Sauvé v. Canada (Chief Electoral Officer), 2002 Case 34

Background The right to vote lies at the heart of Canadian democracy. S. 3 of the Charter gives every Canada the right to vote. However, s. 1 allows “reasonable limits” on this right as “can be demonstrably justified in a free and democratic society”. Variety of disqualifications have existed in the past, and since have been abandoned. The case was originally brought forth in Sauvé (1993), where Sauvé argued that blanket disqualification disenfranchised prisoners on election day (of the right to vote). The law was altered to disqualify only prisoners serving more than two year sentences. The judges unanimously agree that conclusive scientific proof is not required to establish such a rational connection between means and ends; the logic and common sense of “reasonable person” will do. Sauvé (2002), narrowly, found that the tradition of disqualification of inmates from voting could not be maintained.

Summary Sauvé (2002) Justice McLachlin: “Charter rights are not a matter of privilege or merit, but a function of membership in Canadian polity.” Doubted that the prisoner disqualification met the “pressing and substantial purpose”. But did not decide the case on this principle due to the precedent set in Sauvé (1993). Instead the case was argued upon the “proportionality test” Government must show that the means chosen to effect this limit are “reasonable and demonstrably justified”. Government failed to demonstrate proportionality - denying the vote to the penitentiary inmates and its stated goals She argued that the blanket disqualification did not meet the rational-connection component of proportionality test. Two year threshold is deemed inappropriate. She argued that no disqualification can be deemed constitutional. She followed by stating that a “reasonable person” could imagine no disqualification that achieves any compelling purpose.

Summary Sauvé (2002) Justice Gonthier: Argued that if the blanket disqualification in Sauvé (1993) failed “the minimal impairment component” of the Oakes test , the government is tasked to define the terms. Promotion of “dialogue” between legislature and the courts. Qualifying the length of incarceration needed for the disqualification. The government’s two-year threshold met the “minimal impairment” standard. Social contract theory used as an important justification for disqualification. Government claimed that depriving prisoners of this right was a useful teaching tool.

Constitutional Principles Section 3 Right to vote for all Canadians Right to vote is fundamental to democracy and the rule of law Section 1 Reasonable limits clause and limitations clause Legally allows the government to limit an individuals’ Charter rights Section 12 Protects prisoners from “cruel and unusual treatment or punishment” Section 51 (e) Legitimate punishment does not meet the dual requirements that punishment must not be arbitrary and must serve a valid criminal law purpose. Section 33 Pertains to the “notwithstanding clause” authorizing legislature to override certain portions of the Charter Unlike other rights, the right of every citizen to vote cannot be suspended under the “notwithstanding clause” Failed to meet “proportionality test” Rational-connection Section 15 “equality-rights” Not used in arguments, per se

Conclusion Sauvé (2002), narrowly, found that the tradition of disqualification of inmates from voting could not be maintained. Strong argument proposed by Justice McLachlin that any disqualification is to be found unconstitutional. Government could not provide rational argument for the two year threshold imposed. Interesting argument presented drawing parallel between the role of penalty and disenfranchisement. Did not argue on the premise of equality; however, could have been incorporated.

Questions “Charter rights are not a matter of privilege or merit, but a function of membership in Canadian polity.” What role those the legislation have to play when social and political policies are competing? How does the legislature and the courts maintain “dialogue”? What role those over-representation of certain subgroups of the population, including Aboriginals, play in the democratic process if disqualification were to be maintained? “Punishment must also fulfill a legitimate penal purpose, including deterrence, rehabilitation, retribution and denunciation (…).” What role do you see disenfranchisement play in rehabilitation of inmates, if any?