Between Here and There is Better than Anything Over There: The Morass of Sauvé v. Canada (Chief Electoral Officer)

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Supreme Court Law Review


In 1993, the Supreme Court of Canada was asked to decide on the constitutional legitimacy of legislation prohibiting all prisoners from voting in federal elections. Given that the case ended up in our highest court, the parties must have considered it a fairly thorny problem to resolve. Apparently they were mistaken. In a mere 95 words, fewer than the average grade two writing assignment, the Court pronounced that the solution should have been obvious. Here is the judgment in its entirety:

We are all of the view that these appeals should be dismissed.

The Attorney General of Canada has properly conceded that s. 51(e) of the Canada Elections Act, R.S.C., 1985, c. E-2, contravenes s. 3 of the Canadian Charter of Rights and Freedoms but submits that s. 51(e) is saved under s. 1 of the Charter. We do not agree. In our view, s. 51(e) is drawn too broadly and fails to meet the proportionality test, particularly the minimal impairment component of the test, as expressed in the s. 1 jurisprudence of the Court.

Cut to 2002, almost 10 years later, and the Court is faced with virtually the same problem. This time, however, the legislation has been tinkered with.Instead of applying to all prisoners, the new legislative provision denies the right to vote in federal elections only for prisoners serving sentences of two years or greater. The federal government maintains that the new version is valid. Again, it is Richard Sauvé who is the lead challenger.

The case is indexed as Sauvé v. Canada (Chief Electoral Officer). I imagine someone like Stephen Spielberg calling it The Neverending Return of Sauvé. Just like the plot in a movie sequel, the decision has mushroomed into something much more cumbersome and less likely to entertain. Two lengthy judgments, split 5-4, highlight the complexity. The Chief Justice, speaking on behalf of Arbour, Binnie, Iacobucci, and LeBel JJ., found the legislation remained unconstitutional. Justice Gonthier, carrying Bastarache, L’Heureux-Dubé, and Major JJ., thought it was now a reasonable limit and so saved by section 1 of the Charter of Rights and Freedoms.

Sauvé (No. 2) provides an excellent example of how judgments are as much essays about our time as they are legal decisions. Rather than concentrating on a critical diagnosis of the judgments, this paper, in the manner of Marshall McLuhan’s “probes,” instead makes a number of observations about the case: the growing rift amongst Court members that is played out both linguistically and rhetorically; the dialogue metaphor in a new guise; public opinion and media representation of the Court; the growing moral and ethical relativism of section 1 analysis; and finally, a look at broader questions about voting and the nature of rights-based litigation. Framing these discussions and providing a counterpoint to the gravitas of the Supreme Court decision are short excerpts from the Special Committee on Electoral Reform that was given the task in 1992 to deal with a number of electoral issues, including whether prisoners should have voting rights.

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