A. Voter Qualifications

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Read literally, the right to vote requires that every citizen have the opportunity to cast a ballot in every election. However, election laws have contained a number of qualifications, most commonly restricting the right to vote to those over a certain age, denying the vote to prison inmates and those in psychiatric institutions, to judges, and to citizens not resident in Canada. Historically, the vote was denied to women, Asians, Indians, and others. In addition, many laws require citizens to have been resident within a territory for a specified period, often several months, before they are eligible to vote.

Section 3 of the Charter provides a right for citizens to vote in federal and provincial elections only. Lower courts have interpreted sec-

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tion 3 not to apply to the vote at the municipal or school board level.2

The Supreme Court has also decided that the right to vote in section 3 of the Charter does not apply to referenda. During the 1992 referendum on constitutional amendments known as the Charlottetown Accord, the Court was asked to determine the validity of a residency requirement. Simultaneous referenda were held in all provinces and territories. In Quebec, the referendum was held under provincial legislation, which required six months’ residence in the province. In all other parts of Canada, the referenda took place under federal legislation. Graham Haig, having recently moved to Quebec from Ontario, was disqualified under the Quebec legislation because he did not meet the provincial residency requirement. He could not qualify under federal legislation, which required residence in a polling division in the federal referendum area. Haig challenged the failure to include him under the federal election legislation, but his claim was dismissed on the ground that section 3 applied only to federal and provincial elections and did not guarantee the right to vote in a referendum.3Generally, residency requirements have been found to be reasonable limits on voting rights justifiable under section 1 of the Charter, in light of the widespread use of territorial representation in the Canadian system of government. As most representatives are elected in a geographically determined riding or constituency, a residency requirement ensures that only individuals with substantial ties to a locality have a right to select its representative. A period of residency also contributes to the voter’s knowledge of the issues affecting that community. As well, residency requirements protect the integrity of the election process by preventing individuals from coming into the riding temporarily to disrupt voting patterns.4Section 3 has also been invoked in election recount cases. The Court has taken a "substantive approach"

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to determining whether a new election should be ordered as a result of voting irregularity on the basis that such an approach best reflects the purpose of the right to vote.5Some voter qualifications are linked to the concept of competency. For example, the requirement that a voter be eighteen years of age rests on the assumption that a certain age is a standard for measuring maturity and responsibility. Formerly, judges were disqualified from voting in order to preserve the appearance of...

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