Recently, the Ontario courts issued two important decisions affecting Canadians’ constitutionally protected right to vote. The decisions are troubling. Between them, the rulings will effectively disenfranchise over a million Canadian citizens in the upcoming federal election, and will disproportionately impact some of the most vulnerable members of Canadian society, including people who are homeless, the elderly and Indigenous peoples. Even worse, they do so in the absence of any compelling justification.

Council of Canadians et al v Canada (Attorney General)

First, on July 17, the Ontario Superior Court of Justice denied an application brought by the Council of Canadians and the Canadian Federation of Students for an injunction to suspend the operation of controversial amendments to the Canada Elections Act brought about by the Fair Elections Act, which became law in 2014.

The applicants are challenging a number of elements of the Fair Elections Act, including provisions that restrict the use of “vouching” and prevent voters from using their Voter Identification Card as a piece of identification on voting day. The groups filed a constitutional challenge to these provisions last year, arguing that they violate section 3 of the Canadian Charter of Rights and Freedoms, which protects the right of every citizen to vote, and section 15, which protects equality rights. They say that these changes will disproportionately impact students, elderly people, people with disabilities, homeless people and Indigenous people, who are all less likely to possess the identification required by the Act.

The BCCLA has been an outspoken advocate on issues of democratic rights, and has been a vocal opponent of voter identification laws. We believe that voter ID laws seek to address a single, largely speculative problem – wrongful impersonation of voters – at far too great a cost – disenfranchisement of Canada’s most vulnerable and marginalized citizens. When these amendments were first proposed in 2014, BCCLA staff lawyer Raji Mangat made submissions to Parliament on these points. The BCCLA is now an intervener in the case.

Unfortunately, the full case could not be heard in time for the federal election this October, so the applicants sought an injunction to prevent the application of some of the Act’s most problematic provisions during the election. On July 17, their application was denied. Despite acknowledging the risk that some people would be unable to vote because of the strict new requirements and the potential for “irreparable harm” as a result, the judge declined to issue the injunction, saying that it would be “problematic to change the rules for elections at the last minute through the blunt instrument of judicial intervention.”

Of course, the very rules at issue only became law in October of last year, making a full constitutional challenge of their merits before the election all but impossible. Rejecting the application for an injunction in these circumstances creates a perverse incentive: government could introduce laws violating rights just months before an election, safe in the knowledge that – at least for the purposes of that election – those laws will stand because a court will not have time to fully review them.

The implication of the decision is that tens of thousands of Canadians may find themselves unable to vote on Election Day. These citizens will be unable to exercise one of the most important rights they have in a constitutional democracy, at exactly the moment when it counts the most. We know this is going to be a hotly contested election, and many ridings could turn on the slimmest of margins. Where the disenfranchised voters could have changed the result of the election, this would constitute irreparable harm not only to them, but also to the public at large. In our view, this is a much more problematic result than the one the judge was worried about.

Frank v Canada (Attorney General)

Then, just a few days later, the Ontario Court of Appeal issued its decision in Frank v Canada (Attorney General), in which the BCCLA also intervened. The Court of Appeal overturned a lower court decision and decided, by a margin of 2 to 1, that it is constitutional to deny the right to vote to Canadians who have lived outside Canada for more than five years. While the majority acknowledged that Canadians’ Charter-protected voting rights are breached by this rule, they found the breach permissible under s. 1 of the Charter as a reasonable limit on the right to vote.

What’s especially concerning about these cases is that in neither one did the government provide a compelling justification for the infringement of fundamental democratic rights. In the Fair Elections Act case, speculation about voter fraud was not borne out on the evidence, which showed that such occurrences are virtually non-existent in Canada. In Frank, the majority concluded that the breach of voting rights could be justified by the “pressing and substantial objective of preserving the social contract at the heart of Canada’s system of constitutional democracy.”

The “social contract” discussed by the majority refers to the idea that laws derive their legitimacy from the fact that they are made by elected representatives of the people who will ultimately be governed by those laws. However, this is just the kind of vague and symbolic justification the Supreme Court of Canada warned about in another important voting rights case, Sauvé v Canada (Chief Electoral Officer). In that case, the government defended its denial of voting rights to prisoners on the basis that they were promoting respect for the law and appropriate punishment. In rejecting their argument, the Court said:

Vague and symbolic objectives such as these almost guarantee a positive answer to this question [of whether the rights violation can be justified]. Who can argue that respect for the law is not pressing? Who can argue that proper sentences are not important? Who can argue that either of these goals, taken at face value, contradicts democratic principles? However, precisely because they leave so little room for argument, vague and symbolic objectives make the justification analysis more difficult. Their terms carry many meanings, yet tell us little about why the limitation on the right is necessary, and what it is expected to achieve in concrete terms. The broader and more abstract the objective, the more susceptible it is to different meanings in different contexts, and hence to distortion and manipulation.

In upholding prisoners’ right to vote, the Supreme Court of Canada in Sauvé emphasized that the right to vote is “fundamental to our democracy and the rule of law”, “the cornerstone of democracy” and represents “the foundations of the participatory democracy guaranteed by the Charter”. However, these decisions out of Ontario seem to suggest that voting is a privilege, not a right, and one that can be denied on the basis of vague and speculative government concerns. We should all be alarmed if such a vital right can be stripped away without any compelling justification.

Counsel for the parties will be seeking leave to appeal in both of these troubling cases. The BCCLA intends to continue its role as an intervener in the appeals, making arguments about the fundamental importance of voting rights to our democratic process and the high burden that must be met to limit them.