Madam Speaker, I would like to participate in order to give the government's response to the Reform member for Okanagan-Shuswap on this private member's bill.
This motion raises the issue of whether individuals confined to penal and psychiatric institutions should be restricted in the exercise of their democratic rights. We are urged to consider equally the advisability of an amendment to section 3 of the charter which enshrines the right of all Canadian citizens, without exception, to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
I would begin by stating that we on this side of the House do not consider that a constitutional amendment restricting the application of this guarantee is advisable. I say this for several important reasons, related both to the nature of rights protected under the charter and to the legislative history of these issues.
The charter itself recognizes the need for a balance between individual rights and societal interests and provides a mechanism for achieving this balance quite equitably.
Section 1 of the charter provides that the rights and freedoms it guarantees are subject only to such reasonable limits prescribed by law, and can be demonstrably justified in a free and democratic society. The existence of this special balancing provision provides legislators with a significant measure of flexibility. Although legislation may contravene individual sections of the charter, such as section 3, the government had the opportunity to demonstrate that this legislation is justified, once again, in a free and democratic society.
The charter has therefore established an important dialogue between the courts and the government, as legislation is scrutinized by the judiciary for consistency with constitutional requirements. The Supreme Court of Canada has indicated that government restrictions on rights will be justifiable under section 1 of the charter when they are designed to accomplish a pressing and substantial government objective and when the means used to accomplish the objective are proportional. Legislation that does not conform to these criteria will be struck down, but this does not preclude Parliament from introducing new, and often better, legislation on the same subject, with qualifications added to ensure the full protection of charter rights.
This dialogue between Parliament and the courts is clearly illustrated by the legislative history relating to inmate voting. The 1985 enactment of the Canada Elections Act defranchised all inmates and in 1993 the prohibition was struck down as unconstitutional by the Supreme Court of Canada in the Richard Sauvé case.
It is clear from the supreme court's decision that restrictions on the right of inmates to vote will violate section 3 of the charter. But as I have stated, that does not mean the government is precluded from acting, for it always has recourse to section 1.
In the Sauvé case the court found that the government had not met the burden of demonstrating that a complete ban on inmate voting was demonstrably justified in a free and democratic society, as the prohibition was drawn too broadly. This step opened the possibility that certain more narrow restrictions on inmate voting might be justifiable.
The challenge for Parliament is to find a reasonable restriction that can be justified as an appropriate limit on individual rights in light of the compelling public objects.
In seeking to find an acceptable compromise after the Sauvé decision Parliament reviewed two major reports on electoral reform, both of which have been critical of the disenfranchisement of all inmates and both of which proposed concrete alternatives.
In 1991 the Royal Commission on Electoral Reform and Party Financing, more commonly referred to as the Lortie commission, had recommended that only persons convicted of an offence punishable by a maximum of life imprisonment and sentenced for 10 years or more be disqualified from voting.
In 1992, the special committee on the electoral reform of the House of Commons had recommended in its all party report that inmates convicted of an offence punishable by a maximum term of life imprisonment be disenfranchised.
While noting these options, Parliament chose a different approach. Under Bill C-114 the impuged paragraph of the Canada Elections Act was re-enacted in 1993 to provide that all prisoners serving a sentence of two years or more be disqualified from voting. It was felt that individuals sentenced to a term of two years or more should be viewed as serious offenders and that forfeiting their right to vote would send a powerful message that serious crimes are inconsistent with the concept of civic responsibility and respect and rule for the law. The voting prohibition was also viewed as a means of further sanctioning the offender. In other words, the measure supported the punitive objective of the law.
Perhaps not surprisingly, Parliament's new proposals soon ended up back in court. Inmate Sauvé and others filed court actions in the Federal Court, trial division, challenging the constitutionality of the newly enacted provision of the Elections Act under section 3 of the charter and also under section 15, the equality to rights provision.
The cases were heard jointly by Mr. Justice Wetston and in his decision released in January of this year, Justice Wetston concluded that the restriction on inmate voting did not violate section 15. However it violated the inmates right to vote in section 3.
Although Justice Wetston found that the objective of the voting prohibition were pressing and substantial, he felt that the wording of the legislation provision was overly broad and, therefore, failed the test of section 1. He pointed out equally that Parliament could provide sentencing judges with the authority to disenfranchise convicts on a case by case basis rather than enact a blanket disqualification for persons serving two years or more.
The federal government has filed an appeal of Mr. Justice Wetston's decision to the Federal Court of Appeal. Until this litigation runs its course it would be premature to consider any further legislative action, be it constitutional or otherwise and to address the issue of inmate voting.
It would be prudent for Parliament to wait to receive guidance from the Federal Court of Appeal and perhaps even the Supreme Court of Canada on whether the existing prohibition on inmate voting is sustainable under the charter. If not, what other sorts of options for restricting the right to vote would be permissible?
Any reconsideration of this issue by Parliament prior to obtaining this input would not only be premature but might well colour the government's defence on existing legislation.
Governments should not consider amending the charter each time an adverse court ruling is handed down. The constitutional amendment procedure, as we know, is lengthy and complex and is not the proper way to address these issues. The charter was never intended to be amended on a piecemeal basis in response to discrete court decisions. Our challenge therefore in the case of restrictions on inmate voting is not to amend the charter but to sustain reasonable legislative provisions that strike an appropriate balance between individual and collective interests.
Although both the Lortie commission and the special committee recommended the continued disenfranchisement of certain individuals on the ground of mental incapacity, the government of the day chose not to accept these recommendations. Instead, the law prohibiting voting by mentally ill persons was repealed as part of Bill C-114.
Finally I should say that the question of who has the right to be qualified for membership in the House of Commons under section 3 of the charter is a separate and distinct question from who should have the right to vote. The Supreme Court of Canada has not yet had the opportunity to pronounce on the extent to which it is possible for the government to restrict the conditions of membership in the House and still remain within the bounds of section 3 of the charter without recourse to section 1. It is not clear that it would be inconsistent with section 3 of the charter as currently worded.
These and other reasons mean that restrictions imposed on the rights of inmates and those of psychiatric institutions to become qualified for membership in the House of Commons may be sustainable within the bounds of section 3. In short, incarcerated persons may not be-
