Ethical Suffrage: Canadian Offenders and the Right to Vote

 

 

 

 

 

 

 

Ethical Suffrage: Canadian Offenders and the Right to Vote

 

 

 

 

 

 

Political Science 2200 – 001

Douglas College

Dayna Wilson 300113188

19  November 2021

Word Count: 1425

 

When the Supreme Court of Canada decided in 2002 that barring prisoners from voting violated their constitutional right to democratic participation, the news was met with much opposition. Victims’ rights advocates were vocal about their outrage, including Gary Rosenfeldt who told CBC news “These are people who flagrantly disobeyed the laws of this country, who don't care about the laws of this country” (CBC 2004). The 2004 federal election saw Conservatives running on a platform that included a vow to “forbid prisoners in federal institutions from voting in elections” (Conservative Party of Canada 2004). Despite such opposition, it remains the case that not only is universal suffrage enshrined in the Charter of Canadian Rights and Freedoms, but it empirically benefits society and as such should be upheld for Canadian prisoners.

              As part of the Canadian Constitution, the Charter of Rights and Freedoms exists as the supreme law of the nation. It serves to protect the rights that Canadians enjoy as part of a free and democratic society. Section 3 of the Charter, under Democratic Rights of Citizens, 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” (Canada 1982, s3). Prior to the Supreme Court decision in Sauve v. Canada, the exemption of democratic rights of prisoners was justified under section 1 of the Charter which serves as a caveat to the rights laid out in that they are guaranteed “…subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Canada 1982, s1). The crux of the Sauve v. Canada case was whether the prisoner voting ban met the burden of proof for a section 1 exemption from democratic rights.

The process of determining whether the violation of a Charter right is defensible under the law is referred to as the Oakes test, borne of the 1986 Supreme Court case R v Oakes, which challenged a narcotics law that was resolved to have violated the defendant’s legal rights in criminal matters as laid out under section 11 of the Charter. The Oakes test submits in part that any law limiting a Charter right must have a “pressing and substantial” goal and “proportionality between the objective and means used to achieve it” (Centre for Constitutional Studies nd). In context of the Oakes test, the government’s stated objectives of educating prisoners about civic participation and imposing additional punishment in the form of disenfranchisement were determined to fail based on being arbitrary, vague, and having a disproportionate impact on prisoners based on their respective crimes and sentences. In failing to pass the Oakes test, the restriction on prisoner voting rights was determined to not qualify for the section 1 exemption, thus making it unconstitutional.

It should be noted that the Conservative Party’s previously mentioned platform promise to strip prisoners of the right to vote was anchored by then-leader Stephen Harper’s plan to invoke section 33: the Notwithstanding clause of the Charter in order to override offender rights (CBC 2014). This plan did not take into account, however, the fact that democratic rights as laid out under section 3, in addition to several other sections, are not subject to a Notwithstanding override (Roy and Brosseau 2018). As such, Harper’s vow displayed at best an ignorance of the law, at worst an unethical miscommunication of the powers afforded under section 33.

Secondary to the constitutional concerns surrounding prisoner disenfranchisement are the implications with regards to international law. The right to vote is enshrined in the International Covenant on Civil and Political Rights (ICCPR) under Article 25(b), “Every citizen shall have the right and the opportunity…[to] universal and equal suffrage…” (United Nations 1976), which Canada ratified in 1976. This issue can be complicated by the fact that much variation exists between industrialized nations and their approach to prisoner suffrage. While Italy, France, the United Kingdom, and United States are all party to the ICCPR, they all impose partial or total disenfranchisement on offenders. Other nations, including Switzerland, Ireland, Spain, and Denmark join Canada in allowing all prisoners unrestricted voting rights. Though Canadian courts are not strictly obliged to follow international treaties, the Rule of Law Imperative holds that the state has an obligation to uphold commitments it has sworn to under the treaty, and to maintain accountability for any promises made (Bahdi 2002, 166). Such treaties do not exist to provide buffet-style legal options, and in ratifying the ICCPR Canada expresses intent to adhere to all articles laid out under the treaty. Selective adherence to international law undermines not only the Canadian legal system, but the nation’s commitment to any other human rights provisions as well as its international reputation.  

It must also be acknowledged that it is not solely the Canadian legal system that risks being undermined in the face of a voting ban, but the justice system as well. The Canadian justice system purports to observe a philosophy of rehabilitation as integral in achieving goals of crime prevention and social order. Studies of approaches to offender rehabilitation have emphasized the importance of social reintegration in allowing former prisoners to transition to successful post-carceral lives (Mariana 2014, 182), with sufficient feelings of value and meaning as to reduce the likelihood of recidivism. One of the government’s primary defenses of the voting ban was that it served a pedagogical purpose, teaching prisoners the importance of civic responsibility and democratic participation (Jackson 2002); yet this argument is inherently contradictory. Removing a democratic right serves not to emphasize its importance, but rather to weaken it. Rather than preventing prisoners from casting votes, it is preferable to instead consider involvement in democratic process an agent of social reintegration, as “allowing inmates to vote includes them in responsible law-making processes rather than leaving them having no stake in it thereby extending the alienation from society that the offender might already feel” (John Howard Society n.d.). If the focus of the justice system is indeed on prisoner rehabilitation, a cornerstone of which is the fostering of prosocial behaviour, promoting social involvement in the form of suffrage coheres with said focus.

               One final ethical concern that warrants consideration in the discussion of prisoner suffrage is the disproportionate impact that a voting ban visits upon Indigenous Canadians. This demographic is indisputably overrepresented in the criminal justice system, accounting for approximately 30% of all adults admitted to federal and provincial/territorial custody yet just 4% of the Canadian population (Canada 2019). This is due to the systemic racism deeply ingrained throughout the Canadian criminal justice system from arrest to post incarceration, an example of which includes the fact that Indigenous Canadians face three times the likelihood of being charged and indicted following an arrest than their non-Indigenous counterparts (Canadian Race Relations Foundation n.d.). In acknowledging the problematic nature of the Indigenous experience with the justice system, it follows that extra consideration is due the impact of any arbitrarily meted punishments such as universal prisoner disenfranchisement. The percentage of the Indigenous population that would lose voting rights under such a ban is disproportionately high in comparison to other demographics (Jackson 2002), resulting in further marginalization of an already vulnerable population. In addition to serving as a barrier to previously discussed critical social reintegration, such continued marginalization is contrary to goals of truth and reconciliation professed by the Canadian government.

              Even today, nearly twenty years following the Sauve v Canada decision, strong opinions abound on the topic of whether offenders should enjoy the right to suffrage. It is undoubtedly a polarizing issue, with high degrees of emotion and investment experienced on both sides of the debate. Interpretation of the relevant law is subject to judicial discretion, and it should be no great surprise that the margin in overturning the ban was narrow, with the Supreme Court voting 5-4 in favour. Critical examination of the Charter, however, as well as consideration of the counterintuitive goals laid out in restricting inmate suffrage, suggests that the Supreme Court’s ultimate decision was indeed appropriate. The practice was discriminatory, unnecessary, and resulted in no measurable practical benefits to Canadian society. It undermined our legal and justice systems, and our nation’s commitments to universal law and Indigenous reparations. Succinctly put, in the words of the Supreme Court of Canada: “The government's novel political theory that would permit elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation.” (Sauve v Canada, 2002, 1).

             

 

 

Bibliography

Bahdi, Reem. 2002. “Litigating Social and Economic Rights in Canada in Light of International Human

Rights Law: What Difference Can it Make.” Canadian Journal of Women and the Law 14(1):158-184. http://heinonline.org/HOL/Page?handle=hein.journals/cajwol14&dinv=13

Canada. 1982. Canadian Charter of Rights and Freedoms. Ottawa: Justice Laws Website. Accessed 19

November, 2021. https://laws-lois.justice.gc.ca/eng/const/page-12.html

Canada. 2019. Indigenous Overrepresentation in Criminal Justice. Ottawa: Department of Justice.

Accessed 19 November, 2021. https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2019/may01.html

Canadian Race Relations Foundation. Racism in the Justice System. Accessed 19 November, 2019.

https://www.crrf-fcrr.ca/images/stories/pdf/ePubFaShRacJusSys.pdf

CBC News. 2004. “12,500 Prisoners Get to Vote on June 28.” CBC, June 3, 2004.

https://www.cbc.ca/news/canada/12-500-prisoners-get-to-vote-on-june-28-1.485086

Centre for Constitutional Studies. “The Oakes Test.” Centre for Constitutional Studies, nd. Accessed 19

November, 2021. https://www.constitutionalstudies.ca/2019/07/oakes-test/

Conservative Party of Canada. 2004. “Demanding Better: Conservative Party of Canada, Platform 2004.”

https://www.poltext.org/sites/poltext.org/files/plateformesV2/Canada/CAN_PL_2004_PC_en.pdf

Elections Canada. Advancing Fairness, Transparency, and Integrity, 1982-2002. Ottawa: Office of the

Chief Electoral Officer of Canada. Accessed 19 November, 2021. https://www.elections.ca/content.aspx?section=res&dir=his/chap4&document=index&lang=e

Haigh, Richard. 2003. “Between Here and There is Better Than Anything Over There: The Morass of

Sauve V. Canada (Chief Electoral Officer).” Supreme Court Law Review 20, 2003: 352-392. https://canlii.ca/t/t2nn

Hill, John L. “Prisoner Voting in Canada.” The Lawyer’s Daily. Accessed 19 November, 2021.

https://www.thelawyersdaily.ca/articles/29440

 

 

Jackson, Michael. 2002. “Analysis and Highlights of Sauve v. Canada.” Justice Behind the Walls.

Accessed 19 November, 2021. http://www.justicebehindthewalls.net/resources/news/sauve.pdf

John Howard Society of Canada. “Why Should Prisoners Have the Right to Vote?” Accessed 19

November, 2021. https://johnhoward.ca/wp-content/uploads/2016/12/Why-Should-Prisoners-have-the-Right-to-Vote.pdf

Mariana (Mitra), Radu. 2014. “The Institution of Rehabilitation in the Current Legal and Criminal Law

Regulatory Context.” Ovidius University Annals 14(1): 178-182.

Rottinghaus, Brandon, and Alec C. Ewald. 2009. Criminal Disenfranchisement in an International

Perspective. New York: Cambridge University Press. EBSCOhost.

Roy, Marc-Andre and Laurence Brosseau. 2018. The Notwithstanding Clause of the Charter. Ottawa:

Library of Parliament. Accessed 19 November, 2021. https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201817E

Sauve v Canada, [2002] 3 SCR 519.

Schaefer, Arthur. “Inmate Voting Rights: Two Recent Canadian Cases.” University of Manitoba.

Accessed 19 November, 2021. https://umanitoba.ca/faculties/arts/departments/philosophy/ethics/media/Inmate_voting_rights.pdf

United Nations. 1976. International Covenant on Civil and Political Rights. Switzerland: Office of the

High Commissioner for Human Rights. Accessed 19 November, 2021. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Young, Jim. 2010. “Sauve v. Canada (2002) – Limits on Voting Rights for Prisoners.” Centre for

Constitutional Studies, May 26, 2010. https://www.constitutionalstudies.ca/2010/05/sauve-v-canada-2002-limits-on-voting-rights-for-prisoners/