by Peter Wagner, November 4, 2002
By KIRK MAKIN
Globe and Mail Update Thursday, October 31, 2002
The Supreme Court of Canada has granted convicts in penitentiaries the right to vote.
In a 5-4 decision on Thursday, the court said a federal law that punishes prisoners for their misconduct in society is wrongheaded and more likely to undermine their respect for democracy than to enhance it.
“The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote,” Chief Justice Beverley McLachlin wrote for the majority. “The idea that certain classes of people are not morally fit or morally worthy to vote and to participate in the law-making process is ancient and obsolete.”
The ruling was a victory for Richard Sauve, convicted of first-degree murder almost 25 years ago in the shooting of a biker in Port Hope, Ont. Mr. Sauve was joined by several other inmates and inmate committees in his constitutional challenge.
Punishment must serve a valid criminal-law purpose and must not be arbitrary, the majority said. Yet, the government failed to produced “any credible theory” to justify using such an essential right as a method of punishment, they said.
In reasons that bristled with indignation, Chief Justice McLachlin said vague philosophical musings do not begin to form a valid basis for denying citizens their right to vote.
“The government cannot use lofty objectives to shield legislation from Charter scrutiny. As to a legitimate penal purpose, neither the record nor common sense supports the claim that disenfranchisement deters crime or rehabilitates criminals.”
She referred to the government’s rationale as “a novel theory” that would permit elected representatives to exclude citizens who have a right to equal participation in a democracy.
“To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility,” the majority said. “This history of democracy is the history of progressive enfranchisement. The universal franchise has become, at this point in time, an essential part of democracy.”