T-1182-88
Walter Stanley Belczowski (Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED AS: BELCZOWSK! V. CANADA (T.D.)
Trial Division, Strayer J.—Edmonton, January 23
and 24; Ottawa, February 28, 1991.
Elections — Canada Elections Act, s. 51(e) disqualifying
every inmate of penal institution — Paroled convict continuing
action, commenced while imprisoned, for declaration legisla
tion invalid as contravening Charter guarantees Crown not
objecting to standing — Provincial courts having upheld
validity of section — Charter s. 3 providing every citizen
having right to vote — Disqualification not justified under
Charter s. 1 — Objectives of s. 51(e) to maintain sanctity of
franchise, preserve integrity of voting process, sanction offend
ers — Doubtful democratic state can legislate tests of decency
on voters — S. 51(3) arbitrary in singling out one class of
indecent citizens to be denied franchise — Argument voting
more than marking ballot answered by evidence convicts aware
of current events due to media coverage — Evidence convicts
disqualified •from voting in many democratic countries not
supporting objectives here advanced — Impugned legislation
failing S.C.C. proportionality test in Oakes — Corrections
process seeking to protect society by facilitating ex-convict's
reintegration of which voting could form part.
Constitutional law — Charter of Rights — Democratic
rights — Parolee seeking declaration Canada Elections Act, s.
51(e) invalid for violation of Charter, s. 3 — Whether denial of
convicts' right to vote imposed by s. 51(e) justifiable under
Charter, s. 1 — Objectives of s. 51(e) discussed — Must relate
to concerns pressing and substantial in free and democratic
society — Restriction arbitrary in singling out one category of
presumably indecent or irresponsible citizens to be denied right
to vote — Proportionality test not met — S. 51(e) invalid as
not justified under Charter, s. 1.
Constitutional law — Charter of Rights — Equality rights
— Canada Elections Act, s. 51(e) not violating Charter, s. 15
— Grounds of discrimination must be specified in Charter, s.
15(1) or analogous — Application of law to plaintiff due to
imprisonment for crime not discrimination on analogous
ground.
The plaintiff was serving a sentence of life imprisonment
when he commenced this action for declarations that paragraph
51(e), or its identical predecessor paragraph 14(4)(e), of the
Canada Elections Act is without force and effect as violating
the right to vote guaranteed by section 3 of the Canadian
Charter of Rights and Freedoms and the right to equality
under the law as guaranteed by Charter section 15. He was
subsequently granted day parole but Jerome A.C.J. ruled that
he still had standing to continue the action. Although plaintiff
is now on full parole, the Crown did not object to standing on
that basis. Having expressed a desire to participate in the
democratic process of government by voting in federal elec
tions, the plaintiff would be entitled to vote but for paragraph
51(e) of the Canada Elections Act. There were three issues to
be tried: (1) whether paragraph 51(e) of the Canada Elections
Act violates section 3 of the Charter; (2) whether paragraph
51(e) violates Charter, section 15 and (3) if the answer to (1)
and (2) is yes, whether paragraph 51(e) prescribes reasonable
limits demonstrably justifiable in a free and democratic society
pursuant to Charter, section 1.
Held, the action should be allowed.
The first issue was that of a possible conflict with section 3 of
the Charter. On its face, paragraph 51(e) violates the right to
vote in a federal election as guaranteed by section 3: were
plaintiff still in prison, he would be prevented from voting in a
federal election. Unlike other sections of the Charter which use
qualifying words such as unreasonable, arbitrarily, reasonable
or unusual in the description of rights, section 3 is unambiguous
as to who hold the right ("every citizen of Canada") and what
they are entitled to do ("to vote in an election of the members
of the House of Commons ...") . The decision of the Manito-
ba Court of Appeal in Badger v. Canada (Attorney General),
which held that paragraph 14(4)(e) of the Canada Elections
Act could not be construed as in breach of Charter section 3,
was based on a "frozen concept" of statutory construction
applied to the Canadian Bill of Rights, a concept that has been
rejected by the Supreme Court of Canada as a guide to the
interpretation of the Charter.
The second issue related to a possible conflict with Charter
section 15. For there to be "discrimination" as prohibited by
subsection 15(1), the grounds of discrimination must be those
specified in that subsection or others analogous thereto. The
application of a law to the plaintiff's disadvantage based on his
conviction for a crime and imprisonment does not amount to
discrimination on a ground analogous to those specified in
subsection 15(1). Paragraph 51(e) of the Canada Elections Act
is therefore not inconsistent with section 15 of the Charter.
The final issue was whether paragraph 51(e) of the Canada
Elections Act, even if in conflict with Charter section 3, could
be justified by section I. In R. v. Oakes, the Supreme Court of
Canada laid down basic criteria for reliance on section 1 as a
justification for abridgements of rights otherwise guaranteed by
the Charter. The limitation of rights must be justified both as
to its ends and as to its means. The objective must "relate to
concerns which are pressing and substantial in a free and
democratic society" before it can justify the limitation. If so,
the proportionality of its means must then be demonstrated.
The defendant suggested that paragraph 51(e) had three objec
tives: (1) to affirm and maintain the sanctity of the franchise;
(2) to preserve the integrity of the voting process and (3) to
sanction offenders. As to (1), there was no evidence of a
legitimate objective of requiring a "decent and responsible
citizenry", even using the less demanding test of the attainment
of a desirable social objective which would warrant overriding
constitutionally protected rights. The restriction in question was
arbitrary in singling out one category of presumably indecent
or irresponsible citizens to deny them a right which they
otherwise clearly had under section 3. In support of the second
objective, it was argued that voting was not merely marking a
ballot but the final step after discussion and debate. Plaintiff
testified that he had been able to follow public events while in
prison by watching public affairs programs on television and
reading newspapers and magazines. This objective was there
fore insufficient to justify the denial of a right expressly
guaranteed by Charter section 3. The evidence that convicts
were disqualified from voting in other democratic countries did
not support what had been advanced as the objectives of the
impugned legislation. The third objective was more plausible.
The only persons disqualified were those who have been identi
fied as warranting punishment by imprisonment and the depri
vation lasts as long as does the imprisonment; that was a valid
objective in itself.
None of the three conditions of the proportionality test
identified in Oakes had been met. First, the means employed
were not rationally connected with the alleged objective of
maintaining a decent and responsible citizenry and the integrity
of the vote. Secondly, it could not be said that paragraph 51(e)
of the Canada Elections Act impairs "as little as possible" the
section rights; it completely abolishes such rights for the whole
period of imprisonment. The serious effect of the total denial of
the vote to prisoners was out of proportion to the very doubtful
and ill-defined objectives under consideration. Finally, the
Crown had not demonstrated that the outright denial of the
vote of every prison inmate was proportional to voting dis
qualification as punishment. Paragraph 51(e) applied regard
less of the seriousness of the crime for which the inmate was
being punished. The actual effect on the convict's right to vote
was arbitrary, depending on fortuitous circumstances such as
the timing of federal elections in relation to the period of
incarceration. There was also a lack of proportionality between
the objective and the denial of the vote since corrections theory
in Canada had recently moved towards rehabilitation and the
preparation of inmates for reentry into society. Voting could
form part of a convict's reintegration.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Elections Act, R.S.C. 1970 (1st Supp.) c. 14, s.
14(4)(e).
Canada Elections Act, R.S.C., 1985, c. E-2, s. 51(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.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2(d), 3, 15(1), 24(1).
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44],s. 52.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 2.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Lord's Day Act, R.S.C. 1970, c. L-13.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
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; 65 N.R. 87; 14 O.A.C. 335; Andrews v. Law Society
of British Columbia, [1989] 1 S.C.R. 143; (1989), 56
D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d)
273; 36 C.R.R. 193; 91 N.R. 255; 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.
APPLIED:
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712;
(1988), 54 D.L.R. (4th) 577; 19 O.A.C. 69; 10 C.H.R.R.
D/5559; 36 C.R.R. 1; 90 N.R. 84; 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;
R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C.
(3d) 8; 69 C.R. (3d) 97; 96 N.R. 115; Reference Re
Workers' Compensation Act, 1983 (Nfld.), [1989] 1
S.C.R. 922; (1989), 76 Nfld. & P.E.I.R. 181; 56 D.L.R.
(4th) 765; 235 A.P.R. 181; 96 N.R. 227; Badger et al. v.
Manitoba (1986), 39 Man. R. (2d) 107; 51 C.R. (3d) 163
(Q.B.); Grondin v. Ontario (Attorney General) (1988), 65
O.R. (2d) 427 (H.C.).
NOT FOLLOWED:
Badger v. Canada (Attorney-General) (1988), 55 D.L.R.
(4th) 177; [1989] 1 W.W.R. 216; 55 Man. R. (2d) 198
(Man. C.A.).
REFERRED TO:
MacNeil v. Nova Scotia Board of Censors (1974), 9
N.S.R. (2d) 483; 53 D.L.R. (3d) 259 (C.A.); Law Socie
ty of British Columbia et al. v. Attorney-General of
Canada et al. (1980), 108 D.L.R. (3d) 753; [1980] 4
W.W.R. 6; 18 B.C.L.R. 181; 15 C.P.C. 195; 50 C.P.R.
(2d) 34 (B.C.C.A.); Attorney General of Canada et al. v.
Law Society of British Columbia et al., [1982] 2 S.C.R.
307; (1982), 137 D.L.R. (3d) 1; [1982] 5 W.W.R. 289;
37 B.C.L.R. 145; 19 B.L.R. 234; 66 C.P.R. (2d) 1; 43
N.R. 451; Jolivet and Barker and The Queen and Solici-
tor-General of Canada (1983), 1 D.L.R. (4th) 604; 48
B.C.L.R. 121; 7 C.C.C. (3d) 431; 8 C.R.R. 5 (B.C.S.C.);
Sauvé v. Canada (Attorney General) (1988), 66 O.R.
(2d) 234; 53 D.L.R. (4th) 595 (H.C.); Gould v. Attorney
General of Canada, [1984] 1 F.C. 1119; (1984), 42 C.R.
(3d) 78 (T.D.); Lévesque v. Canada (Attorney General),
[1986] 2 F.C. 287; (1985), 25 D.L.R. (4th) 184 (T.D.);
Reference Re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313; (1987), 78 A.R. I; 38
D.L.R. (4th) 161; [1987] 3 W.W.R. 577; 51 Alta. L.R.
(2d) 97; 87 CLLC 14,021; [1987] D.L.Q. 225; 74 N.R.
99; Schachter v. Canada, [1990] 2 F.C. 129; (1990), 66
D.L.R. (4th) 635; 29 C.C.E.L. 113; 90 CLLC 14,005; 34
F.T.R. 80; 108 N.R. 123; Stoffman v. Vancouver Gen.
Hosp., [1991] 1 W.W.R. 577; (1990), 52 B.C.L.R. (2d)
1; 91 CLLC 17,003 (S.C.C.).
AUTHORS CITED
Beaudoin, Gérald -A. and Edward Ratushny, The
Canadian Charter of Rights and Freedoms, 2nd ed.
Toronto: Carswell Co., 1989.
COUNSEL:
Richard A. Stroppel for plaintiff.
Terrence Joyce, Q. C., and Meg Kinnear for
defendant.
SOLICITORS:
Brimacombe, Sanderman & Stroppel,
Edmonton, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
STRAYER J.:
Relief requested
In his statement of claim the plaintiff seeks
declarations that paragraph 14(4)(e) of the
Canada Elections Act' is without force and effect
as being in violation of the plaintiffs right to vote
guaranteed in section 3 of the Canadian Charter
1 R.S.C. 1970, (1st Supp.) c. 14.
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] ] and as being in violation of the
plaintiff's right to equality under the law as guar
anteed in section 15 of the Charter. Since the
commencement of this action the Revised Statutes
of Canada, 1985, have come into effect and para
graph 14(4)(e) has now been replaced by para
graph 51(e) of the Canada Elections Act e which is
identical in wording. It is agreed that the declara
tions now being sought pertain to the current
provision, paragraph 51(e) of the Canada Elec
tions Act.
It will be noted that the declarations of invalidi
ty are sought against Her Majesty as if this were
an action against the Crown. It is doubtful that
such an action can properly be brought against the
Crown,' but should instead be brought against the
Attorney General of Canada under section 18 of
the Federal Court Act. 4 However, counsel for the
Deputy Attorney General appearing in this action
took no objection to the form of the proceeding
and for present purposes I shall treat it as a claim
for declarations against the Attorney General.
Facts
On February 7, 1990 the parties signed an
amended agreed statement of facts. This statement
indicates that the plaintiff was born on October 7,
1953 and was sentenced on May 14, 1981 to life
imprisonment for second degree murder. When the
action was commenced in 1988 he was serving his
sentence in the Bowden Institution, a federal peni
tentiary in Alberta. He was subsequently granted
day parole effective July 10, 1989. This fact is
acknowledged in the amended agreed statement of
facts. The plaintiff brought an application by an
amended notice of motion dated February 20,
1990 to determine whether he had standing to
proceed with the action even though he was no
2 R.S.C., 1985, e. E-2.
3 See e.g. MacNeil v. Nova Scotia Board of Censors
(1974), 9 N.S.R. (2d) 483 (C.A.); Law Society of British
Columbia et al. v. Attorney—General of Canada et al. (1980),
108 D.L.R. (3d) 753 (B.C.C.A.), this point being discussed but
not decided on appeal in [1982] 2 S.C.R. 307, at pp. 321-326.
4 R.S.C., 1985, c. F-7.
longer in prison. Jerome A.C.J. on February 23,
1990 -found that he still had standing to continue
the action. Since that time the plaintiff has been
granted full parole but counsel for the defendant
refrained from making any objection to standing
on that basis. In this connection it may be noted
that as the plaintiff was sentenced to life imprison
ment he remains subject to revocation of his parole
and return to prison should he breach the condi
tions of parole.
It is recognized in the agreed statement of facts
that the plaintiff has expressed a desire to partici
pate in the democratic process of government by
voting in federal elections. The plaintiff alleges
that he is a Canadian citizen and the defendant
does not appear to dispute that fact. Certainly
nothing was made to turn on this in the argument.
Thus it is not disputed that he would be entitled to
vote were it not for the provisions of paragraph
51(e) of the Canada Elections Act.
Issues
The parties are agreed that the issues to be tried
may be stated as follows:
a) Do the provisions of paragraph 14(4)(e) of the Canada
Elections Act violate section 3 of the Charter?
b) Do the provisions of paragraph 14(4)(e) of the Canada
Elections Act violate section 15 of the Charter?
c) If the answer to (a) or (b) is in the affirmative, do the
provisions of paragraph 14(4)(e) of the Canada Elections
Act prescribe reasonable limits which are demonstrably
justifiable in a free and democratic society so as to fulfil the
requirements of section 1 of the Charter?
It is agreed, of course, that references to para
graph 14(4)(e) equally apply to paragraph 51(e)
of the present version of the Canada Elections Act.
Conclusions
Paragraph 51(e) of the current Canada Elec
tions Act' provides 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 ....
5 Supra, note 2.
The validity of this section has been upheld by the
courts of at least three provinces 6 . In two 7 of those
cases decisions were taken on an urgent basis in
the face of a pending federal election. In the third'
some reasoning was applied which has been reject
ed by colleagues in the Trial Division in subse
quent cases. 9 Apart from these latter cases which
were not determinative of the validity of para
graph 51(e), it appears that the Federal Court has
not had occasion to address the substantive issues
raised by the plaintiff. I shall deal in turn with the
issues identified by the parties for determination.
Possible conflict with section 3 of the Charter
Section 3 of the Charter provides as follows:
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.
On its face, paragraph 51(e) violates the right of
the plaintiff to vote in a federal election as guaran
teed to him by section 3. It is not disputed that,
were he in prison as he has been and might be
again, he would be prevented by paragraph 51(e)
from voting in an election of members of the
House of Commons.
It should be noted that there are no qualifying
words in section 3 such as are found in the descrip
tion of many other rights guaranteed by the Chart
er: words such as "unreasonable" in section 8 or
paragraph 11(a), "arbitrarily" in section 9, "rea-
sonable" as found in paragraph 6(3)(b) and para
graph 11(e), or "unusual" as found in section 12.
There are no amorphous concepts such as
"association" found in paragraph 2(d) and no
difficulty in discerning what activities are implicit
6 Jolivet and Barker and The Queen and Solicitor-General
of Canada (1983), 1 D.L.R. (4th) 604 (B.C.S.C.); Sauvé v.
Canada (Attorney General) (1988), 66 O.R. (2d) 234 (H.C.);
Badger v. Canada (Attorney-General) (1988), 55 D.L.R. (4th)
177 (Man. C.A.).
7 Sauvé, Badger, ibid.
8 Jolivet, supra, note 6.
9 Reed J. in Gould v. Attorney General of Canada, [1984] 1
F.C. 1119 (T.D.) at p. 1126, where a mandatory injunction was
sought, appeal allowed on the remedy issue [1984] 1 F.C. 1133
(C.A.); affd [1984] 2 S.C.R. 124; Rouleau J. in Lévesque v.
Canada (Attorney General), [1986] 2 F.C. 287 (T.D.) at p.
294, ordering that federal prisoners be permitted to exercise
their right under provincial law to vote in a Quebec election.
ly protected by such a concept. 10 It is quite clear in
section 3 who are the holders of the right ("every
citizen of Canada") and what they are thereby
entitled to do ("to vote in an election of the
members of the House of Commons ...."). I am
not deterred in this finding by the argument of the
defendant that the section cannot be applied liter
ally because there are some, such as infants, who
clearly should not have the right to vote. I do not
need to define here who may properly be denied
the vote; that issue must be determined in each
case under section 1 of the Charter. Nor need I be
deterred by the fact that section 3 gives to the
same people ("every citizen") the right to be quali
fied for membership in the House of Commons.
That right is also subject to limitations under
section 1, and such limitations might be justifiable
in different circumstances from those relevant to a
limitation on the right to vote.
The existence of section 1 removes any lingering
doubt that one might have as to giving section 3 its
plain and obvious meaning. A contrast can be
made with the United States Constitution, whose
First Amendment provides that Congress shall
make no law "abridging the freedom of speech".
The U.S. Constitution has no provision compa
rable to section 1 of the Charter. It has therefore
been thought necessary for the U.S. courts to read
qualifications into broad guarantees such as the
First Amendment guarantee of freedom of speech,
giving lesser protection to "commercial speech".
This approach was expressly rejected by the
Supreme Court of Canada in Ford v. Quebec
(Attorney General) 11 where the Court said:
Given the earlier pronouncements of this Court to the effect
that the rights and freedoms guaranteed in the Canadian
Charter should be given a large and liberal interpretation, there
is no sound basis on which commercial expression can be
excluded from the protection of s. 2(b) of the Charter.
The Court proceeded also to reject the justification
for limits on this freedom said to be based on
10 C See e.g. Reference Re Public Service Employee Relations
Act (Alta.), [1987] 1 S.C.R. 313 where the Supreme Court had
to determine whether freedom of association includes the right
to bargain collectively and the right to strike.
" [1988] 2 S.C.R. 712, at pp. 766-767.
section 1 of the Charter. (In the later Irwin Toy
Ltd. v. Quebec (Attorney General) case ' 2 a majori
ty of the Court held certain limitations on com
mercial expression to be justified under section 1).
The phrase "freedom of expression" is consider
ably more nebulous than the phrase "the right to
vote in an election of members of the House of
Commons" and yet the Supreme Court was not
prepared to limit the intrinsic content of that
guarantee in section 2. There is considerably less
basis for so limiting the content of section 3 to
what some might regard as a more convenient
form that would eliminate the need to justify
under section 1 any restrictions on the right to
vote.
Counsel for the defendant relied in part on the
judgment of Lyon J.A. in Badger v. Canada
(Attorney-General) 13 in the Manitoba Court of
Appeal where he alone concluded that paragraph
14(4)(e) did not conflict with section 3 of the
Charter. He stated:
In my opinion, the enactment of s. 3 of the Canadian Charter
of Rights and Freedoms was intended to entrench and to
constitutionalize the traditional and fundamental right to vote
enjoyed and practised by Canadian citizens subject to the
reasonable statutory conditions and disqualifications then
extant which attached to it. Thus, the right to vote in s. 3
should be read as reflecting that right as it had developed and
was known in our country. I am satisfied that the framers of
the Charter did not intend to create a new right, reflecting
some unfamiliar, unconditional and abstract ideal which had
never been enjoyed or accepted by the citizens of Canada. In
these circumstances, it is clear that s. 14(4)(e) of the Canada
Elections Act, R.S.C. 1970, c. 14 (1st Supp.), an integral part
of the right to vote since Confederation, cannot be construed as
being in breach of s. 3 of the Charter. With respect, I find that
to hold otherwise, given the history and development of the
right to vote in our country, requires a rigid, blinkered and
literal interpretation of s. 3 which is unreasonable, unrealistic
and unjustified.'^
With the greatest respect I am unable to concur
with the learned judge. It appears to me that this
view of Charter rights is based on the "frozen
concept" interpretation applied to the Canadian
12 [1989] 1 S.C.R. 927.
13 (1988), 55 D.L.R. (4th) 177 (Man. C.A.).
14 Supra, note 13, at p. 192.
Bill of Rights. 15 It is my understanding that the
Supreme Court of Canada has rejected this con
cept as a guide to the interpretation of the Chart
er. For example in R. v. Big M Drug Mart Ltd et
al., Dickson C.J. writing for the majority stated:
The language of the Charter is imperative. It avoids any
reference to existing or continuing rights but rather proclaims
in the ringing terms of s. 2 that:
2. Everyone has the following fundamental freedoms: (a)
Freedom of conscience and religion;
I agree with the submission of the respondent that the Charter
is intended to set a standard upon which present as well as
future legislation is to be tested. Therefore the meaning of the
concept of freedom of conscience and religion is not to be
determined solely by the degree to which that right was enjoyed
by Canadians prior to the proclamation of the Charter .... 1 b
Consequently the Court in that case struck down
the Lord's Day Act" even though its restrictions
on Sunday commercial activity had been in effect
since 1906 and had clearly established a familiar
limitation on freedom of religion long before the
Charter was adopted.
I therefore conclude that paragraph 51(e) of the
Canada Elections Act and its predecessor, para
graph 14(4)(e), conflict with section 3 of the
Charter.
Possible conflict with section 15 of the Charter
Subsection 15(1) of the Charter provides as
follows:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
While the issue is raised by the pleadings and the
amended agreed statement of facts as to whether
the statutory restriction on the plaintiffs right to
vote denies him equality under the law contrary to
subsection 15(1) of the Charter, counsel for the
plaintiff did not press this argument and counsel
5 R.S.C. 1970, Appendix III. This concept is described in
Beaudoin and Ratushny, The Canadian Charter of Rights and
Freedoms (2nd ed. 1989) at pp. 8-9. It was based on the
particular wording of section 1 of the Bill which "declared that
... there have existed and shall continue to exist..." the right
described in the Bill. (Emphasis added.)
16 [1985] 1 S.C.R. 295, at pp. 343-344.
17 R.S.C. 1970, e. L-13.
for the defendant was content to respond to this
issue through his written memorandum of fact and
law. I believe it is now clear since decisions such as
R. v. Turpin'$ and Reference Re Workers' Com
pensation Act, 1983 (Nfld.), 19 that for there to be
"discrimination" as prohibited by subsection 15(1)
the grounds of discrimination must be those speci
fied in subsection 15(1) or others analogous there
to. I am unable to conclude that a law applied to
the plaintiff to his disadvantage by reason of the
circumstance that he has committed a crime and is
imprisoned under lawful sentence amounts to dis
crimination on some ground analogous to those
specified in subsection 15(1).
I therefore conclude that paragraph 51(e) of the
Canada Elections Act like its predecessor para
graph 14(4)(e) is not inconsistent with section 15
of the Charter.
Possible justification under section 1 of the
Charter
Two of the three members of the panel of the
Manitoba Court of Appeal hearing the case of
Badger v. Canada (Attorney-General), 20 while
accepting that the predecessor to paragraph 51(e)
of the Canada Elections Act was in conflict with
section 3 of the Charter, upheld it on the basis of
section 1 thereof. Lyon J.A. who had found no
conflict with section 3, also agreed that it was
justified by section 1. It is with great deference
and some hesitation, therefore, that I embark on
this enquiry once again even though the decision of
the Manitoba Court of Appeal is not binding on
this Court.
I have concluded that the question requires reex-
amination, however, given the specifics of the deci
sion of the Manitoba Court of Appeal and the
circumstances under which it was rendered. It
appears to me that the most important factor in
the reasons of Monnin C.J.M. and Philp J.A. was
that in their view the Trial Judge had given an
inappropriate remedy on the eve of an election. A
federal election was to be held on November 21,
1988. On November 8, 1988 Hirschfield J., of the
'" [1989] 1 S.C.R. 1296, at pp. 1332-1333.
19 [1989] 1 S.C.R. 922, at p. 924.
20 Supra, note 6.
Manitoba Queen's Bench, after a three day hear
ing, declared that then paragraph 14(4)(e) was
inconsistent with section 3 of the Charter and not
justified under section 1 of the Charter, being void
and of no effect in law. He thereupon ordered the
Chief Electoral Officer, one of the respondents, to
enumerate the inmates of all penal institutions and
ensure that those otherwise lawfully qualified
«have the physical capability to vote» in the elec
tion to be held on November 21st, some thirteen
days later. An appeal from that decision was
argued before the Manitoba Court of Appeal on
November 14th and 15th and a decision allowing
the appeal was issued on November 18th, some
three days before the election. It will be noted that
relief had been sought, and granted by the Trial
Judge, against the Chief Electoral Officer of
Canada who would clearly seem to come within
the definition of a "federal board, commission or
other tribunal" in section 2 of the Federal Court
Act. 21 This would bring any relief sought against
him within the exclusive jurisdiction of the Trial
Division of the Federal Court under section 18 of
the Federal Court Act. Both Monnin C.J.M and
Philp J.A. recognized the jurisdictional problem
but found it unnecessary to decide given their
conclusion that the order should in any event be
set aside. Both judges appear to take the position
that even if the Trial Judge found paragraph
14(4)(e) to be invalid he should not have made the
order he did: instead, he should have preserved the
status quo and allowed Parliament to modify the
Elections Act. 22 It was recognized that the ma
chinery did not exist for the conduct of a "mail-in
vote" and such could not reasonably be organized
on short notice. The difficulty of the writ of the
Manitoba Court only extending to that province,
whereas the administration of a federal law was at
stake resulting in potential disparity among prov
inces as to the right of prisoners to vote in a
federal election, was also noted. While the merits
of a possible justification under section 1 were
considered briefly, it appears that the main evi
dence before the court on that issue had to do with
voting restrictions in other jurisdictions. Philp J.A.
said that he agreed "dubitante" with the conclu-
2' The version then in force being R.S.C. 1970 (2nd Supp.),
c. 10.
22 Badger case supra, note 6 at pp. 187, 189-190.
sion of the Chief Justice on this point, his doubt
arising from
... the broad sweep of the disqualification, affecting all
inmates in any penal institution, regardless of the nature of the
offences for which they were convicted and regardless of the
length of their sentences. 23
In the present case there has been no immediacy
and no problem as to an appropriate remedy: the
only remedy being sought is a declaration as to the
constitutionality of the law in question. Notwith
standing the views of Monnin C.J.M. and Philp
J.A. in the Badger case, I consider it entirely
permissible for me to hold the provision to be
invalid and of no effect if I conclude that it is not
justified under section 1 of the Charter. Indeed, I
have a duty to do so under section 52 of the
Constitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix
II, No. 44]] unless circumstances were such that I
could grant some appropriate remedy under sub
section 24(1) of the Charter. 24
In approaching anew the question of whether
the limitation of section 3 rights imposed by para
graph 51(e) of the Canada Elections Act is justifi
able under section 1, I have had regard to what
Dickson C.J. stated in R. v. Oakes as to a "contex-
tual element of interpretation of section 1" pro
vided by the words "free and democratic society"
in that section.
Inclusion of these words as the final standard of justification
for limits on rights and freedoms refers the Court to the very
purpose for which the Charter was originally entrenched in the
Constitution: Canadian society is to be free and democratic.
The Court must be guided by the values and principles essential
to a free and democratic society which I believe embody, to
name but a few, respect for the inherent dignity of the human
23 Ibid., at p. 188.
24 See Big M case, supra, note 16, at p. 313; Schachter v.
Canada, [1990] 2 F.C. 129 (C.A.), at pp. 136-138.
person, commitment to social justice and equality, accommoda
tion of a wide variety of beliefs, respect for cultural and group
identity, and faith in social and political institutions which
enhance the participation of individuals and groups in society.
The underlying values and principles of a free and democratic
society are the genesis of the rights and freedoms guaranteed
by the Charter and the ultimate standard against which a limit
on a right or freedom must be shown, despite its effect, to be
reasonable and demonstrably justified. 25 (Emphasis added.)
It is important to note the recognition in this
statement of respect for the individual as an inher
ent element of a free and democratic society.
In this same case the Supreme Court of Canada
laid down basic criteria for reliance on section 1 as
a justification for abridgements of rights otherwise
guaranteed by the Charter. The Court made it
clear that the onus is on the party seeking to
uphold the limitation of rights, the burden of proof
being by a preponderance of probability which
test, it said, "must be applied rigorously". 26 The
limitation must be justified both as to its ends and
as to its means: or what is now commonly
described as the test of both the objective and the
proportionality of the limitation. The objective, it
was said, must "relate to concerns which are press
ing and substantial in a free and democratic socie
ty" before it can justify the limitation. If the
limitation is justified by this test, then the propor
tionality of its means must be demonstrated. The
Supreme Court elaborated the latter test as involv
ing three aspects:
First, the measures adopted must be carefully designed to
achieve the objective in question. They must not be arbitrary,
unfair or based on irrational considerations. In short, they must
be rationally connected to the objective. Second, the means,
even if rationally connected to the objective in this first sense,
should impair "as little as possible" the right or freedom in
question: R. v. Big M Drug Mart Ltd., .... Third, there must
be a proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom, and
the objective which has been identified as of "sufficient
importance". 27
25 [1986] 1 S.C.R. 103, at p. 136.
26 Ibid., at pp. 136-137.
22 Ibid., at p. 139.
Some moderation of the test of a legitimate objec
tive was later suggested in the case of Andrews v.
Law Society of British Columbia where McIntyre
J. resiled from the "pressing and substantial" test
to one of determining whether the limitation
... represents a legitimate exercise of the legislative power for
the attainment of a desirable social objective which would
warrant overriding constitutionally protected rights. 28
Counsel for the defendant also pointed out that in
the recent Supreme Court of Canada decision
in Stoffman v. Vancouver General Hospital 29
La Forest J. writing for the majority had indicated
that a court should be more activist in judging
proportionality of a measure where the state is the
"singular antagonist" of the person whose rights
have been violated, but show more deference to the
legislative assessment of proportionality in respect
of legislation involving "the reconciliation of
claims of competing individuals or groups". Coun
sel for the defendant contended that if paragraph
51(e) of the Canada Elections Act limits the right
to vote, this is a limitation of the latter kind and
therefore the Court should defer to the judgment
of Parliament. I am unable to see why this limita
tion is not one where the state is the "singular
antagonist" of the plaintiff whose rights have been
violated. The justifications offered by the defend
ant for this legislation, which will be discussed
below, all relate to the public interest supposedly
represented by the state. I therefore see no need
for a greater measure of deference to Parliament
in assessing the proportionality of this limitation,
assuming it has some valid objective.
I will now turn to the application of the two tests
under section 1 as mandated by the Supreme
Court.
(i) Objective — The defendant defines the
objectives of paragraph 51(e) and its predecessor
as being:
(a) to affirm and maintain the sanctity of the franchise in our
democracy;
(b) to preserve the integrity of the voting process; and
(c) to sanction offenders.
28 [1989] 1 S.C.R. 143, at p. 184.
29 [1990] 3 S.C.R. 483.
The only evidence produced by the defendant in
support of the limitation of the right of prisoners
to vote was that of an expert, Professor Rainer
Knopff, professor of political science at the Uni
versity of Calgary. His evidence related primarily
to objectives (a) and (b) and, to a much lesser
degree, objective (c). The defendant specifically
eschewed any claim that allowing prisoners to vote
would create undue administrative or security
problems and no evidence was presented to this
effect.
With respect to objective (a) involving the
"sanctity" of the franchise, the basic proposition of
the defendant is that
constitutional democracies require a decent and responsible
citizenry who respect and voluntarily abide by the laws of the
state.
Much of the evidence of professor Knopff focused
on this proposition. He analyzed the views of a
variety of political and legal philosophers from the
17th to the 20th century in support. He demon
strated how this notion of the prerequisite of a
democratic state has been variously based on natu
ral rights, social contract, liberal philosophy, and
utilitarian theories.
This proposition appears to me to be descriptive,
rather then prescriptive. The "social contract" is
surely a metaphor for the evolution of modern
consensually-based societies, which are based on at
least the acquiescence of most citizens in the
system of government in place. There flows from
this a general, but not universal, acceptance of the
laws generated by that system. As many liberal
philosophers have observed, a liberal democracy
cannot be maintained where laws are not generally
acceptable to most people because otherwise the
police measures necessary for effective law
enforcement would destroy individual rights and
liberties.
While this proposition of the defendant embo
dies a reasonable description of certain practical
preconditions for a modern liberal democratic
state, it is not self-apparently prescriptive of exclu-
sionary measures that may or must be taken
against certain classes of potential voters. On its
face it does not alter the basic principle that in a
democratic state it is the voters who choose the
government, not the other way around.
What I must instead be satisfied about in the
case before me is the justifiability of the objective
of this particular law. How is that objective to be
determined? Presumably I can resort to both its
purpose and its effect to the extent that these can
be ascertained. There is no hint in the Canada
Elections Act as to the purpose of this provision:
the disqualification of prisoners appears amidst a
number of disparate disqualifications including
those of officers responsible for the conduct of the
election, federally appointed judges, those deprived
of management of their property by reason of
mental disease and those specifically disqualified
for corrupt or illegal election practices. No extrin
sic evidence was presented to me as to the purpose
of Parliament in adopting this legislation, other
than the retrospective rationalizations offered by
professor Knopff. His able description of the rumi
nations of philosophers from Immanuel Kant to
George Grant gives me very little clue as to the
specific purpose of the Parliament of Canada in
adopting paragraph 51(e) of the Canada Elections
Act. When I look to its effect, however — and I
have only the words of the Act and judicial notice
of community characteristics to guide me — I am
unable to see evidence of a legitimate objective of
requiring a "decent and responsible citizenry",
even using the less demanding test of
the attainment of a desirable social objective which would
warrant overriding constitutionally protected rights. 30
Although it is essential to a modern liberal democ
racy that the majority of people be "decent and
responsible" in the sense of accepting the existence
of the state and the legitimacy of its legal system
as well as obeying most of its positive laws, this
tells us very little about how far the state can go in
suppressing those who do not conform to the
majority consensus. It seems to me a very dubious
proposition to accept as a corollary of such a state
that its legislators may impose tests of "decency"
and "responsibility" on voters going beyond basic
requirements of capacity (related to maturity and
mental condition) to cast a meaningful vote. Even
if such a "social objective" can be legitimate, the
law in question here must be seen as not embody
ing such an objective. It is arbitrary in singling out
one category of presumably indecent or irrespon-
30 Supra, note 28.
sible citizens to deny them a right which they
otherwise clearly have under section 3. It is self-
apparent that there are many indecent and irre
sponsible persons outside of prison who are entitled
to vote and do vote; on rare occasions some even
get elected to office. On the other hand there are
many law-breakers who are never charged with
offences, and a high percentage of those who are
never imprisoned. Those who have been identified
among the indecent and irresponsible by a sen
tence of imprisonment do not necessarily become
decent and responsible upon release, although their
voting rights automatically arise again under the
Canada Elections Act. I therefore do not find, in
the effects of this provision, a clear indication of a
legitimate objective of confining the vote to the
"decent" and the "responsible", nor do I find that
objective sufficiently meaningful or workable to
sustain a direct and expressed deprivation of a
right guaranteed under section 3 of the Charter.
In support of objective (b) concerning the pre
servation of the "integrity of the voting process" as
asserted by the defendant, counsel argued that
voting involves more than marking a ballot: it is
the final step after discussion and debate. There
fore the deprivation of a prisoner's right to vote is
a recognition that "the conditions which ... pre
vail in a penal institution, are inimical to such
discussion and interplay". There was absolutely no
evidence presented on this point by the defendant.
The plaintiff in his own testimony related how he
was able to follow public events in prison through
watching numerous public affairs programs on
television and reading newspapers and magazines
regularly available to inmates. 31 I therefore do not
accept this as an objective sufficient to justify the
31 I refused to allow another witness to testify for the plaintiff
on the subject of conditions in this respect in several prisons. It
appeared to me that his evidence was of an expert nature which
had not been preceded by a proper affidavit as required by Rule
482. I indicated that I would consider allowing him to give
rebuttal evidence, as is permitted under Rule 482, if the
defendant introduced evidence on this subject. The defendant
introduced no such evidence and the plaintiff made no further
request to call this witness.
denial of a right expressly guaranteed by section 3
of the Charter.
The defendant put in evidence through Professor
Knopff, and through filing legislation of Canadian
and foreign jurisdictions, to show that the dis
qualification of prisoners from voting is a wide
spread practice in countries we would regard as
free and democratic. I understand this to be sub
mitted essentially in support of objectives (a) and
(b) as identified by the defendant. Professor
Knopff demonstrated that such disqualification
goes back to at least the beginning of the 19th
century, and one might observe that before that
time the franchise in most of these countries was
already drastically limited to the privileged few.
Without going into details of existing provisions
one may note that in all provinces of Canada
except Newfoundland and Quebec prisoners are
denied the right to vote in provincial elections. In
the United Kingdom and New Zealand prisoners
may not vote. All but eight of the states in the
continental United States deny the vote to prison
ers convicted for at least certain crimes, varying
from one state to another. In Australia at the
federal level there is disentitlement for those con
victed of more serious offences. Among the Aus-
tralian states, one disqualifies all prisoners under
conviction, four states disqualify those serving sen
tences of more than a specified number of years,
and one state permits prisoners to vote. France
disqualifies many categories of convicted persons,
including some not serving prison sentences. As a
practical matter prisoners in Ireland cannot vote
because they are not released for this purpose nor
is there any system of proxy voting. On the other
hand, convicted persons have the same right to
vote as anyone in Denmark, Sweden, and Switzer-
land. Interestingly, in certain other states the dep
rivation of the right to vote of a prisoner depends
on the court specifically ruling to that effect: these
include Germany, Greece, and Spain. I do not find
this evidence compelling in support of the objec
tives of requiring a decent and responsible citizen
ry or preserving the integrity of the voting process.
I have no idea what objective these countries had
in mind, if any, in adopting these provisions.
Objective (c) contended for by the defendant,
"to sanction offenders", appears to me to be much
more plausible. The disqualification from voting
provided in paragraph 51(e) is confined to those
undergoing punishment as an inmate in any penal institution
for the commission of any offence.
Thus it does not disqualify those who are in prison
awaiting trial, those charged with offences but not
convicted, and those whose punishment by a prison
term has been completed. Those who suffer a
deprivation of their section 3 voting right are
precisely those who have been identified as war
ranting punishment by imprisonment and the dep
rivation lasts as long as does the imprisonment. On
the face of it it is hard to characterize this as an
invalid objective in and of itself. It is accepted that
the state may punish those who commit crimes
even though such punishment involves the depriva
tion of Charter rights or liberties such as freedom
of association and assembly in section 2.
(ii) Proportionality — I will apply, in respect
of the objectives identified by the defendant, the
three components of the proportionality test as
identified in Oakes: namely, whether the means
employed are rationally connected to the objective;
if so do they impair as little as possible the right of
freedom in question; and is there proportionality
between the effects of the measure in question and
the objective to be achieved.
As I have rejected the alleged objective of main
taining a decent and responsible citizenry and the
integrity of the vote I will not deal at length with
the proportionality test as applied to those objec
tives. If however I should be wrong in rejecting
them as legitimate objectives I would simply refer
back to what I said in the context of seeking to
ascribe some objective to paragraph 51(e). That is,
the impugned provision appears to me to be ration
ally connected to neither of these objectives. With
respect to its use to require a decent and respon
sible citizenry, I indicated that by limiting its
reach to those in prison it would arbitrarily single
out a few of the many whose franchise should be
denied on the same grounds. With respect to the
alleged objective of preserving the integrity of the
voting process, I have demonstrated that there was
no evidence to show any rational connection be
tween paragraph 51(e) and the exclusion from the
franchise of those not able to participate fully in
political life. If one were to join this particular
crusade advocated by Crown counsel, it would be
necessary to disenfranchise the sick and the elderly
who are confined to their homes or institutions,
those in hospital prior to an election, probably
those out of the country during election cam
paigns, the illiterate, those who live in remote parts
of the country and, most of all, those hundreds of
thousands who live in our midst and who, accord
ing to regular polls, take no interest whatever in
politics. The absurdity of this proposition throws
into question the whole argument that the state
has a right to choose among adult citizens of sound
mind as to who is worthy to vote.
Applying the second component of the Oakes
test to these two alleged objectives, it cannot be
said that the provision in question impairs "as little
as possible" the section 3 rights; indeed the effect
is quite the contrary. Paragraph 51(e) of the
Canada Elections Act is a direct frontal assault on
the right to vote of those to whom it applies, a
total abolition of that right for the period in
question.
Applying the third part of the Oakes test, I
believe what has gone before will explain my con
clusion that the serious effect of the total denial of
the vote to prisoners is out of proportion to the
very doubtful and ill-defined objectives under con
sideration at this point.
I now turn to the application of the Oakes test
of proportionality to the third objective asserted,
that of sanctioning offenders. There is a clearly
rational connection between this objective of pun
ishment and the denial of the vote. Denial applies
only in respect of those convicted of crimes and
sentenced to prison, while they are actually serving
their sentences. Such persons are by definition
worthy of punishment and the denial of the vote,
like the legal denial of any other right or privilege
of prisoners, is a penalty.
Again, however, it cannot be said that this
means of punishment impairs the section 3 right
"as little as possible". Instead it directly and com
pletely abolishes that right for the period of
imprisonment. In this it is in contrast to incidental
abridgment, brought about by imprisonment, of
other Charter rights and freedoms such as freedom
of association or assembly or expression.
Finally, with respect to voting disqualification as
punishment, the government has not demonstrated
to my satisfaction that the outright denial of the
vote of every prison inmate is proportional to this
objective. First, it may be noted that paragraph
51 (e) applies no matter what the seriousness of the
crime may be for which the inmate is being pun
ished. Secondly, the actual effect on the inmate's
right to vote will be quite arbitrary, depending on
fortuitous circumstances such as the timing of
federal elections in relation to the period he hap
pens to serve his sentence. Thus someone in prison
for two weeks for non-payment of parking fines
could lose his vote for four years because his
sentence happened to coincide with a federal elec
tion. On the other hand, someone sentenced to
prison for five years for fraud or sexual assault and
released on parole after three and one-half years
might never miss the opportunity to vote. Thus
there is no necessary coordination between serving
of a prison sentence and the actual loss of a right
to vote. Thirdly, there is a lack of proportionality
between the objective and the denial of the vote in
that corrections theory in Canada for the last fifty
years has moved in the direction of rehabilitation
and the preparation of inmates for reentry into
society. This was described in the testimony of
Professor Roderick C. Macleod, a professor of
history at the University of Alberta, who testified
on behalf of the plaintiff. The strength of any
justification for the denial of the vote based on the
objective of punishment must depend in part on
the importance of punishment by itself in the
process. It is implicit in our elaborate prison and
parole programs that the corrections process
involves something more than vengeance or deter
rence: it is also designed to protect society by
trying to further the orderly reentry therein of
former inmates. This process begins before
inmates complete their sentences and may include
vocational or academic training in prison or
extramurally, temporary passes, day parole, full
parole, or mandatory supervision. In this process
the element of punishment is reduced in impor
tance and the re-adjustment of the inmate to
society is emphasized. Voting could form part of
that re-adjustment. It is important to keep this in
mind in assessing the significance of the purpose of
punishment in comparison to the effect of an
absolute interference with a Charter right, namely
the denial of the vote throughout the term of
imprisonment.
One finds in some of the foreign legislation a
more sensitive regard for proportionality. Some
jurisdictions such as Germany, Greece and Spain
allow the sentencing court at its discretion to order
a forfeiture of the vote in certain cases. Many
other jurisdictions limit the deprivation of vote to
those serving sentences for the most serious crimes.
No such niceties soften the blunt instrument of
paragraph 51(e) of the Canada Elections Act.
Several judges of provincial superior courts have
observed a lack of proportionality in the predeces
sor to paragraph 51(e) or its provincial equiva
lents. Scollin J. of the Manitoba Court of Queen's
Bench in Badger et al v. Manitoba stated in
respect of a similar provision in provincial law:
The objective and general nature of the limit being justified,
the real issue is the application of the "proportionality test"
referred to in the Oakes case. The balancing of interests must
satisfy the three components of rational connection, minimum
impairment and proportionality of purpose and effect. The
disqualification contained in section 31(d) of the Election Act
fails both the first and the second tests. It is simply a blanket
disqualification of absolutely everyone who happens to be in
any penal institution at all, serving any sentence of imprison
ment for any offence, serious or minor. Thus, for example, no
culpable loss of the civic capacity to vote exists and, therefore,
the requisite rational connection is absent in the case of a
person who has been imprisoned for the inadvertent commission
of an offence of absolute liability. Again, as regards the extent
of impairment of the constitutional right, a minimal infraction
of a regulatory statute which is penalized by a few days
imprisonment may result in the effective loss for four years or
more of the right to vote. The courts must beware of becoming
dictators of tolerance, but in this case the law-makers must give
more considerate, as well as more vigilant, thought to the
Charter implications of both the existing and any proposed new
legislation. The present relatively complacent pre -Charter dis
qualification provision fails to meet the standard now demand
ed of a limit on the constitutional right to vote. 32
Hirschfield J. in Badger v. Canada (Attorney-
General) observed in holding invalid the predeces
sor of paragraph 51(e):
Had the words "penal institution" been defined to mean only
a federal penitentiary, and had "any offence" been defined to
mean an indictable offence, the result which I am about to
announce would have been radically different. In my view the
proportionality test referred to in Oakes would then have been
weighted in favor of disqualification."
On an appeal from that decision, Philp J.A. while
agreeing "dubitante" with the Chief Justice that
the voting disqualification was saved by section 1
of the Charter, said that:
My doubt arises from the broad sweep of the disqualification,
affecting all inmates in any penal institution, regardless of the
nature of the offences for which they were convicted and
regardless of the length of their sentences. 34
Finding the comparable Ontario law to be invalid,
Bowlby J. held in Grondin v. Ontario (Attorney
General):
In addition I note that s. 16 of the Election Act, 1984,
applies to any and all inmates under sentence of imprisonment
on the date of an election. The range of such inmates includes
prisoners sentenced to incarceration for a one-week period for
failure to pay a fine as well as those sentenced for a period of
several years for the commission of more heinous offences. The
date of an election, being a fortuitous event in relation to a
prisoner's term of incarceration, may occur during the one-
week prison term of an inmate convicted for a regulatory
offence while not occurring during the several-year prison term
of an inmate convicted of a more serious offence. Therefore,
there is an arbitrary aspect in the effect of s. 16 of the Election
Act, 1984, such that it fails to satisfy the proportionality test
formulated in Oakes, supra. 35
32 (1986), 39 Man. R. (2d) 107 (Q.B.), at p. 111.
" As quoted in the Manitoba Court of Appeal decision in
this case, supra, note 6 at p. 183.
34 Ibid., at p. 188.
35 (1988), 65 O.R. (2d) 427 (H.C.), at p. 432.
I respectfully adopt the reasoning of these learned
judges.
I therefore conclude that paragraph 51(e)
impairs the right granted to the plaintiff under
section 3 of the Charter, and to the extent that its
objective is valid it does so by means which lack
proportionality. It is thus not justified under sec
tion 1 of the Charter. Paragraph 51(e) will there
fore be declared invalid.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.