National Post

Saturday, November 02, 2002

Once again: Court-made law

F.L. Morton
National Post

The Supreme Court's edict that all prisoners must be given the right to vote -- regardless of the seriousness of their crime -- is both an absurdity and an insult. It is an absurdity because it has no basis in law. It is simply the policy preference of the judges -- indeed, only five of the nine.

At the time the Charter was written in 1980-81, the federal government and nine of the 10 provinces disenfranchised prisoners. There is not a single scrap of historical evidence that anything in the Charter was intended to overturn this policy. This policy was shared by more than 90% of other Western democracies and rested on the simple premise that those who break the laws forfeit (temporarily) the right to make the laws.

Once again, the Supreme Court has ignored the intended meaning of the Charter and substituted its own preferred views of enlightened policy. As the Chief Justice sanctimoniously sniffed, the view that convicted prisoners are morally unworthy to vote is "ancient and obsolete." Support for this view could no doubt be found in the ethereal nether regions of Canadian criminology departments (where no one is ever deemed responsible for anything they do). But it hardly represents the judgment of most Canadians, then or now.

The court majority attempts to justify its decision with a literal reading of section 3 of the Charter -- "Every citizen of Canada has the right to vote." In countless other Charter rulings, the Court has rejected the practice of such literal readings. For example, a literal reading of section 7 of the Charter "everyone has the right to life, liberty and security of the person" -- would create a constitutional ban on capital punishment or, arguably, abortion. All Charter rights are subject to reasonable limitations. In the case of the right to vote, there are other analogous disenfranchisements. Canadian citizens under the age of 18 are not allowed to vote. Citizens who have been legally determined to be seriously mentally impaired do not vote.

Why does the court accept these limitations on the right to vote but not the disenfranchisement of convicts? Our five would-be Platonic guardians appear to have bought into the half-baked theory that allowing prisoners to participate in elections will have some sort of rehabilitative effect and help them reintegrate into society upon release. Of course, there is not a single shred of empirical evidence to support this theory. The famous five simply accepted it on faith.

A moment's reflection indicates that the opposite scenario is just as probable: that by taking away their vote, convicts are taught that being a citizen has responsibilities -- respecting the rights of others -- and when you violate those rights you lose some of your own. If we really want prisoners to become active voters upon their release, a better option would be to offer them civics courses on liberal democracy.

But this case is more than just bad law. It is an insult to law-abiding citizens. The Supreme Court is telling Canadians that when it comes to one of the premier rights of democracy, there is no difference between them and serial murderers such as Clifford Olson and Paul Bernardo. Richard Sauvé, the prisoner who challenged the voting law, was himself convicted of first-degree murder.

Federal prisons are not filled with traffic offenders. The average number of criminal code convictions in federal prisons is 28 per inmate. Will our high school students' hearts swell with patriotic pride when they learn in their own civics classes that in Canada criminals such as Olson and Bernardo enjoy the same right to vote as their parents?

Perhaps the one good thing about the Sauvé case is that we won't have to listen to the Supremes and their apologists prattle on about "constitutional dialogue" anymore. This dialogue theory is now the staple defence of judicial activism in Canada. All first-year law students are now taught -- upon pain of social ostracism -- that the court's Charter decisions do not dictate policy choices to elected governments. Rather, the court simply suggests how a legislature might achieve its policy goals through different, more carefully tailored means. It is always open to the legislature to amend and re-enact a law that has been struck down. According to this sanguine scenario, courts and legislatures are equal partners in an ongoing constitutional dialogue, and Canadian democracy is enhanced, not undermined.

The problem here is that Parliament (and several provincial legislatures) had already "dialogued" with the court after earlier cases that struck down blanket bans on all prisoner voting. The law challenged in this case had narrowed the disenfranchisement to only those convicts serving sentences of more than two years. Prisoners serving less time could vote. But this, it seems, was not good enough. Some partnership. Some dialogue.

Unfortunately, the Charter's section 33 notwithstanding power cannot be used to overturn the Sauvé decision. (It has no application to section 3.) The only option is a constitutional amendment that restores the original meaning of section 3 of the Charter: "Every citizen of Canada, except those convicted of a criminal offence, has the right to vote."

Such an amendment should be introduced into Parliament immediately. If, as seems likely, the Liberals will not do this, then any or all of the 10 provincial governments should, as their election laws will be declared invalid if the Sauvé precedent is allowed to stand.

F.L. (Ted) Morton is a professor of political science at the University of Calgary and co-author of The Charter Revolution and the Court Party.

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