Prison Inmates and the Right to Vote

A spirited debate is underway in the United Kingdom regarding the voting rights of prison inmates.  This issue was resolved in our country by the Supreme Court of Canada in 2002.

Richard Sauve, a former member of Satan’s Choice Motorcycle Club, was convicted of aiding and abetting murder and sentenced to life imprisonment in 1978.  At that time, a section in the Canada Elections Act (CEA) prevented any Canadian inmate from voting in federal elections. Sauve challenged the legislation in court and his case ultimately reached the Supreme Court of Canada in 1993.  The court ruled that the CEA breached section 3 of the Charter of Rights and Freedoms which guaranteed every Canadian citizen the right to vote. In response, Parliament amended the CEA such that only inmates serving sentences of two years or more (a penitentiary sentence) were excluded from voting.  Sauve commenced another court challenge and his case again reached the Supreme Court of Canada.

The lawyers arguing on behalf of the government conceded that the amended legislation still breached the Charter.  However, section 1 of the Charter allows a law to violate a Charter right so long as the law has a valid objective and the limitations on the right are reasonable and justified. The government argued that the amended section of the CEA had two broad purposes: first, it enhanced civic responsibility and respect for the rule of law; and second, it provided additional punishment for serious offenders.  

Ultimately, a narrow 5-4 majority of the court rejected the government’s arguments.  In the majority decision written by Chief Justice McLachlin, the court found that the objectives of the law were too vague.  The Chief Justice noted that the legislation amounted to a solution in search of a problem as prisoners had long voted in Canada without any apparent adverse effects to society.  A review of Parliamentary debates surrounding the new law offered little support as the Chief Justice wryly noted that they offered “more fulmination than illumination”.

The court felt that the government’s arguments in support of the law were antidemocratic. The Chief Justice observed that “the history of democracy is the history of progressive enfranchisement” with voting barriers based on class, race and gender having fallen over time.  Further, “denying citizens the right to vote runs counter to our constitutional commitment to the inherent worth and dignity of every individual”. The Chief Justice was troubled by the notion of allowing a Parliament elected by citizens to then bar a portion of those citizens from voting in future elections, as this reversed the democratic principle that power flows from the citizens.

The court was left unconvinced that the legislation would enhance respect for the law.  The Chief Justice noted that “disenfranchisement is more likely to become a self-fulfilling prophecy than a spur to reintegration” of the prison population and that “participation in voting helps teach democratic values and social responsibility”. Finally, the court rejected the notion that preventing inmates from voting was an appropriate extra punishment.  Punishment was supposed to be tailored to the acts and circumstances of the individual offender while the CEA painted all penitentiary inmates with the same brush. The law would also “have a disproportionate effect on Canada’s already disadvantaged Aboriginal population” which was overrepresented in penitentiaries.

The court found the amended legislation to be unconstitutional.  As a result, every inmate in Canada, regardless of the length of his or her sentence, is eligible to vote in federal elections.  There are approximately 13,000 inmates in Canadian penitentiaries.  An inmate’s riding is determined in one of four ways: where he or she last resided; the current address of his or her spouse or common-law partner; his or her place of arrest; or the address of the courthouse in which he or she was convicted.