A-225-91
Her Majesty the Queen (Appellant) (Defendant)
v.
Walter Stanley Belczowski (Respondent) (Plaintiff)
INDEXED AS: BELCZOWSEI Y. CANADA (C.A.)
Court of Appeal, Pratte, Hugessen and Desjardins
JJ.A.—Edmonton, January 28; Ottawa, February 17,
1992.
Constitutional law — Charter of Rights — Democratic
rights — Convicts denied right to vote by Canada Elections
Act, s. 51(e) — Whether disqualification justified by Charter, s.
I — Application of test in R. v. Oakes — Test modified by sub
sequent case law — Test not misapplied by Trial Judge herein
— Charter, s. 3 right to vote clearly worded, not requiring
judicial interpretation — Right to vote going to legitimacy of
free and democratic society, more in need of constitutional
pmtection than other guaranteed rights — Legislative purpose
of s. 51(e) considered — None apparent upon textual analysis
— Crown arguing s. 51(e) having 3 objectives: (1) maintain
sanctity of franchise; (2) preserve integrity of voting process;
(3) sanction offenders — Alleged objectives symbolic, abstract
— While legislation may legitimately have symbolic objective,
Oakes test whether `pressing and substantial" — Doubtful
symbolic objective can justify abrogation of constitutional
rights — S. 51(e) not having objectives claimed for it — Arbi
trary, unfair, based on irrational considerations — Over- and
under-inclusiveness of provision — Failing proportionality
test.
Elections — Canada Elections Act, s. 51(e) providing penal
institution inmates shall not vote at an election — Legislation
held to infringe Charter, s. 3 in Gould — Whether disqualifica
tion justified by Charter, s. 1 — Right to vote going to founda
tion, legitimacy of democratic society — More in need of con
stitutional protection than other guaranteed rights — S. 51(e)
bearing no logical relationship to objectives of other
paragraphs — No legislative purpose apparent from textual
analysis — Objective of preserving integrity of voting process
unrelated to practicalities of convicts voting — Even Crown
unclear as to s. 51(e)'s true objective — Legislation too broad,
narrow to ensure decent, responsible citizenry — Holdover
from time when thought, for security, administrative reasons,
impossible convicts should vote — Right taken away in irra
tional pattern: those incarcerated on enumeration or voting
day regardless of sentence.
Penitentiaries — Canada Elections Act, s. 51(e) disqualify
ing every penal institution inmate from voting at election —
Infringing Charter, s. 3 right to vote — Whether justified by
Charter, s. 1 — Question as to true objective of s. 51(e) —
Objective of preserving integrity of voting process unrelated to
practicalities of convicts voting: Crown not invoking adminis
trative, security problems in justification of s. 51(e) — Depriv
ing convicts of vote not ringing declaration of principle but
invisible infringement of group's rights — As to objective of
punishment, legislation unrelated to nature of conduct pun
ished — Legislation historic holdover from time when thought
impossible, for security reasons, convicts should vote — True
objective to satisfy widely held stereotype of convicts as no-
good, sub-human life form to be denied all rights.
This was an appeal from a judgment of Strayer J. who
granted declaratory relief and held that paragraph 51(e) of the
Canada Elections Act was contrary to section 3 of the Cana-
dian Charter of Rights and Freedoms. This conflict of legisla
tion has been, in any event, settled by the Federal Court of
Appeal in Attorney General of Canada v. Gould which ruled
that paragraph 51(e) 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. An appeal to the
Supreme Court of Canada was eventually dismissed. There
fore, the only issue for consideration by the Court was whether
the disqualification of prisoners from the right to vote was jus
tified by section 1 of the Charter.
Held, the appeal should be dismissed.
The classic statement of the criteria which must be satisfied
for a limit to be reasonable and demonstrably justified in a free
and democratic society is that of the Supreme Court of Canada
in R. v. Oakes. The test, which looks both to the means and to
the ends of the infringing legislation, has been refined and
slightly modified in two significant aspects. First, the require
ment of a "pressing and substantial" objective for the legisla
tion now applies less strictly to some categories of cases. Sec
ond, the proportionality test will itself vary somewhat,
depending on the nature of the legislation and the kind of bal
ancing of interests which Parliament had to do in enacting it.
Since the right to vote in Charter, section 3 is cast in straight
forward and unambiguous terms requiring no judicial interpre
tation, the Courts should have no difficulty in measuring legis
lation against them with a high degree of certainty. The
requirement of a "pressing and substantial" objective is the
appropriate measure to be used in examining the purpose of
paragraph 51(e).
The first step in applying the Oakes test to the impugned
legislation is to ascertain if its objectives are of "sufficient
importance to warrant overriding a constitutionally protected
right or freedom". The right to vote, which goes to the very
foundations and legitimacy of a free and democratic society,
needs even more constitutional protection than most of the
other guaranteed rights and freedoms. It is so firmly
entrenched in our Constitution that, unlike other protected
rights and freedoms, it is excluded from the override power
afforded to Parliament and the legislatures by subsection 33(1)
of the Charter. Section 51 of the Canada Elections Act, when
read as a whole, seems to have a variety of disparate purposes.
Paragraph (e) stands by itself, bearing no logical relationship to
the objectives underlying the other paragraphs of the section.
One cannot, upon a textual analysis of the section, assign any
legislative purpose to paragraph 51(e). The three objectives
invoked by the appellant, namely to affirm and maintain the
sanctity of the franchise, to preserve the integrity of the voting
process and to sanction offenders, are all symbolic and
abstract. For example, the objective of preserving the integrity
of the voting process has nothing to do with the practicalities
of permitting prisoners to vote: the appellant conceded that
administrative and security problems could not be invoked to
justify paragraph 51(e). While legislation may legitimately
have a purely symbolic objective, the question on the first
branch of the Oakes test is not the legitimacy of the legislative
purpose but its importance, that is to say whether it is "press-
ing and substantial". It is very doubtful whether a wholly sym
bolic objective can ever be sufficiently important to justify the
abrogation of rights which are themselves so important and
fundamental as to have been enshrined in our Constitution.
The purely symbolic objective could not be characterized as
pressing or substantial. Depriving convicts of the vote was not
a ringing and unambiguous public declaration of principle but
an almost invisible infringement of the rights of a group of
persons. The operation of the legislation did nothing to support
the view that its objectives were what the Crown alleges them
to be. If the purpose was to ensure a decent and responsible
citizenry, the legislation was both too broad and narrow. It is
too broad in that the exclusion catches all kinds of offender:
the person imprisoned for inability to pay a fine as well as the
murderer. It is too narrow in that it fails to catch those who,
from illness or incapacity, are institutionalized and unable to
participate fully in the democratic process, and it also over
looks those who, through disinterest or distraction, do not so
participate. With regard to the alleged objective of punishment,
the legislation bears no discernible relationship to the quality
or nature of the conduct being punished. The objectives
advanced by the Crown in support of paragraph 51(e) are
unacceptable; the latter represents nothing more than an his
toric holdover from the time when it was thought, for practical,
security and administrative reasons, that it was simply impossi
ble for convicts to vote. That ground has been abandoned by
the Crown and would in any event be unsustainable under
modern conditions. The true objective of paragraph 51(e) may
have been to satisfy the widely held stereotype of the prison
inmate as a no-good almost sub-human form of life to which
all rights should be indiscriminately denied. That was not an
objective which would satisfy section 1 of the Charter.
The second branch of the Oakes test requires a three-stage
examination of the means adopted by Parliament to attain the
alleged ends. The impugned legislation fails at every stage.
First, paragraph 51(e) is not rationally connected to the alleged
objectives. The fact of being in prison is not, by any means, a
sure or rational indication that the prisoner is not a decent or
responsible citizen: fine defaulters and prisoners of conscience
cannot be described as ipso . facto indecent and irresponsible.
Imprisonment bears no necessary connection to inability to
participate fully in the democratic process and is not a safe or
rational indicator that the prisoner should be further punished
by being deprived of the right to vote as a consequence of his
conduct. On the other hand, the legislation fails to exclude all
manner of persons who are clearly not decent and responsible
citizens, who are unwilling or unable to participate in the pro
cess, or whose conduct merits their being deprived of the
franchise. It is not the imperfection of the application of para
graph 51(e) which is being here invoked but the imperfection
of the text itself. Failing in all its alleged objectives, paragraph
51(e) is arbitrary, unfair and based on irrational considerations.
Nor was the second branch of this part of the test, the require
ment that the legislative measure impair the guaranteed right as
little as possible, met. Not only was the right taken away alto
gether but, because of the very nature of the right to vote itself,
it was taken away in an irregular and irrational pattern. Finally,
paragraph 51(e) could not meet the third branch of the test
which requires an examination of the proportionality between
the effect of the legislation and its objectives. For reasons
already suggested and even assuming the alleged objectives to
be valid, paragraph 51(e) could not be characterized as a mea
sured and proportionate means of achieving them with due
regard for the importance of the rights taken away.
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.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 3, 15.
Constitutional Act, 1791, 31 Geo. III, c. 31 (U.K.)
[R.S.C., 1985, Appendix II, No. 3], s. XXIII.
Criminal Code, R.S.C., 1985, c. C-46.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Gould v. Attorney General of Canada et al., [1984] 2
S.C.R. 124; (1984), 13 D.L.R. (4th) 485; 42 C.R. (3d) 88;
53 N.R. 394; 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; McKinney v. Uni
versity of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R.
(4th) 545; 91 CLLC 17,004; Stoffman v. Vancouver Gen
eral Hospital, [1990] 3 S.C.R. 483; [1991] 1 W.W.R. 577;
(1990), 52 B.C.L.R. (2d) 1; 91 CLLC 17,003.
APPLIED:
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.); Re Hoogbruin et al. and Attorney-Gen
eral of British Columbia et al. (1985), 24 D.L.R. (4th)
718; [1986] 2 W.W.R. 700; 70 B.C.L.R. 1 (C.A.);
Grondin v. Ontario (Attorney General) (1988), 65 O.R.
(2d) 427 (H.C.).
CONSIDERED:
Sauvé v. Canada (Attorney General) (1988), 66 O.R. (2d)
234; 53 D.L.R. (4th) 595 (H.C.).
REFERRED TO:
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; Jolivet and
Barker and The Queen and Solicitor-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.); Lévesque v. Canada
(Attorney General), [1986] 2 F.C. 287; (1985), 25 D.L.R.
(4th) 184 (T.D.); Gould v. Attorney General of Canada,
[1984] 1 F.C. 1119; (1984), 42 C.R. (3d) 78 (T.D.).
APPEAL from a judgment of the Trial Division,
[1991] 3 F.C. 151; (1991), 5 C.R. (4th) 218; 42
F.T.R. 98 granting declaratory relief and holding that
paragraph 51(e) of the Canada Elections Act was
contrary to section 3 of the Charter. Appeal dis
missed.
COUNSEL:
Terrence Joyce, Q.C., and Meg Kinnear for
appellant (defendant).
Richard A. Stroppel for respondent (plaintiff).
SOLICITORS:
Deputy Attorney General of Canada for appel
lant (defendant).
Brimacombe, Sanderman, Stroppel & Finlayson,
Edmonton, for respondent (plaintiff).
The following are the reasons for judgment ren
dered in English by
HUGESSEN J.A.: This is an appeal from a judgment
of Strayer J. in the Trial Division [[1991] 3 F.C. 151]
wherein he granted declaratory relief and held that
the provisions of the Canada Elections Act' disquali
fying prison inmates from voting were contrary to 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.) [R.S.C., 1985,
Appendix II, No. 44]].
There were several issues before Strayer J. The
respondent based his claim on both section 3 and sec
tion 15 of the Charter. The appellant denied that
either of those sections was breached by the legisla
tion and further pleaded that any infringement of
Charter guaranteed rights was justified by section 1.
The appellant also raised an issue in the Trial Divi
sion as to the nature of the relief sought.
In appeal, the issues have been greatly narrowed.
Strayer J. did not accept the respondent's arguments
based on section 15 and that part of the claim was not
pursued before us. The Crown, for its part, aban
doned in appeal its arguments as to the appropriate
ness of the remedy. In addition, while the Crown
urged that the legislation did not run afoul of section
3 of the Charter, we did not call upon the respondent
to answer on this point. There remains, thus, only the
question of section 1 justification.
At the time the proceedings were commenced in
the Trial Division, the relevant disqualification was
found in paragraph 14(4)(e) of the Canada Elections
Act. 2 By the time the case came to trial, the Revised
Statutes of Canada, 1985, had come into effect and
1 R.S.C., 1985, c. E-2.
2 R.S.C. 1970 (1st Supp.), c. 14.
the relevant exclusion, in identical terms, is now
found in paragraph 51(e) of the Canada Elections
Act. 3 Throughout his reasons and in the formal judg
ment, Strayer J. referred to the legislation in its cur
rent form, and it is convenient to do likewise here.
Section 51 of the Canada Elections Act reads as
follows:
51. The following persons are not qualified to vote at an
election and shall not vote at an election:
(a) the Chief Electoral Officer;
(b) the Assistant Chief Electoral Officer;
(c) the returning officer for each electoral district during his
term of office, except when there is an equality of votes on a
recount, as provided in the Act;
(d) every judge appointed by the Governor in Council other
than a citizenship judge appointed under the Citizenship Act;
(e) every person undergoing punishment as an inmate in any
penal institution for the commission of any offence;
(h every person who is restrained of his liberty of movement
or deprived of the management of his property by reason of
mental disease; and
(g) every person who is disqualified from voting under any
law relating to the disqualification of electors for corrupt or
illegal practices. [Emphasis added.]
Sections 1 and 3 of the Charter read as follows:
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 elec
tion of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
As I indicated earlier we did not find it necessary
to call on the respondent on the question as to
whether or not paragraph 51(e) of the Canada Elec
tions Act is in conflict with section 3 of the Charter.
Not only are Strayer J.'s reasons on this point above
reproach but the question is, in any event, foreclosed
in this Court by our decision in Attorney General of
Canada v. Gould. 4 In that case, Mahoney J.A., speak
ing for the majority of this Court, said at page 1139:
3 Supra, note 1.
4 [1984] 1 F.C. 1133 (C.A.).
Paragraph 14(4)(e) [51(e)] plainly cannot stand unless, by vir
tue 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. [Emphasis added.]
An appeal to the Supreme Court of Canada 5 was
dismissed in these terms:
We grant leave to appeal the decision of the Federal Court of
Appeal rendered August 31, 1984.
In our view, however, this appeal fails. We generally share
the views expressed by Mr. Justice Mahoney speaking for the
majority of the Federal Court of Appeal. The appeal is accord
ingly dismissed.
This brings us to the question of whether or not the
disqualification of prisoners from the right to vote is
justified by section 1. The principles are well known
and have been many times stated. The test is a two-
stage one and looks both to the means and to the ends
of the infringing legislation. The classic statement is
in R. v. Oakes: 6
To establish that a limit is reasonable and demonstrably jus
tified in a free and democratic society, two central criteria must
be satisfied. First, the objective, which the measures responsi
ble for a limit on a Charter right or freedom are designed to
serve, must be "of sufficient importance to warrant overriding
a constitutionally protected right or freedom": R. v. Big M
Drug Mart Ltd., supra, at p. 352. The standard must be high in
order to ensure that objectives which are trivial or discordant
with the principles integral to a free and democratic society do
not gain s. 1 protection. It is necessary, at a minimum, that an
objective relate to concerns which are pressing and substantial
in a free and democratic society before it can be characterized
as sufficiently important.
s Gould v. Attorney General of Canada et al., [1984] 2
S.C.R. 124, Dickson C.J. The Gould case is too often over
looked by those who like to criticize our judicial system for its
inability to react quickly when necessary. The matter was
heard in the Trial Division on Tuesday and Wednesday, August
28 and 29, 1984, with judgment rendered the latter day. The
appeal to this Court was heard on Thursday, August 30, 1984,
and judgment rendered the following day. On the next follo
wing judicial day, September 4, 1984, (Monday, September 3,
1984, being the Labour Day holiday) the application for leave
to appeal and the appeal itself were heard and disposed of in
the Supreme Court of Canada.
6 [1986] 1 S.C.R. 103, at pp. 138, 139 and 140, Dickson C.J.
Second, once a sufficiently significant objective is recog
nized, then the party invoking s. 1 must show that the means
chosen are reasonable and demonstrably justified. This
involves "a form of proportionality test": R. v. Big M Drug
Mart Ltd., supra, at p. 352. Although the nature of the propor
tionality test will vary depending on the circumstances, in each
case courts will be required to balance the interests of society
with those of individuals and groups. There are, in my view,
three important components of a proportionality test. 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., supra, at p. 352. Third,
there must be a proportionality between the effects of the mea
sures which are responsible for limiting the Charter right or
freedom, and the objective which has been identified as of
"sufficient importance".
With respect to the third component, it is clear that the gen
eral effect of any measure impugned under s. I will be the
infringement of a right or freedom guaranteed by the Charter;
this is the reason why resort to s. 1 is necessary. The inquiry
into effects must, however, go further. A wide range of rights
and freedoms are guaranteed by the Charter, and an almost
infinite number of factual situations may arise in respect of
these. Some limits on rights and freedoms protected by the
Charter will be more serious than others in terms of the nature
of the right or freedom violated, the extent of the violation, and
the degree to which the measures which impose the limit
trench upon the integral principles of a free and democratic
society. Even if an objective is of sufficient importance, and
the first two elements of the proportionality test are satisfied, it
is still possible that, because of the severity of the deleterious
effects of a measure on individuals or groups, the measure will
not be justified by the purposes it is intended to serve. The
more severe the deleterious effects of a measure, the more
important the objective must be if the measure is to be reasona
ble and demonstrably justified in a free and democratic society.
The Oakes test has been refined and slightly modi
fied with the passage of time in two significant
respects. In the first place, it appears now that the
requirement of the "pressing and substantial" objec
tive for the legislation has been slackened somewhat
for some categories of cases. The comments of Mcln-
tyre J. in Andrews v. Law Society of British Colum-
bia, 7 although dissenting on the question of section 1
justification, seem to have found favour:
In Oakes, it was held that to override a Charter guaranteed
right the objective must relate to concerns which are "pressing
and substantial" in a free and democratic society. However,
given the broad ambit of legislation which must be enacted to
cover various aspects of the civil law dealing largely with
administrative and regulatory matters and the necessity for the
Legislature to make many distinctions between individuals and
groups for such purposes, the standard of "pressing and sub
stantial" may be too stringent for application in all cases. To
hold otherwise would frequently deny the community-at-large
the benefits associated with sound social and economic legisla
tion. In my opinion, in approaching a case such as the one
before us, the first question the Court should ask must relate to
the nature and the purpose of the enactment, with a view to
deciding whether the limitation represents a legitimate exercise
of the legislative power for the attainment of a desirable social
objective which would warrant overriding constitutionally pro
tected rights. [Emphasis added.]
Second, there has been a recognition that the pro
portionality test will itself vary somewhat, depending
on the nature of the legislation and the kind of bal
ancing of interests which Parliament itself may have
been called upon to do in enacting it:
The approach to be followed in weighing whether a law
constitutes a reasonable limit to a Charter right has been stated
on many occasions beginning with R. v. Oakes, supra, and I
need merely summarize it here. The onus of justifying a limita
tion to a Charter right rests on the parties seeking to uphold the
limitation. The starting point of the inquiry is an assessment of
the objectives of the law to determine whether they are suffi
ciently important to warrant the limitation of the constitutional
right. The challenged law is then subjected to a proportionality
test in which the objective of the impugned law is balanced
against the nature of the right, the extent of its infringement
and the degree to which the limitation furthers other rights or
policies of importance in a free and democratic society.
This balancing task, as the Court recently stated in United
States of America v. Cotroni, [1989] 1 S.C.R. 1469, at pp.
1489-90, should not be approached in a mechanistic fashion.
For, as was there said, "While the rights guaranteed by the
Charter must be given priority in the equation, the underlying
values must be sensitively weighed in a particular context
against other values of a free and democratic society sought to
be promoted by the legislature." Indeed, early in the develop
ment of the balancing test, Dickson C.J. underlined that "Both
in articulating the standard of proof and in describing the crite
ria comprising the proportionality requirement the Court has
7 [1989] 1 S.C.R. 143, at p. 184.
been careful to avoid rigid and inflexible standards"; see R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-
69. Speaking specifically on s. 15 in Andrews v. Law Society of
British Columbia, at p. 198, I thus ventured to articulate the
considerations to be borne in mind:
The degree to which a free and democratic society such as
Canada should tolerate differentiation based on personal
characteristics cannot be ascertained by an easy calculus.
There will rarely, if ever, be a perfect congruence between
means and ends, save where legislation has discriminatory
purposes. The matter must, as earlier cases have held,
involve a test of proportionality. In cases of this kind, the
test must be approached in a flexible manner. The analysis
should be functional, focussing on the character of the clas
sification in question, the constitutional and societal impor
tance of the interests adversely affected, the relative impor
tance to the individuals affected of the benefit of which they
are deprived, and the importance of the state interest.
I should add that by state interest, here I include not only those
where the state itself is, in the words of the majority in Irwin
Toy Ltd. v. Quebec (Attorney General), [ 1989] 1 S.C.R 927, at
p. 994, "the singular antagonist", typically prosecuting crime,
but also where the state interest involves "the reconciliation of
claims of competing individuals or groups or the distribution
of scarce ... resources". l shall have more to say about this
later. ,
(McKinney v. University of Guelph, [1990] 3 S.C.R.
229, at pages 280-281, La Forest J.)
As in McKinney, it is important in considering the issues raised
by a case like the present to note that judicial evaluation of the
state's interest will differ depending on whether the state is the
"singular antagonist" of the person whose rights have been
violated, as it usually will be where the violation occurs in the
context of the criminal law, or whether it is instead defending
legislation or other conduct concerned with "the reconciliation
of claims of competing individuals or groups or the distribu
tion of scarce government resources". See Irwin Toy Ltd. v.
Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 994. In
the former situation, the courts will be able to determine
whether the impugned law or other government conduct is the
"least drastic means" for the achievement of the state interest
with a considerable measure of certainty, given their familiar
ity with the values and operation of the criminal justice system
and the judicial system generally. As this Court has noted in
Irwin Toy, however, the same degree of certainty may not be
achievable in the latter situation.
(Stoffman v. Vancouver General Hospital, [1990] 3
S.C.R. 483, at pages 521-522, La Forest J.)
The appellant argues that Strayer J. erred and mis
applied the test, as laid down in Stoffman and McKin-
ney, supra, when he held that the government here
was indeed in the position of "singular antagonist" to
the respondent. This is how the appellant's argument
is stated:
In the case at bar, the State is neither the singular antagonist
nor is the context criminal law. Rather, this is a case in which
the legislature must balance the competing claims of inmates
to vote with the claims of society at large to preserve the sanc
tity of the franchise and to sanction offenders for violating the
social contract.
(Memorandum of fact and law of the Deputy Attor
ney General of Canada, page 23.)
I do not agree.
While it is true that the disqualification of prison
ers from the right to vote is not strictly speaking a
part of the criminal law, it is, in my view, far more
analogous to legislation for dealing with and punish
ing criminals than to the kind of social legislation
mentioned by La Forest J. in the above quotations. In
disputes centered around compulsory retirement
(Stoffman and McKinney, supra), or the rights of non-
citizens to practice law (Andrews, supra), or even the
control of advertising directed to children (Irwin
Toy), it is relatively simple to identify competing
groups each of which constitutes only a part of the
body politic. To say, however, as the appellant does
in the above quoted extract, that the legislation, here
under review, balances the claims of the respondent
with those of "society at large", is surely to say no
more than that the state, which represents the latter,
has interests directly opposed to those targeted by the
impugned legislation. This is surely most nearly com
parable to the case where the state, representing soci
ety at large, decrees that certain types of conduct are
forbidden and prosecutes with a view to punishing
those who breach the proscription.
What is more, the right to vote in section 3 of the
Charter (and the kindred rights set out in sections 4
and 5) are cast in straightforward and unambiguous
terms singularly amenable to judicial interpretation.
Indeed, it might be more accurate to state that they
require no interpretation at all. The courts should
have no difficulty in measuring legislation against
them with a high degree of certainty and it is very
difficult to see how such legislation could raise any
question of reconciliation of competing claims or the
distribution of limited resources.
For these reasons I am of opinion that this case is
far more closely analogous to Oakes than to Andrews.
Accordingly, it is also my view that the requirement
of a "pressing and substantial" objective is the appro
priate measure to be used in examining the purpose
of paragraph 51(e).
I turn now to the application of the Oakes test
itself. The first step is to ascertain if the objectives of
the impugned legislation are of "sufficient impor
tance to warrant overriding a constitutionally pro
tected right or freedom". 8 It is significant in this con
nection to note the rather special status of the
constitutionally protected right which is here in issue.
The framers of the Charter recognized that the right
to vote, going as it does to the very foundations and
legitimacy of a free and democratic society, is, if any
thing, even more in need of constitutional protection
than most of the other guaranteed rights and free
doms, no matter how important the latter may be. The
point was well put in the Court of Appeal of British
Columbia: 9
By way of preface it is to be noted that the right to vote is a
democratic right so strongly entrenched in the Charter that
unlike the fundamental freedoms set out in s. 2, and the legal
rights set forth in ss. 7 to 15, it is not subject to the override
clause afforded the Legislature by s. 33(1). Accordingly, sub
ject only to obvious exclusions such as minors or mental
incompetents, the right to vote is firmly entrenched in our
Constitution.
8 R. v. Big M Drug Mart Ltd. et al., [1985] I S.C.R. 295, at
p. 352, Dickson J.
9 Re Hoogbruinn et al. and Attorney-General of British
Columbia et al. (1985), 24 D.L.R. (4th) 718, at p. 720.
It was echoed by the Ontario High Court in
Grondin v. Ontario (Attorney General):'°
The right to vote has been guaranteed to every Canadian citi
zen by s. 3 of the Charter. If a limitation on such a fundamental
aspect of democracy had been contemplated by those who
framed our constitution, I am of the view that such a limitation
could have been specifically provided for and made infinitely
clear. By way of comparison, the exclusion of prisoners from
the franchise is specifically sanctioned by the Fourteenth
Amendment to the United States Constitution. In contrast,
however, the right to vote is so firmly entrenched in the Cana-
dian Charter that, unlike other protected rights and freedoms, it
is excluded from the override power afforded to parliament and
the legislature by s. 33(1) of the Charter.
What then is the objective or legislative purpose of
paragraph 51(e)? Certainly it is not immediately
apparent and does not leap from the page on a read
ing of the section as a matter of first impression.
Indeed, section 51, when read as a whole, seems to
have a variety of disparate purposes.
For convenience I reproduce paragraphs (a) to (g):
51....
(a) the Chief Electoral Officer;
(b) the Assistant Chief Electoral Officer;
(c) the returning officer for each electoral district during his
term of office, except when there is an equality of votes on a
recount, as provided in the Act;
(d) every judge appointed by the Governor in Council other
than a citizenship judge appointed under the Citizenship Act;
(e) every person undergoing punishment as an inmate in any
penal institution for the commission of any offence;
(D every person who is restrained of his liberty of movement
or deprived of the management of his property by reason of
mental disease; and
(g) every person who is disqualified from voting under any
law relating to the disqualification of electors for corrupt or
illegal practices.
The objective of the exclusions mentioned in
paragraphs (a), (b) and (c) seems obviously to be to
guarantee the fairness of the electoral process. To
adopt a sporting analogy, the referee, umpire and
linesmen are not to take part in the game.
10 (1988), 65 O.R. (2d) 427, at p. 430, Bowlby J.
The objective of the exclusion in paragraph (d) is
quite different. It is aimed not at the fairness of elec
tions but at the appearance of impartiality and free
dom from partisanship of those who are called upon
to decide disputes between the state and its citizens.
Paragraph (f), by contrast, seems to have for its
purpose a guarantee of an absolute minimum of intel
lectual capacity in those who exercise the franchise.
Finally, paragraph (g) is manifestly a punitive pro
vision attaching to past conduct related to the electo
ral process itself.
What are we to make of paragraph (e) which is
located in the middle of this list? It seems to bear no
logical relationship to the objectives underlying
paragraphs (a), (b) and (c) nor to that underlying par
agraph (d). It equally cannot today share a common
purpose with paragraph (f), although it may well be
the case that historically, and before the advent of
proxy and mail votes, it was thought to be simply
impossible that anyone deprived of his liberty of
movement, for whatever reason, would be physically
able to cast a vote. Finally, there may be a superficial
resemblance between the objectives of paragraphs (e)
and (g) although it should be noted that the latter
exclusion is expressly framed in terms of fitting the
punishment to the crime in a way that is wholly
absent from the former.
In my view, and based solely upon a textual analy
sis of the section, one cannot, with confidence, assign
any legislative purpose to paragraph 51(e). The
appellant, however, asserts, based on the opinion evi
dence given at trial by a professor of political sci
ence, that the paragraph has three objectives as fol
lows:
(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.
The appellant adopts these objectives and expands
on them in the following manner.
The objective of maintaining the sanctity of the
franchise is based on the need for a liberal democracy
to have a "decent and responsible citizenry" which
will voluntarily abide by the laws, or at any rate most
of them. The views of Van Camp J. in Sauvé v.
Canada (Attorney General» are quoted with
approval:
However, it seems to me that Parliament was justified in
limiting the right to vote with the objective that a liberal demo
cratic regime requires a decent and responsible citizenry. Such
a regime requires that the citizens obey voluntarily; the practi
cal efficacy of laws relies on the willing acquiescence of those
subject to them. The state has a role in preserving itself by the
symbolic exclusion of criminals from the right to vote for the
lawmakers. So also, the exclusion of the criminal from the
right to vote reinforces the concept of a decent responsible citi
zenry essential for a liberal democracy.
The objective of preserving the integrity of the vot
ing process has nothing to do with the practicalities
of permitting prisoners to vote: the appellant con
cedes that administrative and security problems can
not be invoked to justify paragraph 51(e).
(Parenthetically, it should be noted here that the
appellant has effected a remarkable volte-face on this
point. One of the principal grounds of the vigorous
defence that was raised in Gould v. Canada, supra,
was precisely the security and administrative
problems that allegedly would arise if inmate voting
were permitted. 12 It also seems to have been relied on
in other cases dealing with prisoners' right to vote. 13
That it has now been abandoned lends some credence
to the view that the Crown itself does not know what
the true objective of paragraph 51(e) really is.)
In any event the Crown's present position is that
one of the purposes of disqualifying prisoners is to
ensure that only those who can truly participate in the
democratic process should be allowed to cast ballots.
Prisoners being isolated from society at large, and
being temporarily removed from the local communi
ties and constituencies of which other voters form
part, cannot participate fully in the debate, discussion
11 (1988), 66 O.R. (2d) 234 (H.C.), at p. 238.
12 See the reasons for judgment of the Trial Division, [ 1984]
1 F.C. 1119, at p. 1125.
13 See Jolivet and Barker and The Queen and Solicitor-
General of Canada (1983), I D.L.R. (4th) 604 (B.C.S.C.),
Taylor J.; Lévesque v. Canada (Attorney General), [1986] 2
F.C. 287 (T.D.), Rouleau J.
and interchange which are essential to the democratic
process.
Finally, the objective of sanctioning offenders is
said to arise from the state's legitimate interest in
punishing those who disobey the law and in expres
sing collective disapproval of deliberate actions in
breach of the social contract.
In his reasons for judgment, Strayer J. subjected
each of these alleged objectives to rigorous and
searching analysis. He concluded that objectives (a)
and (b) could not realistically be seen as the purpose
of paragraph 51(e) and were, in any event, not suffi
ciently serious to justify deprivation of a Charter
guaranteed right. Objective (c), sanction or punish
ment, he found to be more plausible and not invalid
in and of itself.
The appellant takes issue with the manner in which
Strayer J. approached the first branch of the Oakes
test, asserting that it is not proper to isolate each
alleged objective and consider them individually one
by one. Rather, it is said, a Court should look at the
alleged objectives comprehensively and determine
whether together and in combination they are suffi
ciently serious. Without saying that Strayer J. was
wrong, I am quite content to adopt the approach sug
gested; I find, however, that in the present case it
gives but cold comfort to the Crown.
Viewed together and collectively, the most striking
point about the alleged objectives of paragraph 51(e)
is that they are all symbolic and abstract. The appel
lant admits as much, but maintains that this fact does
not prevent them from being legitimate objectives for
legislation. With respect, it seems to me that this
misses the mark. It is, of course, true that legislation
may legitimately have a purely symbolic objective.
The question on the first branch of the Oakes test,
however, is not the legitimacy of the legislative pur
pose but rather its importance, that is to say whether
it is "pressing and substantial". For my part, I must
say that I have very serious doubts whether a wholly
symbolic objective can ever be sufficiently important
to justify the taking away of rights which are them
selves so important and fundamental as to have been
enshrined in our Constitution. To accept symbolism
as a legitimate reason for the denial of Charter rights
seems to me to be a course fraught with danger. Even
on the lower test of a "desirable social objective"
suggested in Andrews, I would have thought that such
objective would have to translate into some real
intended benefit and not merely some abstract or
symbolic notion. To adopt the other course would, it
seems to me, expose us to Voltaire's famous jibe that
the English had executed Admiral Byng on his own
quarterdeck "pour encourager les autres". 14
Assuming, however, for the sake of argument, that
a purely symbolic objective may be sufficiently seri
ous in some circumstances, it is my view that it can
not be so in this case. Depriving prisoners of the vote
is not a ringing and unambiguous public declaration
of principle. On the contrary it is an almost invisible
infringement of the rights of a group of persons who,
as long as they remain inside the walls are, to our
national disgrace, almost universally unseen and
unthought of. If, as I think, therefore, the alleged
symbolic objective is one whose symbolism is lost on
the great majority of citizens, it is impossible to char
acterize that objective as pressing or substantial.
I would also note, in considering the alleged objec
tives of paragraph 51(e) collectively, that to conclude
that they are indeed the purposes which Parliament
had in mind in adopting the legislation requires an
act of faith. I have already indicated that there is
nothing in the text of the legislation itself to give any
clue to its purpose. I would now add that the opera
tion of the legislation does nothing to support the
view that its objectives are what the Crown alleges
them to be. If the purpose is to ensure a decent and
responsible citizenry, the legislation is both too broad
and narrow. It is too broad in that the exclusion
catches not only the crapulous murder but also the
fine defaulter who is in prison for no better reason
than his inability to pay. The same is true of the
alleged objective relating to the integrity of the pro
cess: paragraph 51(e) catches those who are serving
14 Candide (1759).
their sentences in an open prison setting where they
live in the midst of their communities; it fails to catch
those who, from illness or incapacity, are institution
alized and unable to participate fully in the demo
cratic process. It also, as Strayer J. rightly pointed
out, entirely overlooks those who through disinterest
or distraction do not so participate. Finally, with
regard to the alleged objective of punishment, the
legislation bears no discernible relationship to the
quality or nature of the conduct being punished.
Indeed, on a reading of the text of paragraph 51(e), it
is difficult not to conclude that, if it is imposing pun
ishment, such punishment is for imprisonment rather
than for the commission of an offence.
In this latter respect, it is interesting to note that
paragraph 51(e) differs starkly from its earliest Cana-
dian ancestor, being section XXIII of the Constitu
tional Act, 1791 [31 Geo. III, c. 31 (U.K.) [R.S.C.,
1985, Appendix II, No. 3]]:
XXIII. And be it also enacted by the Authority aforesaid,
That no Person shall be capable of voting at any Election of a
Member to serve in such Assembly, in either of the said Prov
inces, or of being elected at any such Election, who shall have
been attainted for Treason or Felony in any Court of Law
within any of his Majesty's Dominions, or who shall be within
any Description of Persons disqualified by any Act of the Leg
islative Council and Assembly of the Province, assented to by
his Majesty, his Heirs or Successors.
A denial of the right to vote for persons convicted of
treason or felony can readily be understood as a pun
ishment for those crimes. A similar denial imposed
only on those who are actually in prison looks more
like a consequence of that condition than a sanction
for the conduct which brought it about in the first
place.
Given the foregoing comments, I am not prepared
to accept the objectives advanced by the Crown in
support of paragraph 51(e). Indeed, it seems to me far
more likely, as I have suggested earlier, that the legis
lation represents nothing more than an historic holdo
ver from the time when it was thought, for practical,
security and administrative reasons, that it was quite
simply impossible that prisoners should vote. As I
have indicated that ground has now been abandoned
by the Crown and would in any event be unsustain-
able in modern conditions. An examination of Sched-
ule II to the Canada Elections Act, and of its detailed
provisions for permitting voting by service person
nel, public servants and veterans, in circumstances
where it was once thought impossible to conduct a
poll, demonstrates the invalidity of such a justifica
tion for the exclusion.
Alternatively, and far less commendably, it would
appear to me that the true objective of paragraph
51(e) may be to satisfy a widely held stereotype of
the prisoner as a no-good almost sub-human form of
life to which all rights should be indiscriminately
denied. That, it need hardly be said, is not an objec
tive which would satisfy section 1 of the Charter.
This brings me to the second branch of the Oakes
test which requires a three-stage examination of the
means adopted by Parliament to attain the alleged
ends. In my view, and for reasons which have already
been suggested in the examination of the objectives,
this legislation fails at every stage.
First, there is the requirement that paragraph 51(e)
be rationally connected to the alleged objectives. It is
not. The fact of being in prison is not, by any means,
a sure or rational indication that the prisoner is not a
decent and responsible citizen. I have already men
tioned fine defaulters who shockingly constituted a
huge proportion of our prison population. By no
means can they be described as ipso facto indecent
and irresponsible. It is also not impossible in our
society for persons to be in prison for reasons of con
science and I doubt that as a society we feel that such
persons are not decent and responsible whatever else
we might think of them.
By the same token, and for the reasons indicated,
imprisonment bears no necessary connection to
inability to participate fully in the democratic process
and is not, in and of itself, a safe or rational indicator
that the prisoner should be further punished by being
deprived of his vote as a consequence of the conduct
which has led to his being in prison.
On the other side of the coin of rational connection
is the fact that the legislation fails to exclude all man
ner of persons who are clearly not decent and respon
sible citizens, who are unwilling or unable to partici
pate in the process, or whose conduct merits their
being deprived of the franchise. To this the appellant
counters that imperfection of application does not
invalidate the law: if many, or even most criminals
go uncaught and unpunished, that does not make the
Criminal Code [R.S.C., 1985, c. C-46] any less valid.
With respect, it appears to me that the argument is
specious. It is not the imperfection of the application
of paragraph 51(e) which is being here invoked but
the imperfection of the text itself. The Criminal Code
proscribes and punishes all crimes and criminals even
if the police and the courts do not; paragraph 51(e),
even if perfectly applied, would still fail dismally in
all its alleged objectives. In short, and to recall the
words of Oakes, paragraph 51(e) is arbitrary, unfair
and based on irrational considerations.
There is little that need to be said of the second
branch of this part of the test which requires that the
legislative measure impair the guaranteed right as lit
tle as possible. I would only note that, not only is the
right taken away altogether, but, because of the very
nature of the right to vote itself, it is taken away in an
irregular and irrational pattern: persons who happen
to be in prison on enumeration day, or voting day, no
matter how short their sentence, lose the right to vote;
others may serve up to four years and three hundred
and sixty-four days in prison and never be deprived
of the franchise at all.
Finally, the third branch of the test requires an
examination of the proportionality between the effect
of the legislation and its objectives. For reasons
which have already been suggested, paragraph 51(e)
cannot meet this test. I have already commented on
the over- and under-inclusiveness of the legislation
when viewed in the light of its alleged objectives. I
have also indicated that the legislation makes no
attempt to weigh, assess or balance the seriousness of
the conduct which may have resulted in imprison
ment and the resultant deprivation of a Charter guar
anteed right. Finally, I have indicated that as a neces
sary result of the legislation, and not merely of its
imperfect application, its actual operation in any par
ticular case will depend on wholly fortuitous circum
stances which bear no relationship either to the
alleged objectives or to the conduct of the prisoners
whose rights are thus taken away. Even assuming the
alleged objectives to be valid, paragraph 51(e) simply
cannot be characterized as a measured and propor
tionate means of achieving them with due regard for
the importance of the rights taken away.
To summarize, it is my view that paragraph 51(e)
does not have the objectives which are claimed for it.
While I do not deny that at least some of those objec
tives, notably that of punishing offenders, may be
legitimate, neither the text nor the operation of the
legislation supports the view that this is in fact what
Parliament was aiming at. Even assuming the validity
and legitimacy of the ends, the means are irrational,
arbitrary and disproportionate. I conclude, as did
Strayer J., that paragraph 51(e) impairs the rights
granted by section 3 of the Charter and that it is not a
reasonable limit thereon such as can be demonstrably
justified in a free and democratic society.
I would dismiss the appeal with costs.
PRATTE J.A.: I agree.
DESJARDINS J.A.: I agree.
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