Henry v Canada (Attorney General), 2010 BCSC 610 (4 May 2010)
This case concerned the constitutional validity of voter identification rules, which require electors to provide proof of their identity and residence in order to vote in Canadian federal elections. The Supreme Court of British Columbia found that the relevant provisions of the Canada Elections Act ('the Act') were inconsistent with the right to vote guaranteed under s 3 of the Canadian Charter of Rights and Freedoms ('the Canadian Charter'). However, the Court held that the Act constituted a reasonable limitation on this right, prescribed by law and demonstrably justifiable in a free and democratic society, pursuant to s 1 of the Canadian Charter.
Voter identification rules were introduced into the Act following a 2005 report by the Chief Electoral Officer of Canada ('CEO') on the 2004 general election, and a 2006 report by the House of Commons Standing Committee on Procedure and House Affairs. The Committee's report identified the potential for electoral fraud and error as a key concern for the integrity of the electoral process. Implementing the Committee's recommendations, the Canadian Government amended the Act to include a requirement that electors present forms of acceptable identification to establish their identity and residence, or swear an oath to be vouched for by another elector, before being permitted to vote. These provisions came into force in June 2007. At the time of judgment, they had governed the conduct of seven by-elections and one general election.
The plaintiffs were three Canadian citizens and registered electors who were directly affected by the legislative amendments. Two were advocates for homeless persons and drug users on the exercise of their right to vote, and one an elderly visually impaired person with an active interest in government and public policy. The plaintiffs argued that the voter identification requirements imposed an infringement on the right to vote. They sought:
- a declaration that ss 143(2)-(7), 148.1(1), 161(1), (6) and (7) and 169(2) of the Act were contrary to section 3 of the Canadian Charter, could not be saved by s 1 of the Canadian Charter and were void and of no effect, due to s 52(1) of the Constitution Act 1982; and
- an order that the CEO not apply the amended voter identification rules in elections for the Canadian Parliament.
The Attorney-General of Canada, as defendant in the proceedings, contended that the legislative amendments did not interfere with or restrict the right to vote, but rather safeguarded and enhanced this right, by improving the integrity and equality of the electoral system. The Attorney-General's alternative submission was that the requirements were 'reasonable limits' on the s 3 Canadian Charter rights within the meaning of s 1 of the Canadian Charter.
Infringement of the plaintiffs' rights
The Court described the right to vote in s 3 as a 'core element' of the Canadian Charter and 'foundational to democracy'. It held that this provision, which cannot be overridden by legislation, 'must be given the most liberal and generous interpretation consistent with its purpose'. However, the Court recognised that some limitations on electoral rights are 'inherent' in the language of s 3, such that these rights guarantee meaningful, but not unlimited, participation.
The focus of the Court's attention was s 148.1(1) of the Act, which denies an elector permission to vote if they fail to prove their identity and residence. Significantly, disenfranchisement for failure to comply with a procedural requirement distinguished the present case from cases in which the very purpose of the provisions was to disenfranchise specific groups of citizens based on their identity. The Court observed that the s 3 voting rights possess both positive and negative characteristics, protecting citizens against legislation which removes the right to vote, and requiring governments to create mechanisms enabling the effective exercise of the right.
Section 148.1(1) was found to limit access to the right to vote to those who cannot satisfy the identification requirements. On this basis, the Court concluded that s 148.1(1) was on its face inconsistent with the s 3 Charter guarantee, as it interfered with 'the capacity of each citizen to play a meaningful role in the electoral process'. In addition, the plaintiffs were able to establish that this provision in its effect infringed s 3 of the Canadian Charter. The Court stressed that 'being denied a ballot is an irretrievable deprivation', and constituted 'more than a trivial interference' with voting rights.
The voter identification requirements as reasonable limitations on the right to vote
Section 1 of the Canadian Charter guarantees rights and freedoms 'subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. The Attorney-General of Canada bore the onus to establish, on the balance of probabilities, that the impugned provisions of the Act constituted a reasonable limit on the right to vote protected by s 3 of the Charter.
The Court held that a degree of deference to Parliament was warranted, taking into account the difficulty of measuring the harm involved in voter fraud and error. The defendant's asserted objectives for the impugned provisions were (a) to protect the integrity of the right to vote; and (b) to maintain public confidence in the integrity of the electoral system. The Court agreed that these were both 'pressing and substantial' objectives, and thus capable of justifying limitations on the right.
Whilst the evidence revealed no history of systemic electoral fraud in Canadian federal elections, the Court concluded that the legislation greatly reduced the potential for fraudulent or mistaken voting, and enhanced public confidence in the integrity of the electoral process. Conversely, the Court accepted the inference that the voter identification requirements had acted as a deterrent for a 'small number' of Canadians, particularly the economically disadvantaged, seniors, disabled and those in rural/remote areas. However, there was no clear evidence that any individual citizen had in fact been prevented from voting as a 'sole result' of the requirements, or that they had generated 'declining faith in democracy'.
Balancing these effects, the Court held that the provisions were proportionate, with the legislation's 'salutary effects' outweighing the 'very modest' actual or potential deleterious effects, which amounted to a 'minor inconvenience for a minority of electors'.
Relevance to the Victorian Charter
In Victoria, there are currently no proof of identity or residence requirements for voting in local and state elections. Were such requirements to be introduced, the Henry decision may guide the Supreme Court in its interpretation of s 18(2)(a) of the Victorian Charter ('Taking part in public life'), which provides that ‘Every eligible person has the right, and is to have the opportunity, without discrimination to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors’.
The wording of section s 7(2) of the Victorian Charter, which addresses circumstances in which human rights may be limited, is almost identical to that of s 1 of the Canadian Charter. It provides for 'such reasonable limits as can be demonstrably justified in a free and democratic society'. Thus, the Victorian Supreme Court may adopt the purposive approach taken by the Court in Henry if it were to examine the compatibility of legislative provisions affecting electoral rights with the right to vote protected under the Victorian Charter.
Further, in the recent case of R v Momcilovic  VSCA 50 (17 March 2010), the Victorian Court of Appeal held that interpretation of legislation in accordance with the Victorian Charter human rights framework, as provided by ss 32(1) and 7(2), required that 'all possible interpretations of the provisions in question' be explored, and that an interpretation be taken which 'least infringes Charter rights'. This approach sees Victorian law accord with the Canadian Henry decision, which found that Canadian statutory provisions are to be interpreted so as to maximise the realisation of Charter rights.
The decision is available at www.courts.gov.bc.ca/jdb-txt/SC/10/06/2010BCSC0610.htm.
Georgina Dimopoulos is a Law Graduate with Allens Arthur Robinson