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Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

HENRY v. CANADA (ATTORNEY GENERAL) 2014 BCCA 30

1. CASE SUMMARY

Areas of law: Charter of Rights; Elections; Right to Vote

~ Amendments to Canada Elections Act imposing voter identification requirements as precondition to casting vote in federal or provincial election constituting facial infringement of right to vote under s. 3 of Charter—Amendments, however, demonstrably justified under s. 1 ~

Background: Amendments were made in 2007 to the Canada Elections Act pertaining to voter identification. The government’s stated concern was the potential for fraud or error that could result in voting by individuals not entitled to do so; the general purpose was to improve the integrity of the electoral process. Under the amendments, an elector must show one piece of government-issued identification with a photo, name, and address or two pieces of identification, each of which establishes the elector’s name and at least one of which establishes his or her address. If the identity document does not contain a residential address, residence is proved if the address is “consistent” with the information on the electoral list. Alternatively, an elector may prove identity by taking a prescribed oath and having another elector who lives in the same polling division vouch for him or her. An elector may vouch for only one elector; an elector who has been vouched for may not vouch for another elector. The same procedures apply both to an elector who is already on the list of electors and to an elector who seeks to register on polling day. Prior to the 2007 amendments, an elector did not have to show personal identification to vote; he or she needed only to state his or her name and address to the poll clerk who would confirm this information on the list of electors. The petitioners applied for an order that the amendments were of no force and effect on the basis that they infringed s. 3 of the Charter and the right of every Canadian citizen “to vote in an election of the House of Commons or of a legislative assembly”. The gravamen of their complaint was that the amendments effectively disenfranchised persons in disadvantaged groups, such as homeless persons or Aboriginal persons residing in rural communities. The application was dismissed and the petitioners appealed.

Appeal decision: Appeal dismissed. The section 3 right to vote in a federal or provincial election is limited only by the specific wording of the section, that is, by citizenship and residence. The amendments created a new condition precedent to voting that did not exist before and this, as the trial judge rightly concluded, constituted a facial breach of s. 3. However, the trial judge also properly concluded that the amendments minimally impaired the right to vote, that there were no alternative, less drastic means of achieving the legislative goals and therefore the infringement was demonstrably justified under s. 1. The judge did not err in failing to find that the deleterious effects of the amendments outweighed their benefit. It was logical that a move from the honour system to an identity system would serve to make rare events of fraud and error rarer and would enhance voter confidence in the electoral system. There was evidence that in the case of some disadvantaged groups, a person’s ability to comply with the new procedure might be affected. However, the trial judge found that Elections Canada undertook campaigns to inform voters and actively expanded the list of acceptable identification and that true cases of disenfranchisement were likely to be extremely rare.

2. COMMENT BY THE COUNSEL FOR THE APPELLANTS, Mark Oulton & Brent Olthuis

The Court of Appeal’s judgment is noteworthy for the signal it sends about the robust nature of the section 3 right to vote. Madam Justice Ryan’s holding that “any interference with the right to put a ballot in the box must be justified under s. 1 of the Charter” will be helpful to any prospective challenge to the more restrictive voting process currently before Parliament. (Indeed, it would be helpful to anyone wishing to challenge the denial of the vote to minors.) The judgment is also important for its statement that deference to Parliament is inappropriate in the section 1 analysis if the “core right to put a ballot in a box” is at play.

Trial counsel did an admirable job in this case marshalling evidence and responding to Canada’s section 1 arguments, but unfortunately as appellants’ counsel, we weren’t able to convince the Court that an error had been made in the trial judge’s section 1 analysis.

3. COMMENT BY COUNSEL FOR THE INTERVENOR, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, Matthew Good

From the perspective of the intervenor B.C. Civil Liberties Association, the Court of Appeal’s decision has both aspects that commend it (such as the treatment of section 3) and aspects that are cause for further comment. From the perspective of the issues raised by the intervenor, it is disappointing that the Court chose not to engage with the concerns raised about the use of public opinion evidence (i.e. polling data or survey results) to demonstrate the salutary effects of an impugned measure under the proportionate effect analysis stage of section 1. The question of whether mere public perception of a problem, or subsequent perception that a legislative measure has done something to ameliorate that perceived problem, is enough to justify legislation that infringes the rights of minorities is a critical one: Reliance on such evidence eats away at the need for some form of objective justification for a measure to be a rational one; accepting wholly subjective evidence undermines this standard. If public opinion is to be given any weight at all, the evidence must be clear and cogent and responsive to the stated object of the law and the right infringed, and the Court must balance public opinion against any imperilled minority interest at stake. Given that the Court declined to address these issues, hopefully this judgment and the decision below will not stand as precedents on the treatment of such evidence in Oakes analysis, particularly as the treatment at the B.C. Supreme Court level was conclusory and accepted that evidence without challenge.

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