(4)(e) — Appeal against interlocu
tory injunction enabling prison inmate to vote in federal elec
tion — Inmate suing for declaration s. 14(4)(e) contrary to
Charter s. 3 — Not conventional injunction application involv
ing balance of convenience as between parties only — Proper
purpose of injunction not to give remedy claimed in action —
Grant of injunction entailing decision s. 14(4)(e) invalid —
Provision in force unless and until declaration granted —
Interim declaration of right improper — Canada Elections
Act, R.S.C. 1970 (1st Supp.), c. 14, s. 14(4)(e) — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. I, 3.
Elections — Voting rights — Appeal against interlocutory
injunction enabling prison inmate to vote in federal election —
Inmate suing for declaration Act s. 14(4)(e) contrary to Chart
er s. 3 — Interim declaration of right improper — Canada
Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 14(4)(e) —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 3.
A penitentiary inmate, prohibited from voting by paragraph
I4(4)(e) of the Canada Elections Act, had commenced an
action in the Trial Division seeking a declaration that that
paragraph was invalid as contrary to section 3 of the Charter.
That section provides that every citizen of Canada has the right
to vote. With a general election about to be held, the inmate,
upon interlocutory application to the Trial Division, was grant
ed a mandatory injunction allowing him to vote by proxy. An
appeal was taken from this decision.
Held (Thurlow C.J. dissenting), the appeal should be
allowed.
Per Mahoney J. (Marceau J. concurring): If this action
results in a finding that paragraph 14(4)(e) is invalid, either in
whole or in part, that finding will be equally applicable to every
prisoner in Canada. To treat the action as one pertaining to the
rights of the respondent alone is, accordingly, to ignore reality.
And it follows that the Trial Judge erred in dealing with the
application as though it were a conventional application for an
interlocutory injunction, on which the Court should consider
the balance of convenience only as between the parties.
The proper purpose of an interlocutory injunction is to
preserve the status quo or to restore the status quo ante, not to
give the plaintiff the remedy claimed in the action. The defend
ant is as entitled to a full and fair trial as is the plaintiff.
In making the impugned order, the Trial Judge went well
beyond a determination that there was a serious issue to be
tried and that the balance of convenience dictated the interim
preservation of the status quo or restoration of the status quo
ante. Her order entails a determination that paragraph
14(4)(e) is invalid. It authorizes the respondent to conduct
himself, and requires him to be treated, as if paragraph
14(4)(e) were now invalid—as if the respondent had already
won his suit—even though the provision will remain fully in
force unless and until the declaration claimed is granted. The
order is an interim declaration of right, and it is not a declara
tion that can properly be made before trial.
Per Thurlow C.J. (dissenting): The appellants have little or
nothing to lose from the granting of the injunction; the respond
ent would suffer an irrevocable loss if the injunction were
refused and he were thereby denied the right to vote in the
election; and the action would probably be rendered entirely
academic when, a few months hence, his sentence ends. On the
other hand, if the validity of paragraph 14(4)(e) ultimately is
upheld, the injunction will have conferred on the respondent a
right to which he was not entitled.
However, it is beyond dispute that unless the limit which
paragraph I4(4)(e) imposes upon the right to vote is
demonstrably justifiable as per section 1 of the Charter, the
paragraph is in conflict with the Charter's section 3. Further
more, the evidence before the Trial Judge supporting the
section 1 argument was so weak that the argument for uphold
ing paragraph 14(4)(e) can scarcely be regarded as a serious
one.
In these circumstances, the Court should not choose to treat
that submission seriously and to deprive the respondent of what
appears to be his constitutional right. Still less, in the circum
stances, should the Court interfere with the Trial Judge's
exercise of her discretion. Only rarely will a court be justified
in granting an injunction the effect of which is to affirm the
existence of a right, and to enforce the right, before the issue of
the right's existence has been tried. Where, however, the exist
ence of a right is probable but the opportunity to exercise the
right is fleeting, and the effect of denying immediate enforce
ment would be to decide the case irrevocably against the right
and in favour of a much weaker counter-argument, a court
should not shrink from granting relief if it considers that step to
be just. The Court does have the power to devise ways of
making the law effective, and it must be prepared to do so.
COUNSEL:
Duff F. Friesen, Q.C. and Seymour Mender
for appellants.
Fergus J. O'Connor for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Correctional Law Project, Faculty of Law,
Queen's University, Kingston, Ontario, for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J. (dissenting): This appeal is
from an order of the Trial Division [Gould v.
Attorney General of Canada, et al., [1984] 1 F.C.
1119] which, on an interlocutory application in an
action for declaratory relief, granted a mandatory
injunction requiring that the respondent, a person
undergoing punishment as an inmate in a peniten
tiary for the commission of a criminal offence, be
permitted to vote in the federal general election to
be held on September 4, 1984, that his vote be
counted in the electoral district of Hamilton-
Wentworth, where his name has been registered on
the voters' list, and that the returning officer for
that electoral district issue a proxy certificate
authorizing a named person to vote as proxy for
and on behalf of the respondent.
The issue in the appeal revolves around the
question of the validity, since the coming into force
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], of paragraph 14(4)(e) of the Canada
Elections Act [R.S.C. 1970 (1st Supp.), c. 14], a
provision which disqualifies persons in the position
of the respondent from voting in federal elections.
But the validity of paragraph 14(4)(e) is not the
issue. The issue, as I see it, is whether in the
particular circumstances disclosed by the material
before the Court the injunction should have been
granted when the validity of paragraph 14(4)(e)
had not been finally determined.
Section 3 of the Charter, under the heading
"Democratic Rights", provides that:
3. Every citizen of Canada has the right to vote in an election
of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
That the respondent is a citizen of Canada is not
in issue. It is, however, provided in section 1 that:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
Subsection 52(1) [of the Constitution Act,
1982] declares that:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
It is in this context that paragraph 14(4)(e) of
the Canada Elections Act, a provision which had
been in effect some years before the Charter,
comes into play. It provides that:
14....
(4) 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;
That the respondent falls within this provision is
beyond dispute, as is also the fact that, subject to
the effect of section 1 of the Charter, paragraph
14(4)(e) of the Canada Elections Act conflicts
with section 3 of the Charter.
The basis of the decision of the learned Trial
Judge, as I read it, is that as the respondent is a
citizen of Canada his right under section 3 to vote
in the election is established, subject only to the
appellants' being able to establish at a trial that
the limitation of the right to vote embodied in
paragraph 14(4)(e) of the Canada Elections Act is
demonstrably justified in a free and democratic
society within the meaning of section 1 of the
Charter, that such evidence on that point as was
before the Court was not of such a nature as to
weaken in a significant way the respondent's
prima facie case, and that the balance of conve
nience favoured the granting of the injunction
since the appellants had virtually "nothing to lose"
by the granting of the injunction, which would
require but a simple procedure, while the loss to
the respondent if the injunction were not granted
would be the denial of at least a prima facie
constitutionally guaranteed right.
It may be noted that, while the appellants have
little or nothing to lose by the injunction and the
respondent would irrevocably lose his right to vote
in the election if the injunction were to be refused,
and while his action in its entirety would probably
become moot some months hence on the termina
tion of his sentence, the effect of granting the
injunction would have been to confer on him a
right to which he was not entitled if it were to be
held eventually that paragraph 14(4)(e) was valid
and effective to deny him the right to vote.
I agree with the criticisms and views expressed
by the learned Trial Judge as to the weakness of
the evidence led to show that a serious case could
be made out that the limitation of paragraph
14(4)(e) is demonstrably justified in a free and
democratic society. She was obviously not
impressed by the evidence. I share her view. The
impression I have of it is that when that is all that
could be put before the Court to show a serious
case, after four years of work on the question, it
becomes apparent that the case for maintaining
the validity of the disqualification as enacted can
scarcely be regarded as a serious one.
In such circumstances then should the Court
treat it seriously? Should the Court irrevocably
deprive the respondent of a constitutional right to
which he appears to be entitled by denying the
injunction in order to give the appellants an oppor
tunity, which probably will not arise, to show he is
not entitled, when all the appellants can offer to
show that they have a case, is weak? I think not.
Even less do I think this Court should interfere
with the exercise of the discretion of the Trial
Judge in the circumstances.
Situations in which a court will be justified in
granting an injunction, the substantial effect of
which will be to determine and enforce a right
before it has been tried and finally decided, must,
of necessity, be rare because to enforce the right
when its existence is challenged and has not been
finally determined is contrary to our legal tradi
tion. On the other hand, it seems to me that even
this tradition may have to give way where the
effect of denying immediate enforcement of a
probable but fleeting right is to decide irrevocably
against the right and in favour of a much weaker,
if not forlorn, case. In such a situation, in my view,
a court should not, as the learned Trial Judge put
it, back away from granting relief where it consid
ers it just to do so.
When it is necessary, the Court, as it seems to
me, must be prepared to be innovative in devising
procedures and means, not heretofore employed, to
enforce rights guaranteed by the Charter. That the
Court has the power to devise procedures to make
the law effective is apparent from the development
in recent years of Mareva and Anton Piller
procedures.
For these reasons as well as those given by the
learned Trial Judge, with which I am in substan
tial agreement, I would dismiss the appeal.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from an order
of the Trial Division requiring the appellants to
make arrangements to permit the respondent to
vote in next Tuesday's federal general election
notwithstanding that the respondent is not quali
fied to vote by reason of paragraph 14(4)(e) of the
Canada Elections Act. The order is an interlocuto
ry mandatory injunction granted in an action seek
ing a declaration that paragraph 14(4)(e) is inval
id by reason of section 3 of the Canadian Charter
of Rights and Freedoms. Section 3 is to be read
together with section t
These provisions are:
14. ...
(4) 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;
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
3. Every citizen of Canada has the right to vote in an election
of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
Paragraph 14(4)(e) plainly cannot stand unless, by
virtue of section 1 of the Charter, it is found to be
a reasonable limit demonstrably justified in a free
and democratic society. That is the serious issue to
be tried. That is what the trial will be all about.
To treat the action as affecting only the rights of
the respondent is to ignore reality. If paragraph
14(4)(e) is found to be invalid in whole or part, it
will, to that extent, be invalid as to every incar
cerated prisoner in Canada. That is why, with
respect, I think the learned Trial Judge erred in
dealing with it as though the application before
her was a conventional application for an inter
locutory injunction to be disposed of taking
account of the balance of convenience as between
only the respondent and appellants.
The order made authorizes the respondent to
conduct himself and requires him to be treated as
though the law he seeks to have declared invalid
were now invalid notwithstanding that it remains
in full force and effect and will so remain unless
and until, after trial, the declaration sought is
made. That went far beyond a determination that
there is a serious issue to be tried. It required more
than the usual determination, in disposing of an
application for an interlocutory injunction, that
the balance of convenience dictated that the status
quo be maintained or the status quo ante be
restored pending disposition of the action after
trial. It was a determination that the respondent,
without having had his action tried, is entitled to
act and be treated as though he had already won.
The order implies and is based on a finding that
the respondent has, in fact, the right he claims and
that paragraph 14(4)(e) is invalid to the extent
claimed. That is an interim declaration of right
and, with respect, is not a declaration that can
properly be made before trial. The defendant in an
action is as entitled to a full and fair trial as is the
plaintiff and that is equally so when the issue is
constitutional. The proper purpose of an interlocu
tory injunction is to preserve or restore the status
quo, not to give the plaintiff his remedy, until trial.
In my opinion the learned Trial Judge erred in
law in making the order she did on an interlocuto
ry application. I would allow the appeal and set
the order of the Trial Division aside with costs,
here and in the Trial Division, if asked for.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: I am in agreement with Mr.
Justice Mahoney.
I agree with Mr. Justice Mahoney that this
appeal should be granted and I respectfully adopt
as mine the reasons he gave for reaching that
conclusion.
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