Charter enfranchisements The legislative record
No doubt the most significant influence on electoral law in the post-war years was adoption of the Canadian Charter of Rights and Freedoms, which came into effect on April 17, 1982. Sections 2 to 5 of the Charter set out fundamental freedoms and democratic rights. Section 3 states that
Many Canadians probably assumed that their right to vote was assured well before 1982. But as we have seen throughout this book, many people had been denied the franchise some on racial or religious grounds, and others because they could not get to a poll on voting day, because of mistakes in compiling voters lists, or for other largely administrative reasons.
Even when improvements in election law were proposed for instance, extending advance polling to groups other than railway workers and commercial travellers they sometimes provoked resistance and grumbling in Parliament. We have seen, for example, how it took 50 years to extend advance voting to everyone who wanted it; each time a new group was given the privilege of advance voting, there was opposition, generally on the basis of cost or administrative convenience. Arguments based on democratic rights and principles were heard less often.
The Charter signalled a different approach. It guaranteed the right to vote, as well as freedom of thought, expression, and association subject only to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Moreover, legislatures cannot override the right to vote (as they can some other Charter provisions) using the so-called notwithstanding clause.
The Charter also provides a basis on which to challenge losses or infringements of rights. Someone denied the franchise, for example, could appeal to the courts; if the appeal was successful, the courts might strike down part of the law or require changes in the administrative rules that resulted in disenfranchisement and this is indeed what has happened on occasion since 1982.
Significant advances in election law and administration occurred before the advent of the Charter, of course denial of the franchise on the basis of sex, religion, race and income had been removed from the law, and administrative steps had been taken to improve access to the vote for people with disabilities, people away from home on election day, and members of the public service and the military serving abroad.
Notwithstanding the changes since the Second World War, disqualifications remained for judges, prisoners, and people with mental disabilities, and some people were still administratively disenfranchised. In addition, some citizens electoral participation had also been curtailed: civil servants in some jurisdictions, for example, were prohibited from engaging in activities that would reveal partisan preferences.
Step by step since 1982, many of these problems have been addressed through steps by Parliament and by election officials to ensure that Canadas electoral system is not only legally but also administratively consistent with Charter principles, making the vote accessible to everyone entitled to cast a ballot.
Assistance in this task was provided by the Royal Commission on Electoral Reform and Party Financing, appointed by the federal government in 1989 to review, among other issues, the many anomalies identified by Charter challengers. The Commissions recommendations were reviewed by Parliament, with advice and support from the Chief Electoral Officer. The result was the passage of Bill C-78 in 1992 and Bill C-114 in 1993, which together initiated significant change in the way electoral law dealt with access to the vote.
In the following pages, each of these developments enfranchisements as a result of Charter challenges, and legislative change since the Charter is examined in turn.
To date the principal beneficiaries of Charter challenges to electoral law have been judges, prisoners, and people with mental disabilities.
Judges appointed by the federal cabinet had been legally disqualified from voting since 1874. The law remained in place until 1993, but a Charter-based court ruling at the time of the 1988 general election rendered the provision inoperative. About 500 federally appointed judges then became eligible to cast ballots in federal elections after a court struck down the relevant section of the Canada Elections Act, declaring it contrary to the Charters guarantee of the right to vote.
Prisoners had not been allowed to vote since 1898 although according to at least one MP, Lucien Cannon, some inmates appear to have found a way around the rules:
The solicitor general of the day appeared not to credit this story, replying that prisoners might be on voters lists, but since they could not get to a ballot box, they would be disenfranchised in any event.
Until 1982, there was little parliamentary support for ensuring that prisoners could exercise the right to vote. Since 1982, however, inmates of several penal institutions have relied on the Charter to establish through the courts that they should indeed be able to vote. They began by challenging provincial election laws, where they had some success. Then, during the 1988 federal election, the Manitoba Court of Appeal ruled that the judiciary should not be determining which prisoners should or should not be disenfranchised; this was a matter for legislators, not judges.
Since then, judicial opposition to a general disqualification of prisoners has been demonstrated in various court decisions: by the Federal Court of Canada in 1991, the Federal Court of Appeal in 1992, and the Supreme Court of Canada in 1993, and indeed, prisoners were allowed to vote at the 1992 federal referendum as a consequence of court decisions.
These cases determined that a general or blanket disqualification of all inmates would no longer be tolerated under the Charter, but the courts did not establish what specific disqualifications would be acceptable, leaving that decision to legislators. In 1993, Parliament removed from the law the disqualification for prisoners serving sentences of less than two years, but for prisoners serving longer terms, the disqualification remained in effect.
The new provision was challenged by an inmate serving a longer sentence. The Federal Court agreed with the inmate in a 1996 decision, stating that the new provision was incompatible with section 3 of the Charter and did not constitute a "reasonable limit" in a free and democratic society. This decision has been appealed, but in the meantime, the 1996 ruling stands, and all prisoners can vote.
In the 1980s and early 90s, several changes in election administration and the law improved access to the vote for electors with disabilities. One group of people with disabilities remained disenfranchised, however people "restrained of [their] liberty of movement or deprived of the management of [their] property by reason of mental disease". In 1985, a Commons committee recommended that they be enumerated and have the same right to vote as other Canadians, and the Royal Commission reached a similar conclusion in its 1991 report.
In the meantime, the provision was struck down by the courts. In 1988, the Canadian Disability Rights Council argued in a Charter challenge that the Canada Elections Act should not disqualify people who were under some form of restraint because of a mental disability. The court agreed, although the ruling did not specify what level of mental competence would qualify a voter. In 1993, Parliament removed disqualification on the basis of mental disability as part of a broader overhaul of the statute.
The principal post-Charter innovations in the electoral system were embodied in three legislative measures: Bill C-78 in 1992, Bill C-114 in 1993, and Bill C-63 in 1996.
Following on recommendations from the Royal Commission on Electoral Reform and Party Financing, a parliamentary committee, and the Chief Electoral Officer, Bill C-78 contained amendments to the Canada Elections Act (along with several other federal statutes) to assure access to the electoral process for people with disabilities. The Chief Electoral Officer was also given a specific mandate to initiate public education and information programs to make the electoral process better known to the public, especially those most likely to experience difficulties exercising the franchise whether because of disabilities, language barriers, or other factors.
Bill C-114 took accessibility another step forward, introducing the so-called special ballot a mail-in registration and voting system for Canadians away from their home constituencies, prison inmates, and any other elector who cannot vote in person on election day or at an advance poll. At last, all Canadians living or travelling outside the country not just military personnel and diplomats could vote, provided they had not been absent from Canada for more than five years and intended to return home at some time. Bill C-114 also removed the legislative disqualification of several additional groups, including people with mental disabilities.
Access to the vote
Among the main provisions of Bill C-78 (1992) were these:
Bill C-63, passed in December 1996, introduced three significant changes:
A permanent register of electors
The subject of a permanent register of electors first broached in the 1930s came up again in the 1980s. In 1991, the Royal Commission recommended that provincial lists be used for federal purposes, judging that the right conditions for establishing a federal register had not yet been met. These conditions appeared to be in place by 1995, when Elections Canada established a working group to look at the many technical, legal, financial, and other issues involved in establishing a register.
Once the National Register of Electors was established through one last enumeration in April 1997 elections and referendums could be conducted using preliminary voters lists generated from the register, which would be updated regularly using data from a variety of sources. For example, the 3.2 million Canadians who move every year (about 16 per cent of the electorate) will have their new address added to the register of electors automatically when they submit a change of address for their drivers licence.
As a result, enumeration to compile voters lists a time-consuming and expensive undertaking involving more than 100,000 enumerators at each election takes its place in history, alongside oral voting, proxy voting and other procedures of the past.