A rchive Date
[ 08-11-2002 ]
Category
[ International Relations ]
sub-Categoy
[ Canada ]
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[http://www.canoe.ca/Columnists/ryan.html
Credibility con-test
By DAVE RYAN - Calgary Sun
November 6, 2002
The Supreme Court of Canada has decided the constitutionally protected right to vote extends to Canada's 12,000 inmates.
I must admit, my opinion on this issue is a little jaded. It was the first case I worked on when I finished law school. I helped draft the legal argument against allowing prisoners to vote.
This is actually the second trip to the Supreme Court for this case. The first time around, the Court ruled the same way but suggested that if Parliament were to rewrite the law in a narrower fashion, such a prohibition on prisoner voting may be constitutional.
Parliament immediately crafted a version of the law which only disenfranchised inmates serving a sentence longer than two years.
In a 5-4 decision, the Court ruled the new law was also unconstitutional. Now the outlaws are entitled to take part in the democratic process which creates and amends the laws they broke.
It's hard to guess why the Court didn't accept this less stringent version of the law which it itself had suggested, but 10 years of Liberal appointments to the Court since the first ruling may be one clue.
Neither side denied the law violates the right to vote protected by section 3 of the Charter, but those opposing prisoner voting argued that such a limit of freedom is justified in a free and democratic society.
Withholding constitutional freedoms from criminals is not a novel idea. We still imprison them - a large imposition on one's freedom. Extending the freedoms we deny to prisoners to include voting is reasonable in a society that values the rule of law.
Those in favour of disenfranchising prisoners argued the law should be upheld for a couple of reasons.
First, the law enhances civic responsibility and res-pect for rule of law. Justice Charles Gonthier, writing on behalf of the slim minority agreed. He said "the social rejection of serious crime reflects a moral line which safeguards the social contract and the rule of law."
The majority disagreed and determined "denying penitentiary inmates the right to vote is more likely to send messages that undermine a respect for the law." Oh good! The last thing we want is to undermine the respect of prisoners for the laws.
The second argument was disenfranchising prisoners promotes a criminal sanction for breaking laws. In other words, there is a price for breaking the law. Part of the price is during the time you pay your debt to society you are not included in the process of making laws.
The majority also disagreed with this analysis. They wrote "the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote."
Presumably the inmates had the right to vote before they committed their crime. If the inmates failed to respect the legitimacy of the law and obligation to obey it when they were free citizens, why would extending the vote to them while imprisoned make any difference?
Some suggest Alberta should invoke the notwithstanding clause to get around this ruling. Unfortunately, the clause cannot be applied to section 3 of the Charter.
The only way to change the law is to amend section 3 of the Charter. This would require consent of two-thirds of the provinces, representing 50% of the population.
The Supreme Court appears determined to win this contest with Parliament. They have twice rejected democratically enacted laws to disenfranchise prisoners. Maybe it's time the court of public opinion overrules the Supreme Court by amending the Constitution.
Of course, for now, any vote on the matter will also include those of Canada's prisoners!
Dave Ryan can be reached by e-mail at dave_ryan@canoemail.com. His column appears every Wednesday.
 World Fact Book (CIA)]
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