The challenge to the law was started by ex-prisoner Richard Suave, who had been serving a life sentence for murder until being recently released on parole. Suave, a former motorcycle gang member from Ontario, has now earned a university degree and continues to advocate for voting rights of prisoners. Along the way, several prisoners from the Stony Mountain Penitentiary in Manitoba joined in the suit.
The court's 5-4 division was apparently grounded in differing fundamental philosophies: The majority giving priority to individual rights on the one hand with the minority affording deference to Parliament on the other.
At issue in the case was a section of the 1993 Canada Elections Act that barred prisoners serving sentences of two years or more from voting in federal elections. Since prisoners serving terms shorter than two years do their time in provincial jails, the new law affected only federal prisoners.
In writing for the majority, Chief Justice Beverley McLaughlin wrote, "The right to vote is fundamental in our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination."
But the minority, led by Justice Charles Gothier, said the court should not substitute its opinion in place of Parliament's.
"The issue before this court is not whether or not Parliament has made a proper policy decision, but whether or not the policy decision chosen is . . . among those permitted," wrote Gonthier.
As long as legislators make a "reasonable" choice among the possible alternatives, judges should not interfere, added Gonthier.
Government lawyers had contended that the voting ban was justified because (1) It sent a message to prisoners concerning the importance of the rule of law, (2) Allowing prisoners to vote would demean the electoral system, and (3) Loss of the right to vote is a legitimate punishment in addition to a prison term.
But the court rejected all those contentions, meaning the legislators must find a radical new approach if they again want to try to ban prisoners from voting. One suggested alternative was to raise the cut-off point for voting to those serving a 10-year sentence, or basing the ban on the nature of the crime rather than the length, or simply leaving the decision up to the sentencing judge.
However, according to Vic Toews, the Canadian Alliance justice critic, "There's frankly only one alternative, and that is to table a constitutional amendment."
The law struck down in November actually replaced an earlier version that was overturned by the Supreme Court nine years ago. In the earlier law, the Parliament had banned voting by all prisoners regardless of the length of their sentence.
Liberal House leader Don Boudria, who was responsible for the Canada Elections Act, vowed to rewrite the law to find a new way to ban voting by prisoners.
For the time being though, the ruling stands. And Fergus O'Connor, the attorney who represented Suave, described the high court's ruling simply as a "happy day for democracy."
The ruling leaves the United States as one of the very few "democracies" in the world to totally disenfranchise all prisoners.
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