Sauvé v. Canada (Chief Electoral Officer) et al., (2002) 294 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 10, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2002), 294 N.R. 1 (SCC);2002 SCC 68

Sauvé v. Can. (2002), 294 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. OC.048

Richard Sauvé (appellant) v. The Attorney General of Canada, the Chief Electoral Officer of Canada and the Solicitor General of Canada (respondents)

Sheldon McCorrister, Chairman, Lloyd Knezacek, Vice Chairman, on their own behalf and on the behalf of the Stony Mountain Institution Inmate Welfare Committee, and Clair Woodhouse, Chairman, Aaron Spence, Vice Chairman, on their own behalf and on the behalf of the Native Brotherhood Organization of Stony Mountain Institution, and Serge Bélanger, Emile A. Bear and Randy Opoonechaw (appellants) v. The Attorney General of Canada (respondent) and The Attorney General for Alberta and the Attorney General of Manitoba, the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, the British Columbia Civil Liberties Association, the Aboriginal Legal Services of Toronto Inc. and the Canadian Bar Association (interveners)

(27677; 2002 SCC 68; 2002 CSC 68)

Indexed As: Sauvé v. Canada (Chief Electoral Officer) et al.

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

October 31, 2002.

Summary:

Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serv­ing a sentence of two years or more were not qualified to vote. The plaintiffs, who were inmates or former inmates of correc­tional institutions, challenged the constitu­tionality of s. 51(e), arguing that it contra­vened ss. 3 and 15(1) of the Charter.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 106 F.T.R. 241, found that s. 51(e) of the CEA did not contravene s. 15(1) of the Charter. However, the court held that s. 51(e) contravened s. 3 of the Charter and was not saved by s. 1. The Crown appealed. While the Crown conceded that s. 51(e) of the CEA violated s. 3 of the Charter, it argued that the provision was saved by s. 1 of the Charter. The plain­tiffs cross-appealed, arguing that s. 51(e) of the CEA violated s. 15(1) of the Charter.

The Federal Court of Appeal, in a decision reported at 248 N.R. 267, allowed the Crown's appeal, holding that s. 51(e) of the CEA was a reasonable limit under s. 1 of the Charter. Desjardins, J.A., dissented on that issue and would have dismissed the appeal. The court unanimously dismissed the cross-appeal. The plaintiffs appealed.

The Supreme Court of Canada, Gonthier, L'Heureux-Dubé, Major and Bastarache, JJ., dissenting, allowed the appeal. The court held that s. 51(e) infringed s. 3 of the Char­ter and was not justified under s. 1. It fol­lowed that s. 51(e) was of no force or effect by operation of s. 52 of the Constitution Act, 1982. The majority of the court found it unnecessary to consider whether s. 51(e) infringed s. 15(1) of the Charter. The dis­senting judges held that s. 51(e) did not violate s. 15(1) of the Charter.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions (incl. restrictions on prisoners) - Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serving a sentence of two years or more were not qualified to vote - It was conceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrably justified under s. 1 of the Charter - The Supreme Court of Canada held that s. 51(e) was not justified under s. 1 - The court held that the government's stated objectives of promoting civic responsibility and respect for the law and imposing appropriate punishment, while problematically vague, were capable in principle of justifying limitations on Charter rights - However, the government failed to establish pro­portionality, where there was no rational connection between denying the vote to penitentiary inmates and the gov­ernment's stated goals - The court further held that if a connection could be shown between the denial of the right to vote and the govern­ment's objectives, then the class denied the vote was too broad (minimal impairment test) and the negative effects of denying citizens the right to vote would greatly outweigh the tenuous benefits that might ensue (proportionate effect test) - See paragraphs 28 to 63.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restric­tions (incl. re­strictions on prisoners) - Section 51(e) of the Canada Elec­tions Act (CEA) provided that persons who were imprisoned in a correctional institution serv­ing a sentence of two years or more were not qualified to vote - It was con­ceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrab­ly justified under s. 1 of the Char­ter - One of the objectives asserted by the government as a reason for the denial of the right to vote was to enhance civic responsibility and respect for the rule of law - The govern­ment submitted, inter alia, that depriv­ing penitentiary inmates of the vote sent an "educative mess­age" about the importance of respect for the law to inmates and the citizenry at large - The Supreme Court of Canada held that punitive disen­fran­chise­ment of inmates did not send the "educa­tive mes­sage" that the govern­ment claimed and that, to the con­trary, it under­mined that mess­age and was incom­patible with the basic tenets of partici­pa­tory dem­oc­racy contained in and guaranteed by the Charter - See paragraphs 30 to 41.

Civil Rights - Topic 126

Voting and other demo­cratic rights - Right to vote - Restrictions (incl. restric­tions on prisoners) - Section 51(e) of the Canada Elections Act (CEA) pro­vided that persons who were imprisoned in a correctional institution serving a sen­tence of two years or more were not qual­ified to vote - It was con­ceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrably justified under s. 1 of the Charter - One of the objec­tives asserted by the govern­ment as a reason for the denial of the right to vote was to enhance civic responsibility and respect for the rule of law - The govern­ment sub­mitted, inter alia, that al­lowing peni­tentiary inmates to vote demeaned the political system - The Supreme Court of Canada stated that "We should reject the retrograde notion that 'worthiness' qualifi­cations for voters may be logically viewed as enhancing the political pro­cess and respect for the rule of law ... 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, its exclu­sion from the s. 33 override, and the idea that laws com­mand obedi­ence because they are made by those whose conduct they govern" - See paragraphs 42 to 44.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions (incl. restrictions on prisoners) - Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serving a sentence of two years or more were not qualified to vote - It was conceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrably justified under s. 1 of the Charter - The Supreme Court of Canada held that the govern­ment's argument that disenfranchisement was a legitimate weapon in the state's punitive arsenal against the individual lawbreaker could not succeed - First, using the denial of constitutional rights as pun­ishment was problematic - Second, s. 51(e) did not meet the dual requirements that punishment must not be arbitrary and must serve a valid criminal law purpose - Nei­ther the record nor common sense sup­ported the claim that disenfranchisement deterred crime or rehabilitated criminals - Nor did s. 51(e) meet the requirements of denunciatory, retributive punishment - See paragraphs 45 to 52.

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions (incl. restrictions on prisoners) - Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serving a sentence of two years or more were not qualified to vote - The Supreme Court of Canada held that s. 51(e) infringed s. 3 of the Charter and was not justified under s. 1 - The majority of the court found it unnecessary to consider whether s. 51(e) infringed s. 15(1) of the Charter - Gonthier, J., in dissenting reasons (concurred in by L'Heureux-Dubé, Major and Bastarache, JJ.) held that s. 51(e) did not infringe s. 15(1) of the Charter - Gon­thier, J., held that prisoners did not consti­tute a ground analogous to those enumer­ated in s. 15(1) - Gonthier, J., also rejected an argument that imprisonment should be recognized as an analogous ground because of adverse effect or impact discrimination based on the fact that aboriginal peoples made up a disproportionate percentage of prisoners - See paragraphs 189 to 205.

Civil Rights - Topic 910

Discrimination - Adverse effect, indirect or constructive discrimination - [See fifth Civil Rights - Topic 126 ].

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - [See fifth Civil Rights - Topic 126 ].

Civil Rights - Topic 5502

Equality and protection of the law - Whether right to equality abridged - [See fifth Civil Rights - Topic 126 ].

Civil Rights - Topic 5660.1

Equality and protection of the law - Par­ticular cases - Prisoners - [See fifth Civil Rights - Topic 126 ].

Civil Rights - Topic 8316

Canadian Charter of Rights and Freedoms - Application - Proportionality test - [See first Civil Rights - Topic 126 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first Civil Rights - Topic 126 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serving a sentence of two years or more were not qualified to vote - It was con­ceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrably justified under s. 1 of the Charter - The government asserted two broad objectives as the reason for the denial of the right to vote - The Supreme Court of Canada stated that the first objective, enhancing civic responsibil­ity and respect for the law, could be asserted of virtually every criminal law and many non-criminal measures, and that the second objective, to impose additional punishment on people serving penitentiary sentences, was less vague than the first - The court concluded that "the government has failed to identify particular problems that require denying the right to vote, making it hard to say that the denial is directed at a pressing and substantial pur­pose. Nevertheless, despite the abstract nature of the government's objectives and the rather thin basis upon which they rest, prudence suggests that we proceed to the proportionality analysis, rather than dis­missing the government's objectives out­right" - See paragraphs 21 to 26.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serving a sentence of two years or more were not qualified to vote - It was con­ceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrably justified under s. 1 of the Charter - The Supreme Court of Canada disagreed with the gov­ernment's argument that denying the right to vote to penitentiary inmates was a mat­ter of social and political philosophy, requiring deference - The court stated that "Deference may be appropriate on a deci­sion involving competing social and politi­cal policies. It is not appropriate, however, on a decision to limit fundamental rights. This case is not merely a competition between competing social philosophies. It represents a conflict between the right of citizens to vote -- one of the most funda­mental rights guaranteed by the Charter -- and Parliament's denial of that right. Pub­lic debate on an issue does not transform it into a matter of 'social philosophy', shield­ing it from full judicial scrutiny" - The court also did not agree that the philo­sophically-based or symbolic nature of the government's objectives in itself com­manded deference -See paragraphs 12 to 16.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serving a sentence of two years or more were not qualified to vote - It was con­ceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrably justified under s. 1 of the Charter - The Supreme Court of Canada stated that "the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the court should defer to Parliament as part of a 'dialogue'. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Con­stitution. The healthy and important pro­motion of a dialogue between the legisla­ture and the courts should not be debased to a rule of 'if at first you don't succeed, try, try again'" - See paragraph 17.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 51(e) of the Canada Elections Act (CEA) provided that persons who were imprisoned in a correctional institution serving a sentence of two years or more were not qualified to vote - It was con­ceded that s. 51(e) violated the right to vote in s. 3 of the Charter - At issue was whether s. 51(e) was demonstrably justified under s. 1 of the Charter - The Supreme Court of Canada stated that "While defer­ence to the legislature is not appropriate in this case, legislative justification does not require empirical proof in a scientific sense. While some matters can be proved with empirical or mathematical precision, others, involving philosophical, political and social considerations, cannot. In this case, it is enough that the justification be convincing, in the sense that it is sufficient to satisfy the reasonable person looking at all the evidence and relevant consider­ations, that the state is justified in infring­ing the right at stake to the degree it has" -See paragraph 18.

Civil Rights - Topic 8487

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Right to vote - The Supreme Court of Canada held that a broad and purposive interpreta­tion was particularly critical in the case of the right to vote under s. 3 of the Charter -The court stated that "The framers of the Charter signalled the special importance of this right not only by its broad, un­trammelled language, but by exempting it from legislative override under s. 33's notwithstanding clause. I conclude that s. 3 must be construed as it reads, and its ambit should not be limited by countervail­ing collective concerns" - See paragraph 11.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See fifth Civil Rights - Topic 8348 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous cat­egories - [See fifth Civil Rights - Topic 126 ].

Elections - Topic 2065

Voters - Disqualifications - Prisoners - [See first Civil Rights - Topic 126 ].

Prisons - Topic 1117

Administration - Prisoners' rights - Right to vote - [See first Civil Rights - Topic 126 ].

Cases Noticed:

Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438; 153 N.R. 242; 64 O.A.C. 124, refd to. [paras. 2, 77].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [paras. 7, 78].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 11].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 11].

Eldridge et al. v. British Columbia (Attor­ney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [paras. 11, 200].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [paras. 12, 191].

Sauvé v. Canada (Attorney General) (1992), 55 O.A.C. 219; 7 O.R.(3d) 481 (C.A.), refd to. [paras. 14, 70].

Belczowski v. Canada, [1992] 2 F.C. 440; 132 N.R. 183 (F.C.A.), refd to. [para. 14].

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1, refd to. [para. 16].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [paras. 16, 81].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. c. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [paras. 16, 90].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [paras. 18, 90].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [paras. 18, 76].

Canadian Disability Rights Council et al. v. Canada, [1988] 3 F.C. 622; 21 F.T.R. 268 (T.D.), refd to. [para. 33].

Muldoon and Teitelbaum v. Canada, [1988] 3 F.C. 628; 21 F.T.R. 154 (T.D.), refd to. [para. 33].

August v. Electoral Commission, [1999] 3 S.A.L.R. 1 (South Africa Const. Ct.), refd to. [para. 35].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [paras. 48, 186].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 49].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [paras. 60, 204].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 75].

Reference Re Provincial Electoral Bound­aries (Sask.), [1991] 2 S.C.R. 158; 127 N.R. 1; 94 Sask.R. 161, refd to. [para. 78].

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; 96 N.R. 321; 23 Q.A.C. 182, refd to. [para. 80].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 82].

Harvey v. New Brunswick (Attorney Gen­eral) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, refd to. [para. 86].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 86].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [para. 90].

Irwin Toy Ltd. v. Québec (Procureur gén­éral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 90].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 98].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 98].

Canada (Auditor General) v. Canada (Min­ister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 98].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 104].

Jolivet v. Canada (1983), 1 D.L.R.(4th) 604 (B.C.S.C.), refd to. [para. 105].

Gould v. Canada (Attorney General) et al., [1984] 2 S.C.R. 124; 53 N.R. 394, affing. [1984] 1 F.C. 1133; 54 N.R. 232 (F.C.A.), reving. [1984] 1 F.C. 1119 (T.D.), refd to. [para. 105].

Lévesque v. Canada (Attorney General), [1986] 2 F.C. 287 (T.D.), refd to. [para. 105].

Badger et al. v. Manitoba (1986), 39 Man.R.(2d) 107; 30 D.L.R.(4th) 108 (Q.B.), affd. (1986), 39 Man.R.(2d) 230; 32 D.L.R.(4th) 310 (C.A.), refd to. [para. 105].

Badger v. Manitoba (Attorney General) et al. (1988), 55 Man.R.(2d) 211 (Q.B.), revd. (1988), 55 Man.R.(2d) 198; 55 D.L.R.(4th) 177 (C.A.), leave to appeal refused [1989] 1 S.C.R. v; 102 N.R. 155; 62 Man.R.(2d) 80, refd to. [para. 105].

Sauvé v. Canada (Attorney General) (1988), 66 O.R.(2d) 234 (H.C.), revd. (1992), 55 O.A.C. 219; 7 O.R.(3d) 481 (C.A.), refd to. [para. 105].

Belczowski v. Canada, [1991] 3 F.C. 151; 42 F.T.R. 98 (T.D.), [1992] 2 F.C. 440; 132 N.R. 183 (F.C.A.), refd to. [para. 105].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1, refd to. [para. 107].

Pearson v. Secretary of State for the Home Department, [2001] E.W.J. No. 1566, refd to. [para. 108].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 115].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 115].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 115].

Haig et al. v. Canada; Haig et al. v. Kings­ley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 118].

Driskell et al. v. Manitoba (Attorney Gen­eral), [1999] 11 W.W.R. 615; 140 Man.R.(2d) 49 (Q.B.), refd to. [para. 123].

Byatt v. Dykema - see Byatt et al. v. Alberta et al.

Byatt et al. v. Alberta et al. (1998), 216 A.R. 100; 175 W.A.C. 100; 158 D.L.R.(4th) 644 (C.A.), refd to. [para. 123].

Richardson v. Ramirez (1974), 418 U.S. 24 (S.C.), refd to. [para. 126].

X v. Netherlands, [1974] 1 D.R. 87 (Eur. H.R.C.), refd to. [para. 127].

H v. Netherlands, [1983] 33 D.R. 242 (Eur. H.R.C.), refd to. [para. 127].

Holland v. Ireland, [1998] 93-A D.R. 15 (Eur. H.R.C.), refd to. [para. 127].

Mathieu-Mohin v. Belgium, [1987] 10 E.H.R.R. 1 (Eur. Ct. Hum. Rgts.), refd to. [para. 129].

Lavigne v. Ontario Public Service Employ­ees' Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 149].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 150].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 160].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 175].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 175].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 186].

R. v. Guiller (1986), 48 C.R.(3d) 226 (Ont. Dist. Ct.), refd to. [para. 186].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 186].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 190].

Jackson v. Joyceville Penitentiary Disci­plinary Tribunal, [1990] 3 F.C. 55; 32 F.T.R. 96 (T.D.), refd to. [para. 193].

McKinnon v. Minister of National Rev­enue (1991), 91 D.T.C. 1002 (Tax C.C.), refd to. [para. 193].

Armstrong v. Canada, [1996] 1 C.T.C. 2745 (Tax C.C.), refd to. [para. 193].

Mulligan v. Canada, [1997] 2 C.T.C. 2062 (Tax C.C.), refd to. [para. 193].

Wells v. Canada, [1998] 1 C.T.C. 2118 (Tax C.C.), refd to. [para. 193].

Olson v. Canada, [1996] 2 F.C. 168; 107 F.T.R. 81 (T.D.), leave to appeal refused [1997] 3 S.C.R. xii, refd to. [para. 193].

Alcorn et al. v. Commissioner of Correc­tions (Can.) et al. (1999), 163 F.T.R. 1 (T.D.), affd. (2002), 289 N.R. 391 (F.C.A.), refd to. [para. 193].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 194].

Statutes Noticed:

Canada Elections Act, R.S.C. 1985, c. E-2, sect. 51(e) [para. 2].

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 3, sect. 15(1) [para. 2].

Authors and Works Noticed:

Beatty, D.M., Human Rights and Judicial Review: A Comparative Perspective (1994), 267, p. 275 [para. 20].

Canada, House of Commons Debates (April 2, 1993), 3rd Sess., 34th Parl., vol. 14, pp. 18015 to 18021 [para. 165].

Canada, Royal Commission on Electoral Reform and Party Financing, Final Report of the Royal Commission on Electoral Reform and Party Financing -- Reforming Electoral Democracy (1991), vol. 1, generally [para. 106].

Canada, Senate and House of Commons, Special Joint Committee on the Constitu­tion of Canada, Minutes of Proceedings and Evidence (January 22, 1981), Issue No. 43, 1st Sess., 32nd Parl., pp. 43:79 to 43:90 [para. 85].

Dworkin, Ronald, Taking Rights Seriously (1977), p. 255 [para. 113].

George, Robert P., Making Men Moral (1993), pp. 169, 170 [para. 112].

Grimm, Dieter, Human Rights and Judicial Review in Germany in Beatty, D.M., Human Rights and Judicial Review: A Comparative Perspective (1994), 267, p. 275 [para. 20].

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Counsel:

Fergus J. O'Connor, for the appellant, Richard Sauvé;

Arne Peltz, for the appellants, Sheldon McCorrister, Lloyd Knezacek, Clair Woodhouse, Aaron Spence, Serge Bélan­ger, Emile A. Bear and Randy Opoon­echaw;

David G. Frayer, Q.C., and Gérald L. Chartier, for the respondents;

Thomas W. Wakeling and Gerald D. Chipeur, for the intervener, the Attorney General of Alberta;

Heather S. Leonoff, Q.C., for the intervener, the Attorney General of Man­itoba;

Allan Manson and Elizabeth Thomas, for the interveners, the Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada;

John W. Conroy, Q.C., for the intervener, the British Columbia Civil Liberties Association;

Kent Roach and Brian Eyolfson, for the intervener, the Aboriginal Legal Services of Toronto Inc.;

Sylvain Lussier, for the intervener, the Canadian Bar Association.

Solicitors of Record:

Fergus J. O'Connor, Kingston, Ontario, for the appellant, Richard Sauvé;

Public Interest Law Centre, Winnipeg, Manitoba, for the appellants, Sheldon McCorrister, Lloyd Knezacek, Clair Woodhouse, Aaron Spence, Serge Bélan­ger, Emile A. Bear and Randy Opoon­echaw;

The Department of Justice, Winnipeg, Manitoba, for the respondents;

Fraser Milner Casgrain, Edmonton, Alberta, for the intervener, the Attorney General for Alberta;

The Department of Justice, Winnipeg, Manitoba, for the intervener, the Attor­ney General of Manitoba;

Allan Manson, Queen's University, Kings­ton, Ontario, Elizabeth Thomas, Kings­ton, Ontario, for the interveners, the Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada;

Conroy & Co., Abbotsford, British Col­umbia, for the intervener, the British Columbia Civil Liberties Association;

The Aboriginal Legal Services of Toronto - Legal Clinic, Toronto, Ontario, for the intervener, the Aboriginal Legal Services of Toronto Inc.;

Desjardins Ducharme Stein Monast, Mon­treal, Quebec, for the intervener the Canadian Bar Association.

This appeal was heard on December 10, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastar­ache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on October 31, 2002, including the following opinions:

McLachlin, C.J.C. (Iacobucci, Binnie, Arbour and LeBel, JJ., concurring) - see paragraphs 1 to 64;

Gonthier, J., dissenting (L'Heureux-Dubé, Major and Bastarache, JJ., con­curring) - see paragraphs 65 to 208.