Two Decades of Prisoner Voting Rights

Feb. 27, 2013

Over half of all federal prisoners voted in the last national election – a hard-fought right earned two decades ago through the efforts of a convicted murderer.

In 1993, the Supreme Court of Canada forced Parliament to reconsider federal prohibitions on prisoners voting – a major step towards enfranchising one of the final groups of Canadians without voting rights.

It took prisoners keen to claim their rights – and educate fellow inmates about voting to make enfranchisement a reality, said Graham Stewart, who worked for the John Howard Society for 40 years, and was the executive director from 1996 to 2007.

“Many guys inside don’t really have a clue how to vote or who to vote for,” he said.

Inmate Rick Sauvé began his challenge to the Canada Elections Act in 1984, while serving a life sentence for murder. While some provinces already allowed prisoners to vote, they were barred from voting in federal elections. Sauvé wasn’t the only prisoner to head to court; in 1991, Walter Belczowski also challenged the ban. His case was heard alongside Sauvé’s in the 1993 Supreme Court ruling.

Kingston lawyer Fergus J. O’Connor shepherded Sauvé’s case through the legal system. It was funded entirely through Legal Aid Ontario.

“I took the case because I believed it was the right thing to do,” O’Connor said in an email. The government had already made it clear that prisoners retained any rights that were not lost as a direct result of incarceration.

“It followed that our country was being hypocritical to say that and yet deny the right to vote to those confined,” he said.

Sauvé lost his challenge in the Ontario Superior Court, but the Ontario Court of Appeal ruled in 1992 that a blanket ban on inmates voting was unconstitutional.

As a result, inmates were able to cast ballots in the 1992 referendum on the Charlottetown Accord. However, Elections Canada has no data on the number of prisoners who took that first opportunity to vote.

The Government of Canada appealed both the Sauvé and Belczowski cases to the Supreme Court. In 1993, the court dismissed the government’s appeal, and upheld the lower court rulings that the ban was unconstitutional.

While a landmark ruling, the impact was blunted because Parliament simply responded by narrowing the scope of the law to allow prisoners serving sentences of less than two years to vote.

Sauvé challenged the law again, and for nearly a decade, the case worked its way through the courts.

Stewart, who knew Sauvé, said he was critical to the success of the entire 18-year process.

“Rick Sauvé was prepared to be the complainant,” he said, “and was around long enough to see it through.”

In fighting to maintain restrictions on prisoners voting, Stewart said that the government “pulled out all the stops.”

O’Connor said the challenge in the courtrooms was the “cerebral nature” of the case, where the nature of law was debated, not the facts of the case. O’Connor said he argued with the government on the history of modern political thought since Socrates.

After a loss in the Federal Court of Appeal in 1999, which O’Connor described as “a very rough ride,” the Sauvé case came before the Supreme Court of Canada again in 2002.

In a split decision, the court ruled in favour of prisoners.

“It’s interesting to me why both Liberal and Conservative governments have been so passionately opposed to prisoners’ voting,” said Arthur Schafer, who was an expert witness in the 2002 Sauvé case.

“I would have thought that, since virtually all of these prisoners will be returning to live in society, anything which creates or strengthens bonds of democratic citizenship would be enthusiastically embraced,” he said in an email.

Today, political candidates are able to campaign in prisons, and inmates are able to organize politically.

When election time arrives, prisoners vote by special ballot. The process is complicated slightly by riding issues; prisoners don’t vote in the riding in which they’re incarcerated. Instead, they vote in the last place they lived, or the residence of a family member. Alternately, they could vote in the riding where they were arrested, or where the last court were they were sentenced.

Fifty-four per cent of inmates voted in the 2011 General Election. This was only six per cent lower than the overall turnout rate.

However, Stewart stressed that the advance towards complete enfranchisement for prisoners was not just about inmates. He said that the Court affirmed the rights of all Canadians to vote.

“In the end, the point they made is politicians don’t get to choose their voters.”

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