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Edited on Wed Sep-05-07 01:03 PM by iverglas
-- how the issue has been dealt with in Canada. I'm not aware of it ever being the practice here (post 1867 constitution, anyhow) to deny the right to vote on the basis of criminal conviction to someone who was not an inmate at the time of the election. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=484543Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement
The tenor of the debate over felon disenfranchisement has taken a remarkable turn. After a generation of essentially unsuccessful litigation, two federal courts of appeals have recently reinstated challenges to such laws. A number of states have recently made it easier for ex-offenders to regain their voting rights. Recent public opinion surveys find overwhelming support for restoring the franchise to offenders who have otherwise completed their sentences. On the international front, the supreme courts of Canada and South Africa issued decisions requiring their governments to permit even incarcerated citizens to vote. Download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=484543#PaperDownload(footnote 8)... Ewald provides a relatively up-to-date list of other countries that permit voting by inmates, including Israel, which sets up polling places in prisons and detention centers and Germany, where the government is affirmatively obligated to facilitate voting by eligible prisoners. When considering how human rights issues are dealt with outside the US, the supreme courts of Canada and South Africa are the ones to keep an eye on. (Same-sex marriage ...) http://scc.lexum.umontreal.ca/en/2002/2002scc68/2002scc68.htmlSupreme Court of Canada Sauvé v. Canada (Chief Electoral Officer), <2002> 3 S.C.R. 519, 2002 SCC 68
Richard Sauvé Appellant
v.
The Attorney General of Canada, the Chief Electoral Officer
of Canada and the Solicitor General of Canada
Respondents
Constitutional law — Charter of Rights — Right to vote — Prisoners — Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections — Crown conceding that provision infringes right to vote — Whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 3 — Canada Elections Act, R.S.C. 1985, c. E‑2, s. 51(e). ... On a 5-4 decision, the Supreme Court of Canada struck down the law prohibiting inmates of federal penitentiaries, i.e. those serving more than two years, from voting in federal elections. This is from the summary of the majority reasons; I'll emphasize what might be the interesting bits: Held (L’Heureux‑Dubé, Gonthier, Major and Bastarache JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Iacobucci, Binnie, Arbour and LeBel JJ.: To justify the infringement of a Charter right under s. 1, the government must show that the infringement achieves a constitutionally valid purpose or objective, and that the chosen means are reasonable and demonstrably justified. The government’s argument that denying the right to vote to penitentiary inmates requires deference because it is a matter of social and political philosophy is rejected. While deference may be appropriate on a decision involving competing social and political policies, it is not appropriate on a decision to limit fundamental rights. The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination. The framers of the Charter signaled the special importance of this right not only by its broad, untrammeled language, but by exempting it from legislative override under s. 33's notwithstanding clause. The argument that the philosophically‑based or symbolic nature of the objectives in itself commands deference is also rejected. Parliament cannot use lofty objectives to shield legislation from Charter scrutiny. Here, s. 51(e) is not justified under s. 1 of the Charter.
The government has failed to identify particular problems that require denying the right to vote, making it hard to conclude that the denial is directed at a pressing and substantial purpose. In the absence of a specific problem, the government asserts two broad objectives for s. 51(e): (1) to enhance civic responsibility and respect for the rule of law; and (2) to provide additional punishment or “enhance the general purposes of the criminal sanction”. Vague and symbolic objectives, however, make the justification analysis difficult. The first objective could be asserted of virtually every criminal law and many non‑criminal measures. Concerning the second objective, nothing in the record discloses precisely why Parliament felt that more punishment was required for this particular class of prisoner, or what additional objectives Parliament hoped to achieve by this punishment that were not accomplished by the sentences already imposed. Nevertheless, rather than dismissing the government’s objectives outright, prudence suggests that we proceed to the proportionality inquiry.
Section 51(e) does not meet the proportionality test. In particular, the government fails to establish a rational connection between s. 51(e)’s denial of the right to vote and its stated objectives. With respect to the first objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values. The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility. The government’s novel political theory that would permit elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation. That not all self‑proclaimed democracies adhere to this conclusion says little about what the Canadian vision of democracy embodied in the Charter permits. Moreover, the argument that only those who respect the law should participate in the political process cannot be accepted. Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter. It also runs counter to the plain words of s. 3 of the Charter, its exclusion from the s. 33 override, and the idea that laws command obedience because they are made by those whose conduct they govern.
With respect to the second objective of imposing appropriate punishment, the government offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of state punishment. Denying the right to vote does not comply with the requirements for legitimate punishment — namely, that punishment must not be arbitrary and must serve a valid criminal law purpose. Absence of arbitrariness requires that punishment be tailored to the acts and circumstances of the individual offender. Section 51(e) qua punishment bears little relation to the offender’s particular crime. As to a legitimate penal purpose, neither the record nor common sense supports the claim that disenfranchisement deters crime or rehabilitates criminals. By imposing a blanket punishment on all penitentiary inmates regardless of the particular crimes they committed, the harm they caused, or the normative character of their conduct, s. 51(e) does not meet the requirements of denunciatory, retributive punishment, and is not rationally connected to the government’s stated goal.
The impugned provision does not minimally impair the right to vote. Section 51(e) is too broad, catching many people who, on the government’s own theory, should not be caught. Section 51(e) cannot be saved by the mere fact that it is less restrictive than a blanket exclusion of all inmates from the franchise.
Lastly, the negative effects of denying citizens the right to vote would greatly outweigh the tenuous benefits that might ensue. Denying prisoners the right to vote imposes negative costs on prisoners and on the penal system. It removes a route to social development and undermines correctional law and policy directed towards rehabilitation and integration. In light of the disproportionate number of Aboriginal people in penitentiaries, the negative effects of s. 51(e) upon prisoners have a disproportionate impact on Canada’s already disadvantaged Aboriginal population.
Since s. 51(e) unjustifiably infringes s. 3 of the Charter, it is unnecessary to consider the alternative argument that it infringes the equality guarantee of s. 15(1) of the Charter. Canada's constitution does include an express guarantee of the right to vote, of course, but the US constitution, e.g. in Amendment 14, does acknowledge the "right to vote". incoherently rewritten sentence rewritten |
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