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Government Right on Prisoner-Voting


Restricting the rights of prisoners to vote is reasonable, despite a recent decision of the Supreme Court.


Ted Morton

 Author Notes

Professor of political science, University of Calgary, Executive Director of the Alberta Civil Society Association. Mr. Morton is also one of Alberta's two Senators-Elect, elected by Albertans to represent Alberta in the Senate but so far ignored by Liberal prime minister Jean Chretien when making Senate appointments. Co-author (with Rainer Knopf) of The Charter Revolution and The Court Party (2000, Broadview Press)

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 Essay -

The Government's announcement that it will amend the Alberta Elections Act to keep most prisoners from voting is a win-win decision.

Last week's Court of Appeal decision was a legal defeat but a political victory for the government. The defeat: the Court struck down Alberta's blanket ban on prisoner-voting. It had no choice. The Alberta judges were legally obliged to follow a 1995 Supreme Court of Canada precedent (Sauvé I) that struck down an identical blanket prohibition in the federal Elections Act. Once again, the source of this judicial activism is in Ottawa not Edmonton.

The Federal government responded to Sauvé I by amending the federal Elections Act to prohibit prisoners serving sentences of more than two years from voting. The same Mr. Sauvé, with the aid of publicly funded lawyers, then challenged the amended act as still being an "unreasonable" infringement of his right to vote. Incredibly, the Federal Court agreed, and struck down the Act in Sauvé II. While Ottawa is appealing this loss, it means that currently there is nothing to prevent the likes of Clifford Olsen or Paul Bernardo from voting in federal elections. After Friday's ruling, they can vote in provincial elections as well. That's the bad news.

Now for the good news: The Alberta Court refused to follow the inane ruling of the Federal Court in Sauvé II. Indeed, our judges sharply criticised the Federal Court's reasoning, and went so far as to say that denying the vote to anyone serving more than a ten day sentence would qualify as a "reasonable limitation" on the right to vote.

This "hypothetical" example was a thinly veiled invitation to the Alberta government to jump into the fray and show leadership by enacting such a limitation. Mr. Havelock has now wisely accepted the invitation. In so doing, the Justice Minister strikes two blows for the good guys. Most obviously, he re-instates the sensible policy of denying the vote to those who have proven they cannot respect the rights of others.

Less obvious but no less important, the Government's response provides symbolic support for the courageous refusal of the Alberta judges to join the Charter crusade. This, by the way, is what Premier Klein failed to do in the recent Vriend gay rights case, another instance in which the Alberta Court of Appeal had the independence of mind to break ranks with the Court Party.

As it currently stands, under the section 1 "Oakes Test", the Supreme Court Justices now consult their own sense of "fairness" to determine what qualifies as a "reasonable limitation" of a Charter right. More accurately thought of as the "Hoax Test," this is basically a subjective determination masquerading as a "test," and is at the root of the judicial activism that currently afflicts Canadian democracy. Every government policy, federal and provincial, is at the mercy of whatever strikes five or more judges as "reasonable" on a given day.

By swiftly amending the Alberta Elections Act to include a ten day limit, the Klein government will send a clear message to the Supreme Court what the people of Alberta think is "reasonable" when it comes to prisoner-voting. This amendment will contribute a strong, new voice to the "dialogue" between courts and legislatures that the Supreme Court praised (but ignored) in Vriend. Alberta's leadership on prisoner-voting could inspire other provincial governments to follow suit. If enough governments act, the Supreme Court will have to think twice before it uses the Hoax test to strike down the ten-day rule as "unreasonable." In short, Mr. Havelock's decision may prove to be an important first step in reclaiming Canadian democracy from the grasping tentacles of Charter jurocracy.

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