Q&A with Leonid Sirota: The Working Families Case and the Trouble with the SCC’s Voting Rights Jurisprudence

In this latest Q&A session, CCS summer student Stephen Raitz interviews Professor Leonid Sirota (University of Reading, School of Law) about the recent Ontario Court of Appeal judgment in Working Families — a case about whether Ontario-based spending limits on third party political advertising unjustifiably violate the “informational component” of the right to vote.

 

 

Q: Could you briefly summarize what was at issue in the Ontario Court of Appeal’s recent Working Families decision?

 

 

A: Working Families concerns the constitutionality of Ontario legislation limiting spending by anyone except political parties and candidates on advertisements for or against parties or candidates or addressing issues “that can reasonably be regarded as closely associated with” a party or candidate to (now) roughly $700,000 in the year before an election campaign is due to begin. The main argument, which the Court accepted by 2-1, was that this legislation was contrary to section 3 of the Charter, which protects the right to vote, as (mis)interpreted by the Supreme Court in Harper v Canada (Attorney General). One might think that this would naturally have been a section 2(b) freedom of expression claim, but that was foreclosed because the legislation invokes section 33 of the Charter, aka the “notwithstanding clause,” which ousts the application of section 2(b) ― but not section 3. There was also an argument to the effect that section 33 was not properly invoked, but the court rejects it out of hand, and unanimously.

 

 

Q: How did the majority and dissenting opinions differ in the way they approached section 3 of the Charter?

 

 

A: First, it’s important to note that the ONCA isn’t really interpreting section 3 of the Charter, but rather the Harper majority’s gloss on that provision. One might think that section 3 deals with voting (which isn’t an expressive activity in any meaningful way, whatever the Supreme Court of Canada may have thought of that in Baier) and section 2(b) with electoral campaigning (which obviously is). These are two different provisions addressing different things. But in Harper, the Court confused matters by saying that section 3 also deals with campaigning, albeit through the lens of voters receiving information that will help them decide whom to vote for, rather than by considering the rights of those (parties, candidates, and civil society groups) who would like to persuade the voters. Specifically, Harper reinterprets the section 3 right to vote as a “right to meaningfully participate in the electoral process” (this is consistent with misbegotten SCC precedent) and stipulates that “[t]he right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner” (this is new). To add to the confusion, the discussion in Harper is very cursory, indeed impressionistic. As a result, both ONCA opinions in Working Families — the majority and the dissent — struggle to make sense of it and to place it within the broader framework of Charter case law.

To decide whether “a citizen’s right to exercise his or her vote in an informed manner” is impaired by the legislation at issue, the ONCA majority seizes on what it sees as two “proxies” identified by Bastarache J in Harper (though he doesn’t describe them in this way): first, whether “[s]pending limits [are] carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters,” and second, whether such limits “allow third parties to engage in ‘modest, national, informational campaigns.’” Much of the majority opinion in Working Families is devoted to arguing that the impugned law fails these two tests. It points, in particular, to the fact that there was never a justification given for expanding the limits on political advertising from six months before an election campaign to a whole year (without the expenses ceiling being raised at all), which speaks to a lack of “careful tailoring,” and to the trial judge’s lack of an explicit finding that a “modest informational campaign” was possible within the confines of the law (though the trial judge made no finding to the contrary either). The dissent both disagrees with the majority’s analysis on these specific points and also, perhaps more importantly, rejects reliance on the alleged “proxies” for a section 3 violation identified by the majority. The dissent would instead engage in a more global assessment of whether informed participation is impaired. The dissent also accuses the majority of conflating its section 3 analysis (especially careful tailoring) with what should be happening under section 1, while the majority tries very hard to draw distinctions between these two stages.

To my mind, the dissent’s approach is more in line with what Bastarache J did in Harper, but the majority’s way of dealing with the case is understandable insofar as it tries to inject, if not objectivity, then at least tractability into the analysis. The dissent’s conflation criticism is warranted, but the bigger conflation is in Harper, between section 2(b) and section 3. Everything else flows from there. If the “careful tailoring” language means something, then should we blame the majority for using it? In their different ways, the two opinions are trying to make the best of the very difficult situation the Harper majority opinion put them in.

 

 

Q: The media landscape has evolved immensely since the SCC’s Harper decision. How do you think these changes — the free spread of misinformation on social media, for example — should impact the way that courts interpret and apply section 3 (if at all)?

 

 

A: Part of the premise of the question is misconceived: we know enough about the social media companies’ moderation practices now to tell that they often actively, if seldom successfully, suppress what they regard ― rightly or wrongly ― as misinformation. But be that as it may, I don’t think the (real) changes in media landscape are relevant to the interpretation of section 3, which ― on the Harper approach ― includes a very general, and really quite limited, “right to exercise [one’s] vote in an informed manner” (or more accurately, given that the Charter is only concerned with state action, a right not to be prevented by the government from exercising one’s vote in an informed manner). Profound though they may be, changes in the media landscape occur in spite of the government’s attempt to stand athwart history and yell stop, so it is difficult to see how they affect this right. If indeed the right not to be prevented by the government from being an informed voter was protected in 2004, then there is no reason why section 3 would not protect the same right in 2023. That said, it would be interesting to see how the courts would deal with an argument to the effect that C-18, which predictably resulted in news becoming less available on key online platforms, impairs this right in much the same way as certain provisions of the Criminal Court impaired sex workers’ right to the security of the person in Bedford.

 

 

Q: You’ve provided comments on a similar Australian case (Unions NSW v New South Wales [2019] HCA 1). What could the SCC glean from that decision, if anything, when it hears the Working Families case on appeal?

 

 

A: Nothing much, I would guess. Unions NSW logically enough addressed the implied freedom of political communication under the Australian Constitution. Since in this case Canadian courts cannot consider the freedom of expression issues due to the operation section 33, the SCC will be confined to revisiting the section 3 framework it made up in Harper ― whether to discard it altogether (as I hope, but doubt, it will), or to expound it beyond the cursory explanation given by Bastarache J. In doing so, the SCC, like the ONCA, will probably be at pains to show that it is not simply replicating a section 2(b) analysis. Hence it will probably not find any freedom of expression cases, whether its own, those decided by other Canadian courts, or those from other jurisdictions, helpful. There are comments about the value of civil society campaigns to informing voters in the plurality opinion in Unions NSW, but the SCC already pays lip service to this idea. I do not think it can really go any further under the section 3 framework ― otherwise this will become a duplication of section 2(b), which should be avoided both on principle and, more to the point, in light of the judgment in Toronto (City) v Ontario (Attorney General). If the SCC has occasion to revisit these issues in a more natural way, under a section 2(b) claim, then it should follow the Australians’ rejection of deference to the evidence-free claims made by the government on behalf of legislation that muzzles civil society for the benefit of political parties. But don’t hold your breath for it to happen.

 

Toronto v Ontario: Municipal Elections, Freedom of Expression, and Provincial Authority

Can a province change the number of electoral wards in the middle of a municipal election? According to the recent Supreme Court decision in Toronto (City) v Ontario (Attorney General),[1] the answer is yes.

As the 2018 Toronto municipal elections were well underway, the Ontario government decided to reduce the size of Toronto City Council. The government announced its intention on July 27th, the same day that nominations for the elections closed. Several weeks later, the Better Local Government Act, 2018[2] came into effect, reducing the number of City Council seats from 47 to 25. The Act was challenged in court by the City of Toronto, and the Ontario Superior Court declared the Act invalid. However, the Ontario Court of Appeal disagreed, and thus the election proceeded with 25 wards, as required by the Act.

Despite the election’s end, Toronto appealed the decision of the Ontario Court of Appeal to the Supreme Court. The City of Toronto argued (among other things) that the Act was unconstitutional because it violated rights that are protected by section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter),[3] including candidates’ freedom of expression and voters’ right to effective representation. On October 1, 2021, the Supreme Court ruled in favour of the province, deeming the Better Local Government Act constitutional and legally valid.

Charter Sections 2(b) and 3 and Their Role in Municipal Elections

The Charter issues in this case revolved around:

Section 2(b), which guarantees individuals’ “freedom of thought, belief, opinion and expression.” The City argued that by changing the ward boundaries so close to the election, the provincial government had unjustifiably infringed upon these rights of the candidates.

Section 3, which guarantees that “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.” While section 3 only applies to provincial and federal elections, the City argued that the principle of effective representation that underpins it can be “read into” section 2(b) and made applicable to municipal elections.

By a narrow majority of 5-4, the Supreme Court decided that the province had not violated the section 2(b) rights of the candidates, and that the section 3 right of effective representation does not extend to municipalities via section 2(b).

Provinces Have Constitutional Authority Over Municipalities

To understand the Court’s ruling, it is first important to understand the constitutional status of municipalities. Under section 92(8) of the Constitution Act, 1867,[4] municipalities are under provincial jurisdiction. This means that provinces have the “constitutional authority”[5] to change “municipal institutions”[6] — including the size of city councils — if they so choose.

At the same time, though, provincial laws and actions must still comply with other portions of the Constitution, including the Charter. Accordingly, in this case the question was not whether the Ontario government could restructure Toronto City Council — section 92(8) of the Constitution Act, 1867 empowers it to do so — but whether the unusual timing of the ward changes infringed on the section 2(b) rights of the candidates and voters.

The Supreme Court’s Reasoning on Section 2(b) Rights

The City’s argument is a positive rights claim.

The Court divided section 2(b) rights into positive and negative rights. A positive right is one which imposes an obligation upon the government to do something for an individual — in this case, to facilitate expression and provide a platform for it. In contrast, a negative right is one which requires the government not to interfere in an individual’s ability to do something — in this case, an individual’s ability to express themselves.

In Toronto v Ontario, the Court found that the City’s claim is a positive claim: the City wanted the provincial government to provide candidate’s with a specific platform for expression by either restoring the previous 47-ward structure, or by maintaining the ward distribution in place at the time of the election’s commencement.[7] While the former is obviously a positive claim, the Court found that the latter also amounts to a positive claim — albeit in a less obvious way. In the Court’s view, both versions of the City’s claim involve asking the provincial government to do something: namely, to provide electoral candidates with a specific platform (the council structure that was in place at the beginning of the election cycle) through which they can exercise their freedom of expression.

The section 2(b) positive rights test

Courts use different tests to assess positive and negative rights claims under section 2(b). Positive rights violations are harder to prove than negative ones, and for them to succeed three questions will all need to be answered in the affirmative:

1. Is the claim grounded in freedom of expression?

2. Does the lack of access to a particular platform for expression amount to a substantial interference with freedom of expression, or was it done with the purpose of interfering with freedom of expression; and

3. Is the government responsible for the inability of the claimant to exercise their freedom of expression?[8]

In Toronto v Ontario, the Court summed up this test in one question: “Was the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government had either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?”[9]

Having applied this test to the City’s claim, the Court determined there was no section 2(b) violation. In support of this conclusion, the Court relied on two key arguments. Firstly, it claimed that there was no interference in the freedom of candidates to campaign or to say what they wanted in their campaigns,[10] and noted that the City wasn’t claiming that the Province acted with the purpose of interfering with expressive freedom.[11] Secondly, it noted that the threshold of “substantial interference” is quite high, and will be met only in extreme and rare cases when meaningful expression has been “effectively precluded” by the state.[12] Given that candidates still had 69 days to campaign under the new ward boundaries and were able to raise significant amounts of funds, the Court decided that this high threshold was not met in this case.[13]

Section 3 Rights Cannot Be Extended to Municipal Elections Via Section 2(b)

Section 3 of the Charter guarantees citizens the rights to vote and run for office in provincial and federal but not municipal elections. While the text of section 3 doesn’t mention a right to “effective representation,” the Supreme Court has recognized this additional right as an “incident”[14] of section 3 — although like the rights to vote and run for office, this right only applies to the federal and provincial levels.

However, in Toronto v Ontario, the City argued that the principle of “effective representation” applies to municipal affairs via section 2(b). Furthermore, the City argued that the new ward distribution violated the principle of effective representation — and hence section 2(b) — by creating wards of roughly equal size as opposed to wards based on population distribution (as would have been the case under the 47-ward distribution).[15]

The Court, though, found that the principles of section 3 — including the principle of effective representation — are quite distinct from those of section 2(b) and cannot be captured under it. According to the Court, the Charter’s framers intentionally did not include municipal representation in section 3, and the rights and principles that it covers should accordingly not be extended to municipal elections.[16]

Justice Abella’s Dissent

This case was clearly a difficult one for the Court, and four of the Court’s nine Justices expressed their disagreement with the five-Justice majority by writing a separate “dissenting” opinion.

The dissent, written by Justice Rosalie Abella, argues that one of the key purposes of section 2(b) is the protection of political discourse.[17] While Justice Abella did not dispute the fact that a province has the legal authority to change municipal wards, she found that doing so in the middle of a municipal election was an interference with the ability of candidates and voters to express themselves politically.[18] This interference included: the absence of notice; the lack of additional time to fundraise; and the fact that more than half of the candidates certified before the ward changes dropped out of the elections after the changes came into effect.[19]

The majority used the wrong test for the right

Crucially, the dissent disagreed with the majority’s conclusion that the City’s claim concerned a positive right.[20] In this regard, the dissent frames the case as being “about government interference with the expressive rights that attach to an electoral process” and not about the provincial government “provid[ing] … a municipal election so that [the claimants] … can express themselves.”[21] The dissent accordingly suggested that the correct test for the case is the less arduous test for violations of negative section 2(b) rights, which requires the claimant to show that the activity under consideration conveys or attempts to convey meaning, and that the legislation or action under scrutiny interferes with that activity.[22]

Having established that municipal elections are crucial vehicles for political expression and that the government’s redrawing of the ward boundaries mid-election was an interference with that expression, the dissent found that the section 2(b) rights of candidates and voters had been violated. Furthermore, the dissent found that these violations could not be legally justified under section 1 of the Charter, which permits violations that are “reasonable,” “prescribed by law,” and “demonstrably justified in a free and democratic society.” The dissent accordingly argued that the impugned provisions of the Better Local Government Act were unconstitutional and invalid.[23]

Conclusion: The Charter, Political Expression, and Municipal Elections

While the decision of the majority essentially affirmed longstanding constitutional norms of provincial jurisdiction over municipalities, Justice Abella’s dissent demonstrates that the Court is sharply divided over the impact that the Charter has on these longstanding norms. Given the growing role of municipalities in Canadians’ everyday lives, it will be interesting to see if future Supreme Court cases on the relationship between provincial jurisdiction and municipal governance continue or break with the reasoning of the majority on this issue.

* Part Two of this article will evaluate the Court’s ruling on whether the Better Local Government Act’s alleged violation of an unwritten constitutional principle rendered it invalid.

 

[1] Toronto (City) v Ontario (Attorney General), 2021 SCC 34.

[2] Better Local Government Act, 2018, SO 2018, c 11.

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[4] Constitution Act, 1867, RSC 1985, Appendix II, No. 5, s 92(8).

[5] Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at para 3.

[6] Ibid at para 2.

[7] Ibid at para 30-32.

[8] Ibid at para 23.

[9] Ibid at para 25.

[10] Ibid at para 37.

[11] Ibid at para 27.

[12] Ibid at para 27.

[13] Ibid at para 37.

[14] Ibid at para 44.

[15] Ibid at paras 44, 47.

[16] Ibid at para 45.

[17] Ibid at para 114.

[18] Ibid at para 89.

[19] Ibid at para 105.

[20] Ibid at para 152.

[21] Ibid at para 151.

[22] Ibid at para 156.

[23] Ibid at para 162.

Jewish Holidays, Federal Elections, and Court Decisions! Oh My!

Chani Aryeh-Bain, Conservative Party candidate in the upcoming federal election in the Toronto riding of Eglinton-Lawrence, and Ira Walfish, political activist, both adhere to an Orthodox Jewish faith and strictly follow religious holidays.[1] The date of the upcoming federal election, October 21, happens to coincide with the Jewish holiday of Shemini Atzeret. Aryeh-Bain and Walfish requested of Canada’s Chief Electoral Officer (CEO) that the date of the election change. They believed the date infringes their religious, democratic, and equality rights under the Charter.[2] The challenge resulted in an initial denial by the CEO, a Court decision which required re-determination, and the CEO’s ultimate decision to keep the election date on October 21 – or Shemini Atzeret – despite the Charter implications for Aryeh-Bain and Walfish.

A Jewish Holiday and a Federal Election

Shemini Atzeret is at the end of the Jewish holiday period of Sukkot. The holiday “has no distinctive ritual,” so it is often associated as a day of rest at the end of the Sukkot period, which was historically a time of pilgrimage.[3] Work is not permitted on the day of rest.[4] In 2019, Sukkot will fall on a date of election advance polling (October 14, 2019) and Shemini Atzeret falls on election day itself (October 21, 2019).[5]

Shemini Atzeret is not practiced by all who hold the Jewish faith – in fact, it is one holiday that has “baffled” some Jewish people because it is not understood or faithfully followed by all.[6] Orthodox Jews are the religious group who most often adhere to the strict rituals of Shemini Atzeret – it is estimated that the there are 75,000 people in Canada that practice an Orthodox Jewish faith.[7]

Thus, in exercising their faith Orthodox Jews do not work on Shemini Atzeret. This has important consequences as observant Jewish people are prohibited from “writing, driving… using any electronic devices such as televisions, computers and phones… [or] voting, volunteering or otherwise participating in election campaigns.”[8]

When Ms. Aryeh-Bain won the Eglinton-Lawrence Conservative Party nomination on April 14, 2019, she “was immediately concerned about the impact of the election date with Shemini Atzeret, and the effect it would have on her campaign.”[9] She wrote to Elections Canada Chief Electoral Officer (“CEO”) Stéphane Perrault on April 18, requesting that the election date move to October 28 because, in her words, “having Jewish candidates and voters disadvantaged runs contrary to their rights to equality under the Charter of Rights and Freedoms.”[10] In addition, there were more than 140 letters from the Canadian public to Elections Canada asking the CEO to consider moving the date so observant Jews could fully participate in the election process.[11]

While federal election dates are pre-set (subject to Parliament dissolving early) on the third Monday of October in the fourth calendar year,[12] the CEO of Elections Canada has discretion to recommend changing the election date to the next day (October 22) or the following Monday (October 28).[13] There is precedent for moving an election because of conflict with Shemini Atzeret. In 2007, Ontario moved their provincial election from October 4 to October 10 because the original date fell on Shemini Atzeret and was deemed to negatively effect observant Jews.[14]

CEO Perrault denied Ms. Aryeh-Bain’s request to change the election date. In a letter dated May 7, 2019, Perrault says that it is “unfortunate” that the election date falls on Shemini Atzeret and that it “may have an impact” on her candidacy, but he reiterated that “Elections Canada does not choose election dates.”[15] However, CEO Perrault vowed to find ways to “ensure that the next general election will be as accessible as possible to electors who may not vote on election day in observance of Jewish holidays.”[16]

Ms. Aryeh-Bain and Mr. Walfish then sought judicial review of Elections Canada’s decision, asking the Federal Court to re-evaluate the administrative agency’s determination.

The Federal Court: Give us Reasons

In Aryeh-Bain v Canada (Attorney General),[17] McDonald J of the Federal Court required CEO Perrault to reconsider his decision. As CEO of Elections Canada, Perrault is the administrative decision maker – as such, his decision would often be given deference. However, when an administrative decision engages Charter rights – in this case democratic rights, religious freedoms, and equality rights – there must be a proportionality analysis weighing the Charter protections with the objectives of the Act that is being administered.[18] This means that a standard of review of reasonableness – the administrative decision maker’s decision will stand if it falls within a range of reasonable outcomes – will be applied if consideration is given to the Charter values at issue.

Justice McDonald’s judgment focuses primarily on section 3 of the Charter – democratic rights. According to the Supreme Court of Canada (“SCC”), the “central purpose of s 3 is to ensure the right of each citizen to participate meaningfully in the electoral process.”[19] In 2003, the SCC said that a meaningful role in the electoral process enables each citizen of Canada to have a “certain level of participation in the electoral process.”[20]

Ms. Aryeh-Bain argued that her right to meaningful participation in the electoral system was infringed because she could not vote, campaign, or advise others to campaign on her behalf on Shemini Atzeret. Mr. Walfish argued that his rights to campaign and vote were also infringed by his inability to campaign or vote on Shemini Atzeret or the other Jewish holidays during advanced polling. They both argued that their religious freedoms and equality rights guaranteed by the Charter were not being adequately considered, and the infringement of these rights should warrant moving the election date.

McDonald J ordered CEO Perrault to reconsider his decision not to move the election date, and to provide new reasons for his decision. She stated that there was an “absence of evidence of the CEO’s consideration of the Charter values at play” and instead the reasons he provided only focused on “operational or logistical concerns in changing the election date.”[21] She believed that he did not truly consider the option of moving the election date, even though it is available to him in the Elections Act to request a change. The Judge ruled that the Court could not defer to the administrative decision maker – the CEO – because he did not “provide any explicit or implicit evidence of proportionate Charter balancing.”[22] Thus, for procedural fairness to be given, CEO Perrault was required to reassess his decision and consider the Charter impacts of the election date on Ms. Aryeh-Bain, Mr. Walfish, and other observant Jews throughout Canada.

The CEO Gives His Reasons

On July 29, CEO Perrault responded with a decision – he had reconsidered the election date, decided not to advise that the date be moved, and provided reasons.

Perrault stated that he “carefully considered the impact of holding the election on October 21 on the ability of observant Jews to participate in the electoral process” and concluded that it was not in the interests of the Canadian public to advise that the date be moved.[23] Perrault says that he recognizes “that this situation engages [Aryeh-Bain and Walfish’s] Charter rights to freedom of religion, to equality, and to vote and to be qualified for membership in the House of Commons.”[24] However, long-standing preparations by Elections Canada, identification of polling locations, and a potential conflict with Nunavut municipal elections were the reasons for his decision to keep election day on October 21.[25]

Perrault noted that Elections Canada was engaging in campaigns to try and limit the impacts of the polling dates on Orthodox Jewish Canadians. Noting that significant Jewish population are only located in 36 of the 338 federal ridings, Elections Canada has devised “local solutions” in these 36 ridings. These include:

CEO Perrault, however, noted that “there is no such thing as a perfect election day, especially in a country as diverse as Canada.”[27] With this, he decided that he would recommend keeping the election polling day on October 21, 2019.

Conclusion

Thus, it appears that the federal election date will go ahead as planned on October 21. The saga of the federal election, the Jewish holiday, and the court decision did create a public conversation about how to balance important civic events with deeply held religious conflicts. While it can be difficult to find a perfect time for an election in a country as diverse as Canada, it is important to try and include as many Canadians as possible. For this reason, there have been calls to amend the Elections Act in the future to move the fixed election date to a period with fewer religious conflicts, such as in June.[28] However, in 2019, Canada’s general election period will proceed through a period of Jewish religious significance. It remains to be seen how much of an impact this will have on candidates like Ms. Aryeh-Bain and voters like Mr. Walfish.

 

 

 

 

[1] Catharine Tunney, “Elections Canada recommends keeping Oct. 21 election date” (29 July 2019), online: Canadian Broadcasting Corporation <cbc.ca/news/politics/chief-electoral-election-date-orthodox-jewish-1.5228581>.

[2] Canadian Charter of Rights and Freedoms, ss 2(a), 3, 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[3] Ari L Goldman, Being Jewish: The Spiritual and Cultural Practice of Judaism Today (New York: Simon & Schuster, 2000) at 135-136.

[4] Ibid. This belief is derived from the biblical passage: “On the eighth day you shall hold a solemn gathering; you shall not work at your occupations” (Numbers 29:35).

[5] Aryeh-Bain v Canada (Attorney General), 2019 FC 964 at para 13 .

[6] Carla Naumberg, “Figuring out what Shemini Atzeret is. Finally” (28 September 2017), online: Jewish Standard <jewishstandard.timesofisrael.com/figuring-out-what-shemini-atzeret-is-finally/>.

[7] Aryeh-Bain, supra note 5 at para 8.

[8] Chief Electoral Officer of Canada, Decision of the Chief Electoral Officer: Date of General Election (29 July 2019), online (pdf): Election Canada <elections.ca/med/spe/decision2919_e.pdf> at 3 [CEO decision].

[9] Aryeh-Bain, supra note 5 at para 17.

[10] Ibid.

[11] Ibid at para 21.

[12] Canada Elections Act, SC 2000, c 9, s 56.1.

[13] Ibid, s 56.2.

[14] Heather MacIvor, “Chief Electoral Officer told to reconsider federal election date” (26 July 2019), online: The Lawyer’s Daily <thelawyersdaily.ca/articles/14025/chief-electoral-officer-told-to-reconsider-federal-election-date-heather-macivor?article_related_content=1> [MacIvor].

[15] Aryeh-Bain, supra note 5 at para 28.

[16] Ibid.

[17] Ibid.

[18] Ibid at para 36; Doré v Barreau du Québec, 2012 SCC 12 at para 54.

[19] Frank v Canada (Attorney General), 2019 SCC 1 at para 26; Figueroa v Canada (Attorney General), 2003 SCC 37 at paras 25-26.

[20] Ibid.

[21] Aryeh-Bain, supra note 5 at para 61.

[22] Ibid at para 63.

[23] CEO decision, supra note 8 at 1.

[24] Ibid at 3.

[25] Ibid at 5-7.

[26] Ibid at 9.

[27] Ibid at 10.

[28] MacIvor, supra note 14.

Robocalls Raise Concern Over Charter Right to Vote and Inspire Changes to Election Laws

Introduction

On May 23, 2013 the Federal Court found in McEwing v Canada (AG)[1] that fraud was committed in six ridings during the May 2, 2011 federal election. During the federal election, automated phone calls, known as robocalls, were made to citizens. The robocalls told citizens that their polling stations had changed. Despite the misleading robocalls, the Court ruled that they did not change the outcome of the election, and, as a result, the elected Members of Parliament (MPs) from the six ridings could keep their seats. The following article reviews the Federal Court case and the Chief Electoral Office of Canada’s recommendations to prevent fraudulent calls from happening in the future. Furthermore, this article examines how robocalls affected Canadians’ democratic right to vote.[2]

Ruling from the Federal Court

McEwing v Canada (AG) dealt with eight applicants, residing in six electoral districts.[3]  They argued that there was an active effort to suppress votes in their ridings during the 2011 federal election.[4] According to the applicants, someone alleging to call from Elections Canada wrongly told them that their voting stations had changed.[5] As a result of this misrepresentation, the applicants believed that the results of the election should be annulled under part 20 of the Canada Elections Act.[6] In this case, the Federal Court judge found that the calls did not prevent the applicants, those who brought the case to court, from voting. However, if the phone calls had prevented a citizen from voting, the calls would have violated democratic rights protected under section 3 of the Charter.[7]

Annulment of election results under the Canada Elections Act requires a series of steps. First, the applicants must prove irregularities, fraud, corrupt practices or illegal practices influenced election results.[8] Second, the applicant must prove that at least one person did not vote due to one of the four factors listed above.[9] Third, annulment requires the Court to undertake the “magic number” test or another appropriate test.[10] The “magic number” test requires the election to be annulled if the rejected number of votes are equal to or outnumber those of the winner. Following these steps, the Court found that the first step had been satisfied because fraud was committed. The second and third steps, however, were not met. The Court found no proof that the fraud prevented people from voting, and therefore, the outcome of the election would not have been different even if the robocalls were not made. Because the claimants were unable to prove all three steps, the election results were not annulled.[11]

The Federal Court spent limited time considering section 3 of the Charter because the claimants were not denied the right vote. Section 3 of the Charter states:

“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.”[12]

Section 3 is significant as it gives Canadian citizens the vote and protects the integrity of Canada’s electoral process.[13] In the future, if there is sufficient evidence that a fraudulent phone call prevented a Canadian citizen from exercising his or her constitutional right to vote, a court may conclude that a claimant’s section 3 Charter right was violated.[14]

Recommendations from Elections Canada

In response to the robocall case, in March 2013, the Chief Electoral Officer of Canada, Marc Mayrand, submitted a report to the Speaker of the House of Commons, Andrew Scheer. The report outlined measures to prevent and manage deceptive communications.[15]

Mayrand’s report found that electors do not have very much confidence (46%) or no confidence (10%) in federal political parties.[16] Electors’ lack of confidence in political parties, combined with the fraudulent robocalls, prompted Mayrand to look for a solution to increase the integrity of the electoral process. To demonstrate that wrongdoing will not be tolerated, Mayrand created a series of rules, penalties, and helpful tools that apply to political entities and the general public. Certain recommendations are not currently in effect because they require approval from the House of Commons. His recommendations are explained more fully below.

Inform the Public on Election

Mayrand stated that Elections Canada would ensure appropriate notification of changes to polling station locations. Notifications will take the form of mailing new voter cards, public announcements through local media, and posting Elections Canada staff at the entrance of old polling sites to redirect voters to the new polling stations.[17]

Elections Canada will also collaborate with the Canadian Radio-television and Telecommunications Commission to ensure members of the Advisory Committee of Political Parties are aware of telecommunications regulations during election periods.[18] The Committee, comprised of representatives from various political parties as well as Elections Canada staff, is tasked with resolving issues that impact political parties.

Creation of a Code of Conduct

The Mayrand report recommended that political parties should create codes of conduct that outline the expected behavior, practices, and standards of the party. The codes of conduct would be created either voluntarily or forced by legislation, and they would apply to the party, the candidates, party officials, and active party members.[19] Creating codes would force parties to consider ethical questions as well as ensure individuals abide by the rules.

Amendments to the Canada Elections Act

According to Mayrand, a series of changes should be made to the Canada Elections Act. The changes would help investigate wrongdoings and punish those responsible.

Provincial Initiatives

Various provincial governments have adopted practices to prevent election wrongdoings prior to Mayrand’s report. Ontario adopted legislation in 2011 that makes it an offence to impersonate “an employee or agent of the Ontario Office of the Chief Electoral Officer, a person appointed under the Election Act, a candidate or candidate’s representative or an authorized representative of a registered party or registered constituency association.”[27] Punishment for this offence is a fine of a maximum of $25,000 and/or imprisonment for a maximum of two years less a day.[28] New Brunswick, Nova Scotia, Quebec, Ontario, Manitoba, Alberta, and the Yukon have provincial legislation granting the Chief Electoral Officer or commissioner the power to force persons to provide testimonial evidence or produce records.[29] Saskatchewan, Manitoba, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador have provincial legislation that makes it an offence to provide false information to the Commissioner during an investigation.[30]

Importantly, provincial legislation only applies to provincial elections because each province has its own non-partisan agency responsible for overseeing provincial elections. Therefore, federal legislation is necessary to oversee Elections Canada, which is the non-partisan agency that manages federal elections.

Federal Initiatives

At the federal level, numerous bills have been tabled to amend the Canada Elections Act. Bill C-524 and C-453 follow recommendations outlined by the Chief Electoral Officer of Canada. If passed, Bill C-524, Act to amend the Canada Elections Act (election advertising), would require candidates, political parties or third parties to approve the content of advertisements.[31] This would ensure that the public is aware of the source of the message and make party leaders responsible for the content. Bill C-453, Act to amend the Canada Elections Act (preventing and prosecuting fraudulent voice messages during election periods), would make it an offence for anyone to transmit fake information about their identity by falsely representing themselves as candidates or an elections officer. Bill C-453 would also require registered parties, candidates, and third parties responsible for advertisement or electoral district associations to provide information on voice messaging to the Chief Electoral Officer of the Commissioner of Canada Elections upon request.[32]

While the Federal Government introduced bills to deal with some recommendations laid out in Mayrand’s report, these have yet to be passed. Moreover, not all the recommendations have been adopted. A significant recommendation that has not been acted upon is the ability for the Commissioner of Elections Canada to access documentation from telecommunications companies hired by parties in order to contact voters. The failure to act on this recommendation would limit the amount of information that could be used in future cases of election wrongdoings and make it difficult to identify parties responsible for fraud.

Conclusion

The robocalls case raises important questions with respect to Canadians’ right to vote under section 3 of the Charter.[33] This is a fundamental principle of democracy. It raises concerns about whether the current regulations in the Canada Elections Act are strict enough, following the Federal Court ruling. The current Act was not strong enough to deal with voter suppression in the 2011 election. This led to the series of recommendations by the Chief Electoral Officer, which aim to place greater penalties for breaking the Canada Elections Act in addition to making it easier to obtain documents needed in the investigation of wrongdoings.

[1] McEwing v Canada (AG), 2013 FC 525 .

[2] Canadian Charter of Rights and Freedoms, s 3, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 < http://laws-lois.justice.gc.ca/eng/Const/page-15.html>.

[3] The six districts are Elmwood-Transcona, Nipissing-Timiskaming, Saskatoon-Rosetown-Biggar, Vancouver Island North, Winnipeg South Centre, and Yukon.

[4] McEwing, supra note 1 at para 2.

[5] Ibid.

[6] Canada Elections Act, SC 2000, c 9 part 20 < http://laws-lois.justice.gc.ca/eng/acts/E-2.01/>.

[7] Charter, supra note 2.

[8] Canada Elections Act, supra note 6, s 524(1)(b).

[9] Ibid, ss 531(2), 524(1) (Section 531(2) of the Canada Elections Act notes that the court may dismiss the application if the grounds in paragraph 524(1)(a) or (b), are not established and, shall declare the election null and void or may annul the election, if they are met.).

[10] McEwing, supra note 1 at para 83.

[11] Ibid at para 6.

[12] Charter, supra note 2.

[13] McEwing, supra note 1 at para 34.

[14] Charter, supra note 2.

[15] Elections Canada, Preventing Deceptive Communications with Electors: Recommendations from the Chief Electoral Officer of Canada Following the 41st General Election, (Ottawa: Elections Canada, 2013) at 7, online.

[16] Ibid at 8.

[17] Ibid at 29.

[18] Ibid at 30.

[19] Ibid.

[20] Ibid at 32.

[21] Ibid at 33.

[22] Ibid at 34.

[23] Ibid at 35.

[24] Ibid.

[25] Ibid at 37.

[26] Ibid at 38.

[27] Ibid at 36.

[28] Ibid.

[29] Ibid at 37.

[30] Ibid at 38.

[31] Bill C-524, An Act to amend the Canada Elections Act (election advertising), 1st Sess, 41st Parl, 2013 (first reading 4 June 2013) <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6202234&File=4>.

[32] Bill C-453, An Act to amend the Canada Elections Act (preventing and prosecuting fraudulent voice messages during election periods), 1st Sess, 41st Parl, 2012 (first reading 17 October 2012) <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5760455&File=4>.

[33] Charter, supra note 2.

Ted Opitz, et al. v. Borys Wrzesnewskyj, et al.: the Battle Over Etobicoke Centre Election Results

On July 10, 2012, the Supreme Court of Canada took a rare break from its summer recess to hear the Etobicoke case, a case which centered on a dispute in Etobicoke, Ontario over contested federal election results. The case was an appeal from Conservative MP of Etobicoke Centre, Ted Opitz. He questioned a lower court’s decision in May 2012 that declared his election win null and void. This means that the election results were invalid and a re-election would have to be held. The case leading up to the Supreme Court sheds insight into a number of issues, including Canada’s election system and its connection to our right to vote.


Background

In the May 2011 federal election, Conservative MP Ted Opitz (“Opitz”) was declared the winner of the Etobicoke Centre riding. He won his riding by beating his opponent, former Liberal MP, Borys Wrzesnewskyj (“Wrzesnewskyj”) by a margin of 26 votes. In June 2011, Wrzesnewskyj launched a challenge to the election results in the Ontario Superior Court of Justice. The challenge was made under section 524(1)(b) of theCanada Elections Act (“Elections Act”), which allows any elector who is eligible to vote and any candidate in an electoral district to make an application to contest the election in that district on the grounds that there were irregularities, fraud or corrupt or illegal practices that affected the result of the election.[1]

Wrzesnewskyj argued there were “irregularities” including three major clerical errors:

It was Wrzesnewskyj’s opinion that such irregularities affected the results of the Etobicoke election and should be declared null and void. Wrzesnewskyj also restricted his submission to ten of the polls that make up for the electoral district of Etobicoke Centre because he felt that a review of the poll books and registration certificates in these polls provided enough evidence of irregularities.[4]

 

The Trial Decision


Issue: are the voting requirements pre-conditions or safeguards in the election process?
Justice Lederer of the Ontario Court of Justice, characterized the general issue between the parties as being a conflict in interpreting the voting requirements in the Canada Elections Act. Some of these voting requirements include the need for electors to be Canadian citizens and over the age of 18. Other requirements pertain to the procedural aspects of voting – for example, electors need to bring identification before receiving a ballot and they must be on the official list of electors. According to Wrzesnewskyj, if any of the requirements in the Elections Act were not met, then the ballot should not have been cast. Consequently, if requirements were not met, the ballot should be treated as withdrawn.[5]

Opitz took a different position on the issue: the requirements do not provide strict preconditions that must be met for a ballot to be valid. Instead, they establish procedural safeguards that protect our right to vote. According to Opitz, when a safeguard has failed or was not followed in the casting of a ballot during an election, it doesn’t necessarily mean that the ballot is automatically invalid.[6]

Fundamental election principles

Justice Lederer identified several fundamental election principles to guide his analysis. First, there is a presumption of regularity in elections.[7] Regularity means that a court must presume that all steps prescribed under statute have been followed.[8] In this case, it would mean that there is a presumption that Elections Canada administered the voting process according to the requirements of the Elections Act. Even if some mistakes were made during the voting process, this presumption of regularity would still apply.[9]Justice Lederer pointed out that evidence limits in the Elections Act support this presumption. For example, it would be improper to approach individual electors to review with them the circumstances surrounding their vote or how they voted in order to determine whether there were any “irregularities” that affected “the result of the election”.[10] In this case, both parties agreed that it would be inappropriate to approach individual voters and that no such evidence should be or would be brought forward or relied on.[11]

Secondly, Justice Lederer commented on the applicable burden of proof. The burden of proof is the duty placed on a party to prove or disprove a disputed fact –in this case –the occurrence of irregularities in the election. Drawing on a variety of case law and the Elections Act, he suggested that the applicant must prove that there were irregularities and that those irregularities affected the results of the election.[12]

Justice Lederer also pointed out that voting is a fundamental right of citizenship. The right to vote is guaranteed by section 3 of the Charter of Rights and Freedoms. Case law suggests that the main concern of election legislation is the enfranchisement of citizens—we want qualified people to vote. Citing the Haig v Canada (Chief Electoral Officer) case, Justice Lederer ruled that democracy cannot exist without the right to vote.[13] The Charter entrenches the fundamental right to vote. Because it is so fundamental to our democratic system, it must be given a broad and liberal interpretation.[14]

Justice Lederer recognized that section 524 of the Elections Act required a determination as to whether there were “irregularities” that “affected the result of the election.”[15] He said that words in the section should be interpreted more liberally to include the many kinds of errors that could potentially affect the result of an election.[16] Opitz argued that irregularity is not meant to include mistakes, errors and trivial non-compliance with the Elections Act. The trial judge disagreed –he said that the implication of his approach would be that no error could be subject to an application to set aside the vote unless it was done intentionally. The judge ruled that the most important part of the inquiry turned on whether the irregularity affected the result of the election. Any non-compliance with the Elections Act that affected election results would not be trivial and would be considered an irregularity.[17]

The election win is null and void

In reviewing the ten polls for alleged irregularities, the judge discounted a total of 79 votes on the basis of failures in registration and vouching. Because this number exceeded the plurality of 26 contested votes, he declared the election null and void.[18]
At trial, the judge drew a distinction between irregularities. He recognized that people who are qualified to vote should be allowed to have their votes count. True clerical errors such as recording the number of ballots incorrectly do not matter and oversights such as failing to cross off a voter’s name once he or she has voted can be accepted. In his view, these should not cause a qualified voter to be “disenfranchised” or have their voting rights withdrawn.[19]

However, he noted that there are requirements in the election process that are fundamental. He pointed out that the Canadian public needs to be confident that those who receive a ballot are on an official electors list or properly registered. In his view, we risk a loss of confidence in our elections system and government if we give up these foundational requirements of the election process.[20]

He concluded that it cannot be good enough to accept individuals who were qualified to vote without registration certificates, poll books recording vouching and names from the final list of electors. It was his opinion that our system requires more than that.[21]

The Appeal to the Supreme Court of Canada

When the appeal was filed, the Supreme Court was already wrapping up its case hearing schedule for the spring session. Opitz’s appeal made its way quickly to the Supreme Court of Canada as required by law–section 532 of the Elections Act says that the Supreme Court shall hear the appeal “without delay.” As such, the Court took a special recess from its summer break to hear the case.

The major issues before the Supreme Court are whether Justice Lederer, in the Ontario Court of Justice (specify accurate) was wrong in concluding that:

Wrzesnewskyj, Opitz and Elections Canada made their legal arguments before the Supreme Court on July 10, 2012. The Court said that they would reserve judgment on the appeal –meaning that they would take time to further contemplate the case and come to a decision on all of these matters at a later date. In the meantime, Opitz is still the MP of Etobicoke. However, the ruling could lead to a by-election if the Supreme Court agrees with the lower’s court’s ruling. The Supreme Court will likely make a decision soon because it is required to expedite the case by law.[22]

Further Reading

Factum of the Appellant, Ted Opitz in Borys Wrzesnewskyj v Ted Opitz, File No 34845, Supreme Court of Canada.
Factum of the Respondent, Borys Wrzesnewskyj in Ted Opitz v Borys Wrzesnewskyj, File No 34845, Supreme Court of Canada.
Factum of the Appellant,Borys Wrzesnewskyj in Borys Wrzesnewskyj v Ted Opitz, File No 34845, Supreme Court of Canada
Factum of the Appellants,Marc Mayrand and Allan Sperling (Elections Canada) in Borys Wrzesnewskyj v Ted Opitz, File No 34845, Supreme Court of Canada
Jim Young, “The Right to Vote” Centre for Constitutional Studies (29 July 2010).

[1]Canada Elections Act, SC 2000, c 9.

[2]Wrzesnewskyj v. Attorney General (Canada), 2012 ONSC 2873 at para 105 :
Registration is a fundamental part of the election process and a person can only be qualified to vote by signing a registration certificate according to Section 161(4) of the Canada Elections Act. A voter must declare that he or she is 18 years of age and a Canadian citizen. The person also declares that they reside at the address shown on the registration certificate.

[3]Ibid at para 151:
Vouching is part of a process in which you can vote –you can taken an oath and have an elector who knows you to vouch for you. Vouching is an important part of identifying electors. Those who vouch for another in the course of the preparation of the registration certificate are, by their confirmation, an essential part of the demonstration that the elector is qualified to vote.

[4]Ibid at para 22.

[5]Ibid at para 19.

[6]Ibid at para 20.

[7]Ibid at para 26.

[8]Factum of the Appellant, Ted Opitz in Borys Wrzesnewskyj v Ted Opitz, File No 34845 at para 39 .

[9]Ibid.

[10]OSCJ decision, supra note 2 at para 33.

[11]Ibid at para 34.

[12]Ibid at para 42.

[13]Haig v Canada, [1992] 3 SCR 163.

[14]OSCJ decision, supra note 2 at para 56.

[15]Ibid at para 61.

[16]Ibid at para 62.

[17]Ibid at paras 68, 70.

[18]Ibid at paras 115, 123, 126, 89, 132, 153.

[19]Ibid at para 156.

[20]Ibid at para 157.

[21]Ibid at para 158.

[22]Leslie MacKinnon, “Stakes high in Etobicoke Centre Supreme Court hearing” CBC News (9 July 2012).

The "Khadr Resolution" & the Conservative Party convention, 2011

During the lead-up to the 2011 Conservative Party convention in Ottawa, media attention turned to a proposal termed by some as the “Khadr Resolution”.[1] The resolution was inspired by the case of Omar Khadr, a young Canadian citizen who fought alongside the Taliban in Afghanistan in 2002, while Canada was engaged in combat against the Taliban.[2] The case was controversial because it pitted the Canadian government's duty to protect citizens' Charter rights against its interest in punishing what might amount to treason.[3]

If the Khadr Resolution had been successful, the Conservative Party would have sought to allow the revocation of Canadian citizenship as punishment for those convicted of treason. This would have required an amendment to the Criminal Code.[4] Members voted to defeat the resolution. This proposal raises questions regarding the appropriate limits for government action in redefining citizenship. Does the government violate a constitutional right when it arbitrarily changes the rules of citizenship acquisition or revocation?   The answer to this question is unclear, since the Canadian Charter of Rights and Freedoms does not contain an explicit right to citizenship. Some might fear that the government will be allowed to sidestep its duty to protect citizens' Charter rights under sections 3, 6, & 23 simply taking a person's citizenship away through the enactment of legislation. In other words, when the government simply enacts legislation that revokes people’s citizenship, people will automatically lose the Charter rights that specifically protect them as citizens. If the Khadr Resolution had been agreed to, there are many ways in which it would likely have been challenged: i)        based on the argument that the Charter contains a right to citizenship; or, ii) based on the argument that the arbitrary removal of an individual's Canadian citizenship to constitute a violation of that individual's “security of the person”.[5]

[1]    See Steven Chase, “Conservatives reject proposal to strip citizenship of anyone fighting against Canada”, Globe and Mail (11 June 2011). [2]    “Indepth: Khadr”, CBC News Online (30 October, 2006). [3]  See Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44. [4]    Criminal Code, RSC 1985, c C-46, s 46. [5]    This would be based on the idea that the proposed amendment might have violated section 7 of the Charter; that is, “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

The Right to Vote

Until 1982, there was no constitutionally protected right to vote in Canada. Instead, the right to vote was provided by ordinary legislation which, at times, excluded parts of the population. What began as a right conferred only on white male landowning citizens, slowly evolved to extend to women, Indigenous Peoples, ethnic minorities, and all economic classes of people.

Chief Justice McLachlin of the Supreme Court of Canada, reflecting on the history of Canadian democracy, referred to it as a “history of progressive enfranchisement.”[1] She called it a “steady march to universal suffrage [which] culminated in 1982, with our adoption of a constitutional guarantee of the right of all citizens to vote in s. 3 of the Charter.”[2]

Section 3 of the Canadian Charter of Rights and Freedoms reads:

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.

The right to vote is unlike other constitutional rights and freedoms, such as equality rights, freedom of religion and conscience, and the right to life, liberty and security of the person. The legislature may override these rights and freedoms by invoking section 33 of the Charter, but the right to vote is beyond the reach of Parliament and the provincial legislative assemblies. While Canadian lawmakers have the power to pass legislation “notwithstanding” the fact that a court may find it contravenes certain sections of the Charter, the right to vote cannot be overridden. Thus, it may be regarded as a belonging to a higher order of rights that, in the words of Supreme Court Justice Bastarache, are clearly placed “at the heart of our constitutional democracy.”[3]

A Literal Reading or Broad Reading

On its face, section 3 provides for an unequivocal right to vote in provincial and federal elections. Other than citizenship, it provides no explicit restrictions on the right to vote. In interpreting the content of section 3, courts have had to determine whether it should be read literally or purposively. That is, should the court adhere to a plain reading of section 3 or should it read in implicit restrictions and democratic ideals?

As for the types of votes to which the right to vote pertains, the Supreme Court of Canada has adhered to a plain and literal reading. Justice L’Heureux-Dubé, writing for the Court’s majority, said, “Section 3 of the Charter is clear and unambiguous as is its purpose.”[4] It specifically limits the right to vote to elections of provincial and federal representatives. By implication, there is no constitutional right to vote in municipal elections, nor in referenda.

Justice Cory, in dissenting reasons, would have extended the right to vote beyond the two sorts of elections explicitly referred to in section 3. He said, “[In] the interpretation of all enfranchising statutes the provisions granting the right to vote should be given a broad and liberal interpretation. Every effort should be made to interpret the statute to enfranchise the voter.”[5]

In the early days of the Charter, some Canadian courts saw internal limitations to the right to vote. That is, reasonable limitations (such as age and residency) were regarded as implicit in section 3. A Manitoba trial court recognized certain “rational dimensions” of the right to vote. Just as there are basic conditions on citizenship that are not expansively described in the Charter, there are also inherent attributes of the voter that are not expressed in section 3.[6]

The Supreme Court of Canada ultimately rejected the approach of recognizing inherent limitations in section 3, preferring to justify limits on voter enfranchisement through section 1 of the Charter.[7] Section 1 provides that all Charter rights are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Thus the only inherent limitation contained in section 3 is citizenship.

Federal Court Justice Strayer described the proper approach to section 3:

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 literally 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.[8]

Age: a Reasonable Limit on the Right to Vote

The requirement that Canadian voters reach the age of 18 by election day is, on its face, an infringement of the right to vote guaranteed to every citizen in section 3. Therefore, it must be asked how laws which deny the vote to mature 16 or 17 year-olds can be justified. The simple answer is that section 1 of the Charter “allows Parliament to make such choices as long as they are rational and reasonable limitations which are justified in a free and democratic society.”[9]

A judgment of the Alberta Court of Queen’s Bench articulates the reasoning behind age restrictions on voting. The objective of an age requirement is obvious: without one, even infants would be qualified to vote. It is a pressing objective to ensure, as much as possible, that the electorate is mature enough for rational and informed decision making. Thus, the legislature’s decision on where the line should be drawn deserves deference as long as it falls within a reasonable range of choices.[10]

The court recognized that people mature at different rates and there may be some well-informed and mature 16 and 17 year-olds who are excluded from voting. Nonetheless, a line must be drawn somewhere.[11] The decision of Canadian lawmakers to draw the line at age 18 seems reasonable when we consider that, in our society, 18 is the age at which most students have finished high school and have begun to make decisions about their future and their place in society. The life experience and burgeoning responsibility that most Canadians have by age 18 make it a reasonable legislative choice for minimum voting age.[12]

Unconstitutional Limits: Mental Disease, Judgeship, Incarceration

Aside from the minimum voting age, Canadian courts have struck down all legislated restrictions on the right of Canadian citizens to vote in elections.

In 1988, the Federal Court of Canada struck down legislation that denies the right to vote to citizens diagnosed with a “mental disease.”[13] The court ruled that this category included people with afflictions that in no way impact the ability to vote. Furthermore, it could also be argued that the law is too narrow because it does not affect people who may have mental diseases but are not confined to a mental hospital.[14] Because this limitation was arbitrary, it could not be justified as a reasonable limit prescribed by law.

Also in 1988, the Federal Court struck down legislation that restricted judges from voting.[15] The court rejected the government’s reasoning behind the law: that judges must not only be politically neutral, but also perceived by the public as such.[16]

Since the Supreme Court of Canada’s 2002 ruling in Sauve v. Canada,[17] the only Canadian citizens restricted from voting in federal and provincial elections are those under the age of 18 and the Chief Electoral Officer. The Sauve decision rendered the last category of disenfranchisement – penitentiary inmates serving sentences of two years or more – an unconstitutional limit on the right to vote.

The government argued that taking the right to vote from prisoners served two objectives: to enhance civic responsibility and respect for the rule of law, and to provide additional punishment. The Court rejected these objectives as vague, symbolic and rhetorical.[18] The Court also failed to find a pressing and substantial purpose that might reasonably justify such a restriction.[19]

The Court went on to say that taking away the right to vote sends a message that is contrary to the values of Canada’s democracy. These values include that democracy is more important than criminal punitive measures,[20] and universal enfranchisement means that “moral unworthiness” is not a legitimate reason for taking away the right to vote.[21]

Absentee Voting

In 1983, British Columbia was one of three Canadian provinces that did not have legislation to allow temporarily absent residents to cast ballots.[22] This state of affairs resulted in a constitutional challenge from a British Columbian who was away at university in Ontario when a provincial election was called. The British Columbia Court of Appeal agreed that elections are often unpredictable in our Westminster system of governance, so it is impractical to expect all residents to plan to be in the province for elections.[23] Also, given the relatively inexpensive means of providing for absentee voting, the lack of any such provision cannot be justified as a reasonable limitation of the right to vote.[24]

Regulation of Elections

While the question of who has the right to vote has been read narrowly and literally, the Supreme Court has been more willing to interpret what section 3 implies about how the electoral process should operate. Section 3 tells us that every Canadian citizen has the right to cast a ballot in federal and provincial elections, but in the words of Chief Justice McLachlin, “more is intended [in the right to vote] than the bare right to place a ballot in a box.”[25] The Court has used the concepts of “effective representation” and “meaningful participation” in judgments that flesh out the requirements and constraints that the right to vote puts on electoral and political processes. The rules surrounding the regulation of political parties and the administration of elections impact on the full meaning of the right to vote.

Electoral Boundaries and “Effective Representation”

The principle of “one person, one vote” is of fundamental importance to mature democracies. Accordingly, the populations of each electoral district should be as similar as is practical. However, the Supreme Court of Canada has ruled that achieving absolute parity amongst electoral districts is not the preeminent goal of Canadian democracy. Rather, the meaning of the right to vote is “not equality of voting power per se, but the right to ‘effective representation.’”[26]

The principle of “effective representation” recognizes the distinctive and divergent interests of Canada’s regions. Northern and rural voters often have political concerns that differ from those of southern and urban voters. “Factors like geography, community history, community interest and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic.”[27]

Just how far the quest for “effective representation” will be permitted to detract from strict voter parity has not been made explicit by the Court. Much deference is given to government in crafting effective electoral boundaries, but “respect for individual dignity and social equality mandate that citizens’ votes not be unduly debased or diluted.”[28] What exactly would amount to an undue dilution seems to be left for determination on case-by-case basis. In the Saskatchewan Electoral Boundaries case, the Court recognized a 25% deviation from parity as acceptable means of recognizing the political interests of voters in northern and rural districts.

At the federal level, section 37 of the Constitution Act, 1867, provides for the number of members of Parliament for each province. Population patterns have changed significantly since 1867, with populations growing vastly in some provinces while shrinking or remaining stable in others. Although the number and allocation of seats in Parliament is, to some degree, subject to constitutional amendment, this means that there may be great disparity in the ratio of population to representation from province to province. Nonetheless, this situation is one that is prescribed by the Constitution, and since one part of the Constitution may not conflict with another part, section 3 of the Charter may not be applied to rectify this sort of disparity.

The Regulation of Parties and “Meaningful Participation”

In 1999, the leader of the Communist Party of Canada challenged legislation that provided certain economic benefits to political parties only if they fielded candidates in at least 50 electoral districts.[29] The rationale for such a system was to promote parties that have potential to form a majority in Parliament, and thus to avoid a highly fractured parliament.

The Supreme Court of Canada rejected this reasoning and struck down the 50-candidate rule. The Court ruled that the purpose of voting is more than merely the outcome of the election. The right to vote involves the right to “meaningful participation”; it recognizes the intrinsic value of voting regardless of the results of an election. Thus, the right to vote is infringed if laws impede the ability of smaller parties to promote themselves.

Limits on Financial Contributions to Political Parties

The Canada Elections Act sets limits on the amount of money that individuals or groups may contribute to a political party’s campaign fund. In 2000 this law was subjected to a constitutional challenge, which included the claim that it violated the right to vote. The Supreme Court of Canada ruled that the opposite was the case: legislated limits on donations to political parties do not infringe the right to vote, but rather enhance the right to vote.

The Court focused on the “informational component of an individual’s right to meaningfully participate in the electoral process.”[30] That is, to exercise the right to vote in meaningful manner, a citizen must “reasonably be informed of all party choices.”[31]

Without spending limits, the political discourse would be dominated by the wealthy segments of society. The voices of the less affluent segments of society and the political parties that represent their views would be “drowned out”; the political discourse would be “monopolized” by parties which appeal to wealthy voters.[32] “This unequal dissemination of points of view undermines the voter’s ability to be adequately informed of all views.”[33]

Further Reading

Jim Young, “Reference re Provincial Electoral Boundaries (1991) – Electoral District Boundaries and the Right to Vote” Centre for Constitutional Studies (14 June 2010).

Jim Young, “Sauvé v. Canada (1993) – Voting Rights for Prisoners” Centre for Constitutional Studies(26 May 2010).

Jim Young, “Harvey v. New Brunswick (1996) – The Right to be Qualified for Membership in the House of Commons or a Legislative Assembly” Centre for Constitutional Studies (29 June 2010).

Jim Young, “Sauvé v. Canada (2002) – Limits on Voting Rights for Prisoners” Centre for Constitutional Studies (26 May 2010).

Jim Young, “Figueroa v. Canada (2003) – and Registered Party Status” Centre for Constitutional Studies (25 June 2010).

“Major Court Cases Related to Federal Elections Legislation” Elections Canada.

“Voting in Canada: How a Privilege Became a Right” CBC Digital Archives.

[1]Sauvé v. Canada (Chief Electoral Officer), [2002] SCC 68 at para.33.

[2] Ibid.

[3] Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 at para.79.

[4]Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995 at 47-48.

[5] Ibid. at 76.

[6] Badger v. A.-G. Manitoba(1986), 30 D.L.R. (4th) 108 (Man. Q.B.) at 112.

[7] Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at para.30.

[8] Belczowski v. Canada, [1991] 3 F.C. 151 (T.D.) at 159.

[9] Supra note 1 at para. 89.

[10]Fitzgerald v. Alberta, 2002 ABQB 1086 at para.56.

[11] Ibid. at para. 69.

[12] Ibid. at para. 70.

[13] Canadian Disability Rights Council v. Canada, [1988] 3 F.C. 622 at 624.

[14] Ibid. at 625.

[15] Muldoon v. Canada, [1988] 3 F.C.R. 628 (T.D.).

[16] Ibid. at 632.

[17] Supra note 1.

[18] Ibid. at para. 24.

[19] Ibid. at para. 26.

[20] Ibid. at para. 40.

[21] Ibid. at para. 44.

[22] Hoogbruin v. A.G.B.C., 1985 CanLII 335 (BC C.A.) at para. 8.

[23] Ibid. at para. 12.

[24] Ibid. at para. 13.

[25]Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, 2003 SCC 37 at para. 19.

[26]Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 at 183.

[27] Ibid. at 184.

[28] Ibid. at 188.

[29] Supra note 25.

[30]Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33 at para. 71.

[31] Ibid.

[32] Ibid. at para. 72.

[33] Ibid.

Harvey v. New Brunswick (1996) – The Right to be Qualified for Membership in the House of Commons or a Legislative Assembly

New Brunswick’s Legislative Assembly Act provides that a member of the province’s Legislative Assembly (MLA) who is found guilty of “any offence that is a corrupt or illegal practice” will be forced to vacate his or her seat and will be disqualified from election for a period of five years.[1] In 1993, an MLA was ousted from his seat after he was convicted of unlawfully encouraging a sixteen year-old to cast a ballot in an election.[2] In response, the MLA brought a constitutional challenge against the legislation, claiming it infringed the right of Canadian citizens “to be qualified for membership” in the House of Commons or a legislative assembly, as protected by section 3 of the Canadian Charter of Rights and Freedoms.[3]   In 1996, the case reached the Supreme Court of Canada, where all nine judges ruled that the legislation is constitutional. Justice La Forest was joined by six other judges in concluding that the legislation is a reasonable limitation on a Charter right. The remaining two judges – Justices McLachlin and L’Heureux-Dubé – saw the legislation as a matter of parliamentary privilege and thus not subject to review by the courts.

Section 3 of the Charter:

Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.   Justice La Forest considered the two opposing positions on the nature of the rights prescribed by section 3. The ousted MLA argued that the rights protected by section 3 are special “preferred” rights. Unlike most other Charter rights, the democratic rights in section 3 are not subject to the “notwithstanding clause,” section 33 of the Charter. In other words, neither Parliament nor legislatures may pass legislation that overrides court rulings on the right to be qualified to sit in a legislature.[4] The former MLA argued on this basis that exceptional deference should be given to this right.   The Government of New Brunswick argued that the Charter’s democratic rights imply “inherent limitations.”[5] In other words, there is a historical context behind the bare text of section 3 that must be considered in interpreting the guarantee. Good moral character, in the government’s view, is an inherent limitation on the right to be qualified for membership in a legislature.   Justice La Forest accepted that there may be some inherent limitations on the right to be qualified for membership in a legislative assembly, but he did not see any such limitations arising in this case.[6]Furthermore, it is well established that courts will give a “broad and purposive” reading of Charter rights. That is, rather that tending to find internal limitations on rights, courts will look to section 1 to weigh the reasonableness of a limit on a right.[7]

Section 1 of the Charter:

The Canadian Charter of Rights and Freedoms guarantees 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.   Legislation that infringes a Charter right may be valid as a reasonable limit on that right. This analysis is guided by the Oakes test, which has four steps. The first step in the Oakes test is to determine the objective of the legislation and decide whether it is directed at a pressing and substantial concern. In this case, Justice La Forest accepted that the goal of “maintaining and enhancing the integrity of the electoral process” is pressing and substantial.[8]   The second step is to find a rational connection between the objective and the legislation in question. Because the five-year disqualification “acts as a strong deterrent and helps to promote confidence in the electoral system,” Justice La Forest concluded that it is rationally connected to the goal of maintaining the integrity of the electoral process.[9]   The third step is to ensure that the legislation impairs the Charter right no more than necessary to achieve its objective. In this case, the period of disqualification could have been any number of years. Justice La Forest considered what period of time would constitute a minimal impairment of the Charterright while still ensuring that the integrity of the electoral process is maintained.[10] The five-year period provides that the offender will be barred from at least one subsequent election. This allows for “a time of cleansing, thus ensuring the integrity of the electoral process is renewed in both real terms and in the mind of the electorate.”[11] There may be competing ideas about the proper time period needed to achieve this objective. Justice La Forest, however, reiterated the Court’s long-standing principle of not replacing the rational opinion of a legislature with a court’s different rational opinion.[12]   In the final step in the Oakes test, Justice La Forest concluded that the negative effects of the legislation are proportional to the pressing objective.[13] Thus, the legislation is a reasonable limit onCharter rights and not unconstitutional.[14]

Parliamentary Privilege

Justice McLachlin agreed with the majority that the legislation must stand, but for very different reasons. She took the view that the case dealt with “the historical privilege of the legislature and is hence immune from judicial review.”[15] Thus, she chose “not to engage in hypothetical analysis of theCharter issue.”[16]   Parliamentary privilege enjoys constitutional status in Canada. The preamble of the Constitution Act, 1867 affirms a parliamentary system of government similar to that of the United Kingdom. Canada’s constitution likewise recognizes a separation of powers whereby the courts should not trench on the domain of Parliament.[17] Justice McLachlin stressed the importance of reconciling parliamentary privilege and section 3 of theCharter. She stated that these two important parts of Canada’s constitution must be read as consistent with one another. In practical terms, this means that courts have the role of determining whether a particular act of a legislature is a legitimate exercise of parliamentary privilege. If it is, then the courts lack the authority to review the act any further.[18]   In this case, Justice McLachlin was satisfied that the ability to expel a member is a proper exercise of parliamentary privilege. It is a historically established power that is necessary to enforce discipline within legislatures and to remove members whose behavior has made them unfit to remain as members.[19] In Justice McLachlin’s opinion, whether or not the legislature made the right choices when it crafted the law is irrelevant, as it is not a matter for a court to rule on.[20]

Chief Justice Lamer on Parliamentary Privilege

Chief Justice Lamer added a brief explanation of why he did not accept the reasoning of Justice McLachlin. The preliminary question that Justice McLachlin overlooked, in his opinion, was what sort of parliamentary privilege is being exercised.[21] The two types identified by the Chief Justice are:   1. Privilege embodied in, or being exercised pursuant to legislation enacted by the legislature. 2.       Privilege pursuant to the internal and inherent “rules” or “resolutions” used to govern proceeding of the legislature.   He said that the case clearly dealt with the first type. And, because section 32 of the Charter clearly states that the Charter applies to legislation, the challenged provisions of New Brunswick’s Elections Act are subject to Charter scrutiny by the courts.[22]   Jim Young (June 29, 2010)

[1] Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876. at para 6. [2] Ibid at para 5. [3] Ibid at para 7. [4] Ibid. [5] Ibid at para 22. [6] Ibid at para 31. [7] Ibid at paras 23, 30. [8] Ibid at para 38. [9] Ibid at para 41. [10] Ibid at para 46. [11] Ibid. [12] Ibid at para 47. [13] Ibid at para 51. [14] Ibid at para 53. [15] Ibid at para 55. [16] Ibid at para 56. [17] Ibid at para 68. [18] Ibid at paras 70-71. [19] Ibid at paras 76-78. [20] Ibid at para 79. [21] Ibid at para 2. [22] Ibid at para 3.

Figueroa v. Canada (2003) – The Right to Vote and Registered Party Status

Prior to the Supreme Court of Canada’s 2003 decision in Figueroa v. Canada,[1] the Canada Elections Act required a registered federal political party to nominate candidates in at least fifty electoral districts. A party that nominated fewer than fifty candidates for a federal election would be de-registered. In losing its registration, it would lose various benefits, including reimbursement of some of its campaign expenses. The Court was split 6-3 in its reasoning, but it was unanimous in finding that the 50-candidate threshold is contrary to the full meaning of the right to vote, as protected by section 3 of the Canadian Charter of Rights and Freedoms.

Effective Representation

All Charter rights, including the right to vote, are given a broad and purposive interpretation by the courts. Section 3 protects more than “the bare right to place a ballot in a box.”[2] Rather, the purpose of the right to vote is “effective representation.”[3] In an earlier decision[4] the Supreme Court determined that effective representation means more than an effective representative in Parliament or a legislative assembly.[5] The Court said effective representation includes the right of every citizen “to play a meaningful role in the selection of elected representatives.”[6] It is not just the composition of Parliament after an election that establishes effective representation. Effective representation also encompasses meaningful participation in the electoral process. Each vote – even for the most unpopular parties and candidates – contributes to “the free flow of diverse opinions and ideas.”[7] Because casting a vote in an election gives voice to perspectives that may not be represented in Parliament, it “has intrinsic value independent of its impact upon the actual outcome of elections.”[8]

50-Candidate Threshold Impedes Meaningful Participation in the Electoral Process

Justice Iacobucci, writing for the majority, disagreed with the Ontario Court of Appeal’s view that a political party only achieves its “essential function” when it shows potential to participate in “governance” after an election.[9] Rather, “participation as a voter is not only about the selection of elected representatives.”[10] Smaller political parties play an essential role in the democratic process. They contribute to the discourse that determines social policy.[11] They draw attention to issues and concerns overlooked by larger parties.[12] For these reasons, parties with fewer than fifty candidates contribute to the effective representation of Canadian voters. Thus, if the 50-candidate threshold harms smaller political parties, it will be contrary to a broad and purposive reading of section 3 of the Charter. The threshold has two distinct effects. First, there is an economic burden. Parties with fewer than fifty candidates do not have the right to issue tax receipts to donors, nor may they retain funds that go unspent during an election campaign.[13] The effect is that smaller parties will be at a disadvantage when it comes to buying advertising space and communicating their policies to the general public.[14]As information about smaller parties is reduced, the right to meaningful participation in the electoral process is diminished. The second effect of the 50-candidate threshold is that party affiliation is not printed on the ballot papers next to the candidate’s name.[15] Because many voters base their voting choices on the policies of parties, rather than individual candidates, the absence of party affiliation on the ballot paper interferes with “the right of each citizen to exercise his or her right to vote in a manner that accurately reflects his or her actual preferences.”[16]  

50-Candidate Threshold Not a Justifiable Limit on the Right to Vote

All Charter rights, including the right to vote, are subject to justifiable limits under section 1 of theCharter. The government identified three objectives for limiting the right to vote. Justice Iacobucci saw two of these objectives as pressing and substantial, but all three failed the Oakes test, the established test for reasonable limits on Charter rights. The first objective identified by the government was “the improvement of the electoral process through the public financing of political parties.”[17] The government said it is important to provide a subsidy to encourage a broad base of donations to political parties, but that the public funds must be carefully managed.[18] Justice Iacobucci saw “no connection whatsoever” between the objective of improving the electoral process and the 50-candidate rule.[19] The second part of the objective – to promote fiscal responsibility – is not sufficiently pressing and substantial in this instance to allow for a limitation on a Charter right.[20] The second objective was to protect the integrity of the electoral financing regime.[21] That is, the candidate limit prevents abuse of the electoral financing regime by parties that do not have a genuine interest in participating in the electoral process.[22] Justice Iacobucci found no rational connection between the 50-candidate threshold and this pressing and substantial objective.[23] For reasons already discussed in the definition of “meaningful participation,” Justice Iacobucci said “there is no merit whatsoever to the claim that the failure to satisfy the 50-candidate threshold is evidence that a party has no genuine interest in the electoral process.”[24] The final objective submitted by the government was to ensure that the electoral process is able to deliver a viable outcome for our form of responsible government.[25] The suggestion here is that Canadian democracy functions best with a majority government, so an electoral system that promotes a few larger national parties over many smaller regional or interest based parties is an important objective.[26] Justice Iacobucci found this objective problematic.[27] While Canada has a long history of majority governments, he saw nothing inherently undemocratic or undesirable about minority governments or coalition governments. In fact, such governments may have benefits.[28] Justice Iacobucci concluded by holding out the possibility that some form of legislated differential treatments of political parties could be a reasonable limit on the right to vote, but the 50-candidate threshold is not one of them.[29] Thus the relevant sections in the Elections Act were declared unconstitutional.[30]  

Justice LeBel’s Concurring Judgment

Justice LeBel was joined by Justices Gonthier and Deschamps in a detailed set of concurring reasons. They agreed with most of Justice Iacobucci’s analysis. However, they expressed “reservations about the methodology” used by Justice Iacobucci to identify an infringement on the right to vote.[31] Justice LeBel was concerned that the majority decision could establish in effect that any restriction on “ the capacity of a citizen to participate in the electoral process” is a violation of the right to vote.[32] In his opinion, legislation aimed at enhancing “meaningful participation” could possibly “compromise individual participation to a certain extent” without infringing the right to vote.[33] Ultimately, LeBel did not find this to be the case with the 50-candidate threshold rule, but he undertook a thorough analysis of the definition of “meaningful participation.” Justice LeBel stressed that there are many different competing values inherent in the section 3 right to vote. Reconciling these values is no easy task.[34] For instance, “favourable treatment of more broadly based parties does further an aspect of effective representation that can be validly weighed in the balance against the value of individual participation.”[35] The Canadian political system has – for valid reasons – tended to favour“centrist, accommodative parties that are particularly well suited to representing a regionally, linguistically and culturally diverse country.”[36] Thus, there is a “laudable objective” behind the 50-candidate threshold.[37] However, while the legislation may be aimed at a legitimate purpose, it interferes with other valuable objectives. It is particularly unfair to provinces other than Ontario and Quebec, which would never be able to put forward a distinctly regional party.[38] So, in the final balancing of effects, Justice LeBel found that the 50-candidate threshold conflicts with the values of the section 3 right to vote. Jim Young (June 25, 2010)

[1] 2003 SCC 37. [2] Ibid. at para. 19. [3] Ibid. at para. 21. [4]Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158. [5] Supra note 1 at para. 25. [6] Ibid. at para. 25, quoting Haig v. Canada [1993] 2 S.C.R. 995 at 1031. [7] Ibid. at para. 28. [8] Ibid. at para. 29. [9] Ibid. at para. 39. [10] Ibid. at para. 44. [11] Ibid. at para. 41. [12] Ibid. at para. 42. [13] Ibid. at para. 48. [14] Ibid. at para. 52. [15] Ibid. at para. 55. [16] Ibid. at para. 57. [17] Ibid. at para. 62. [18] Ibid. at para. 63. [19] Ibid. at para. 64. [20] Ibid. at para. 65. [21] Ibid. at para. 71. [22] Ibid. [23] Ibid. at para. 73. [24] Ibid. at para. 75. [25] Ibid. at para. 79. [26] Ibid. [27] Ibid. at para. 80. [28] Ibid. at paras. 81-82. [29] Ibid. at para. 91. [30] Ibid. at para. 93. [31] Ibid. at para. 95. [32] Ibid. at para. 96. [33] Ibid. at para. 99. [34] Ibid. at para. 132. [35] Ibid. at para. 136. [36] Ibid. at para. 156. [37] Ibid. at para. 172. [38] Ibid. at para. 176.

Reference re Provincial Electoral Boundaries (1991) – Electoral District Boundaries and the Right to Vote

Section 3 of the Canadian Charter of Rights and Freedoms guarantees the right of citizens to vote in federal and provincial elections. Canadian courts have interpreted this right – along with all other Charter rights – in a “broad and purposive” way.[1] This means that the right to vote should not be read narrowly and strictly to mean merely the right to cast a ballot in an election. Rather, it should be interpreted generously with an eye to achieving the purpose of the right to vote.[2]

With this principle in mind, in 1991 the Supreme Court of Canada addressed the question of whether proposed alterations to Saskatchewan’s electoral map infringed an essential element of the right to vote. The proposed changes to the electoral boundaries would have meant variances in the populations of some ridings by as much as fifty percent.[3] In other words, a vote in one riding might have the weight of one and a half votes in another riding.    The crux of the question in Saskatchewan’s Electoral Boundaries Reference was “to what extent, if at all, does the right to vote enshrined in the Charter permit deviation from the ‘one person – one vote’ rule?”[4] A 6-3 majority ruled that the variations did not infringe the right to vote.

Effective Representation

Justice McLachlin, writing for the majority, identified two distinct models of democratic electoral systems. The United States Supreme Court has espoused the “one person – one vote” model.[5] This contrasts somewhat with the history of the right to vote in Canada, which is rooted in a “less radical, more pragmatic” model.[6] Canadian democracy “tolerates deviation from voter parity in the interests of better representation.”[7] The purpose of the right to vote in Canada is aimed at achieving “effective representation.”[8]

Effective representation does not mean that a wide discrepancy in the value of individual votes is always acceptable. Rather, effective representation includes “relative parity of voting power.”[9] A citizen’s vote should not be “unduly diluted” in a riding that is significantly more populous than another.

However, absolute parity is practically impossible. Births, mortality, immigration and emigration mean that the voter population of any given riding is in constant flux. And even if it were possible, voter parity would, in some cases, detract from effective representation. There are differences between urban and rural interests that must be accounted for. Also, geographic and demographic considerations mean that northern ridings in Saskatchewan (and the rest of Canada) will be larger and less populous. These discrepancies are a necessary result of representing the interests of rural and sparsely populated regions. Thus, the majority found no breach of section 3.

The Dissent

Justice Cory, writing in dissent, essentially agreed with principles set out in the majority decision. The history and principles of the right to vote in Canada do not strictly adhere to the American emphasis on voter parity. While there must be relatively equality of one vote to another, there must be room for variation based on geographic and demographic considerations.[10]

Justice Cory noted that there is no fixed percentage of deviation from parity that is acceptable. The amount of leeway must be assessed by each province with its unique geographic and demographic features. One province may determine that a ten percent variation is acceptable, while another may allow for twenty-five percent.[11]

In this case, the process of drawing the 1989 Saskatchewan electoral map gave Justice Cory concern. Specifically, when compared with the 1981 map, in which riding populations varied only as much as fifteen percent, the 1989 map with variations over twenty-five percent did not seem to be a reasonable accommodation of differing electoral interest.[12]

The Saskatchewan government did not put forward any reasonable explanation as to why the 1989 map broadened the gap between riding populations. Therefore, Justice Cory claimed that there is no way to determine if the decision may be saved as a reasonable limit on the right to vote.[13]

Jim Young (June 14, 2010)

[1]Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 at 27. [2] Ibid. at 27-28. [3] Ibid. at 40. [4] Ibid. at 30. [5] Ibid. at 34. [6] Ibid. at 35. [7] Ibid. at 35. [8] Ibid. at 32. [9] Ibid. at 32. [10] Ibid. at 12-13. [11] Ibid. at 21. [12] Ibid. at 17. [13] Ibid. at 23.