Democracy and human rights form a very vital and sensitive part of any country’s constitution. Consequently, there are constitutional provisions against violations of such tenets. Democracy may simply refer to the rule of the people, by the people and for the people; whereby voting rights refer to the boundaries defining the ability of an individual to freely and fairly participate in an election. As such, Canada is a democratic state that holds onto the rights to vote; it is the basis of the Canadian democracy. Moreover, the Section 3 of the Canadian Charter of Rights and Freedom gives every Canada the right to vote.
However, the section 3 of the Charter gives provisions for “reasonable limits” on the rights to vote. This is generally in the event of a procedural democratic justification by a society that is deemed to be free and fair. There have been other cases in the past exposing various disqualifications leading to the abandonment. On the other hand, the Canada Elections Act denies the right to vote to “[e]very person who is imprisoned in a correctional institution serving a sentence of two years or more.” Prior to the adoption of the Charter, the provincial legislature and the national assembly directly determined the voting rights of the inmates.
The Adoption of the Canadian Charter of Rights and Freedom gave the disenfranchised groups the right to vote; giving provisions for the mentally challenged and the federal court judges. However, the right to vote by the inmates was only grated by some provinces. The Supreme Court’s decision in 1993 rendered the ban on the inmates voting as unconstitutional thereby prompting an amendment to the Canada Elections Act. This is what led to the lifting the ban on the inmates serving less than two years in prison granting the right to vote.
Sauve v Canada
This case involving Sauve as the Appellant and the Attorney General was originally presented in 1993 whereby the appellant challenged the ban on the inmates in regards to the right to vote. This lead to the alteration of the law by lifting of the ban on the voting rights to the previously disqualified inmates serving less than two years in prison. This decision was made by the judges that maintained that it was a matter of common sense in determining the reasonable persons to participate in the voting process.
This was however was again challenged by Sauve in 2002; proposing the lifting of the ban on voting rights to all inmates, including those that served even more than two years in prison. The Attorney General failed to dispute the allegations of the appellant concerning the voting rights. However, the section 2 of the constitution gave the government rights to legally act to limit the Charter rights of individuals. Based on that, the government stated the reasons for holding to the ban on voting rights of inmates (serving more than two years in prison) as follows:
First, such a ban would be justifiable, as provided for in the Charter since it would serve the purposes as best stated by the parliament. Such included the need to promote the respect for the law as well as civic responsibility. Under section 33 of the Canadian Constitution, the Parliament is authorized to override some of the sections of the Charter, what is commonly referred to as the ‘notwithstanding clause’. Moreover, under the same section, the rights of the individual citizens to vote remains peculiar because it cannot be suspended under the notwithstanding act.
Under section 12 of the constitution, every prisoner is protected from either cruel or unusual treatment or punishments by any parties. Sauve argued that the move to deny the inmates the right to vote was cruel and a form of punishment that negates the provisions of the section 12 of the Canadian constitution. Moreover, he argued that section 51 (e) of the same constitution does not meet the provisions for the dual requirements in case of the execution of a legitimate punishment.
Sauve believed that the section 1 legally allowing the government to limit the charter rights was overboard thereby ultimately over reaching its grounds beyond the protected rights under section 3. At the same time, it was over reaching beyond the protected rights under section 33 providing for no suspension on the rights to vote under section 33; stating that such suspension does not fall under the notwithstanding clause.
The legal Issue in this case was whether or not section 51 (e) of the constitution was in deed overbroad, and as such infringes sections 3 and 33 of the Canadian Charter and if so, does the infringements justifiable under section 1 of the charter. This is a case of an ex inmate seeking democracy and voting rights of inmates whereby he argues that such rights are infringed by the government’s allowance to override certain fundamental provisions both in the Canadian constitution and the Charter for Rights and Freedom. (Sauve 2002).
The court held that voting is quite fundamental to the process of democracy and as such, it cannot be overrun by the government in the event of promoting the civic responsibility of the citizens. This decision was ruled against the government in a 5-4 ruling. Moreover, any ruling to ban the inmates from voting had to proceed from valid legal tests, and not just for any other reason (Canada Elections Act, 2000). Such restrictions had to supersede arbitrary reasons, and far reaching on the basis of necessity.
On the other hand, the decision to limit the voting rights of the inmates would only prevails if the objectives of such actions could not be achieved through any other means; rendering it an action of last resort. The argument by the government that restricting the voting rights of the inmates would help achieve the objective of civic responsibility was rejected by the court, stating that it was more likely to portray a scenario of undermining the rights and freedoms of the inmates that promote civic responsibility.
At the same time, the court ruled thatthe ultimate sign of yielding to the law by any citizen was the ability to participate in the voting process, thus denying them such an opportunity undermined the democratic process as voting is plays fundamental to in the Canadian Constitution which boasts its basis on the principals of equality and inclusiveness. Granting of voting rights remain a sure way of democratic values and social responsibility.
Similarly, the court ruled against the government by stating that the arbitrary fundamental rights need to apply to all the offenders in spite of the individual circumstances facing an offender. As such, the court ruled that there were several benefits of allowing inmates to vote that outweighed the negatives of the voting restrictions. Citing some of the demerits that would accrue due to the ban on voting rights by the inmates, Sauve noted that it would degrade social development which starts by exercising democratic voting rights.
Thus, the Supreme Court of Canada ruled in the favor of the appellant by stating that the government lacked sufficient reasons for denying the inmates the right to vote.
An overbreadth is a law that is said to violate the basic values by being overbroad when the “law goes too far and interferes with some conduct that bears no connections to its objective”. During the court of appeal ruling, Justice McLachlin stated that the Charter rights forms an important part of the Canadian polity and thus cannot be treated as a matter of merit or privilege. As such, giving granting the government chances of manipulation voting rights is a disgrace to the only route to democracy.
She expressed his doubt as to whether the disqualification to vote for an inmate met the ‘pressing and substantial’ purpose. He based his arguments on the proportionality test by stating that the government failed in showing this. Any kind of disqualification by the government ought to be justifiable under the provisions of ‘reasonable limits’. She added that the blanket disqualification failed to meet the required rational for the proportionality test.
Therefore, in dismissing the two-year disqualification as unconstitutional, she stated that it is inappropriate and cannot achieve any compelling purpose. With that it could not serve the purpose of instilling civic responsibility as it did more harm by thwarting the efforts to institute democracy as a means of societal development and transformation.
Justice Gonthier on the other hand argued the government must define its terms in the event that Sauve (1993) failed in the blanket disqualification. This would prompt a dialogue between the courts and the legislature. Such would constitute the periods deemed viable for disqualification. The government needed to prove that the two-year barrier met the minimum threshold and if the move to restrict the inmates from voting was a sufficient teaching tool.
In testing for overbreadth, the law needs to satisfy two requirements. First it needs to determine that the Object of the impugned law. The second step it to determine whether the law deprives an individual of their section 3 rights in cases that do not relate to that object.
In the case of Sauve v Canada, the provisions under section 1of the constitution allowing for the restriction of the voting rights by the government towards the inmates serving terms beyond two years in prison fails to meet its objectives. Section 33 gives for the notwithstanding clause which does not apply to the voting rights. The government had prior held to the fact that such actions would help build the civic responsibilities of the citizens. As such, the law fails to meet its objective since restricting the voting rights of the inmates does not achieve a compelling purpose but instead extends to individuals who need to exercise their democracy through democratic voting process.
The fact that the provision goes ahead to prosecute individuals less inclined to its objectives makes it fail in fulfilling its mandate as provided for in the section three, by giving all the citizens the chance to exercise their voting rights. It therefore infringes people’s rights; doing more harm by restricting the voting rights than it propagates to instil discipline leading to social responsibilities. In other words, it leaves the inmates with a feeling of low self-esteem and unworthiness.
With regard to proportionality, Justice Hugessen argued that the legislation was both over and under- inclusive in regards to the effects and the objectives. Therefore, if the blanket disqualification in Sauve (1993) failed the minimal impairment component of the Oakes test; interprets section 1 of the Charter of Rights and freedoms, stating that rights are guaranteed “subject only to such reasonable limits…” then the government ought to come up with more reasonable justifications for the ban of inmates in regards to their voting rights. It must establish that the benefits of the law outweighs its negative impacts.
The Supreme Court realised that it was impossible to maintain the tradition that had disqualified the inmates from voting. The objective intended by the federal government for such actions could not be determined to be of a compelling purpose and thus could be achieved through other means. Justice McLachnin strongly argued that it was the provisions for the restriction of voting rights was not constitutional, adding that the federal government’s position of determining the ‘right persons’ was more of a common sense ruling that stepped onto the other rights provided for by the constitution.
At the same time, the federal government could not come up with sufficient reasons for the two-year threshold imposed on the inmates regarding their voting rights. The ruling however did draw a difference between disenfranchisement and penalty roles, and in case the government found the ruling unjustifiable, then it needed to define several constitutional provision to prevent future overlaps in determining rulings.
In conclusion, the federal governments must look into other ways of establishing civic responsibility other than holding onto restrictive practices regarding the voting rights of the inmates. The application of section 51 (e) infringed sections 3 and 33 and could not be justified under section 1 of the constitution. Therefore, the tradition of disqualification of inmates from voting could not be maintained leading to lifting of the ban on voting by inmates serving more than two years of imprisonment.
Should inmates be allowed to vote?
Even though the constitution allowed the parliament to override certain portions of the Charter on the rights and freedoms; what we ask ourselves is whether it is justifiable to restrict the prisoners from voting. The society is such a broad structure; and the rules and regulations that are instituted to govern the operations of the citizens should equally apply to all.
To this effect, challenging the voting rights by the federal government with an aim of achieving an objective that can better be achieved through other means is demeaning and belittling the rights of the inmates and therefore infringes them. Again, one is left wondering what roles the legislature plays towards establishing coherence in the face of competition between political and social policies.
Finally, according to the ruling, any form of punishment must be assessed and justified on the basis of a legitimate penal purpose. Such should therefore aim to fulfill the purposes of rehabilitation, retribution, and deterrence. Reviewing the restriction of voting rights for the inmates serving terms going beyond 2 year, it is difficult to establish the role disenfranchisement serves in the rehabilitation, retribution and deterrence of inmates.
Voting remains a right, and not a favor that the federal government grants to its citizens. It is a means to building a democratic society and therefore must not be left in the hands of politicians to manipulate; there are always conflicting interests when it comes to political and social policies. Allowing the inmates to vote makes them be part of the law making process, while limiting their voting rights alienates them.
Does disenfranchisement play any roles in the rehabilitation of inmates? If yes, how?
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss. 7, 11(d).
Canada Elections Act, 2000, c. 9, Section 4 (c), . Accessed 20 February 2007.
Sauve v. Canada (Chief Electoral Officer), 2002 S.C.R.3 519, 2002 S.C.C. 68 (2002).