WestlawNext Canada insight Blog

Digest of the Week — The Charter and Election Fraud

Henry v. Canada (Attorney General) |  (WestlawNext Canada)
2014 CarswellBC 177 |  (Westlaw Canada)
British Columbia Court of Appeal

Public law | Elections | Voters | Right to vote | In federal and provincial elections | Miscellaneous

Proof of identity and residency — In 1997, Parliament enacted amendments to Canada Elections Act which required electors to produce photo identification or two pieces of acceptable non-photo identification or swear oath to establish that elector was “ordinarily resident” in riding — Pursuant to s. 148.1(1) of Act as amended, purported elector not complying with identification and proof of residency requirements was not entitled to cast ballot in election of Members of Parliament — Plaintiffs brought action for declaration that amendments were unconstitutional and of no force or effect as impairing plaintiffs’ right to vote, democratic right as guaranteed by s. 3 of Canadian Charter of Rights and Freedoms — Trial judge held that amendments violated s. 3 of Charter, but that amendments were reasonable limit on voting rights demonstrably justified in free and democratic society and thus “saved” by operation of s. 1 of Charter — Action was accordingly dismissed and plaintiffs appealed — Appeal dismissed — Trial judge’s finding that amendments violated s. 3 of Charter was unassailable — Integrity of Parliamentary elections generally clearly constituted pressing and substantial objective for purpose of s. 1 Charter analysis — Parties essentially conceded that present case turned on minimal-impairment element of s. 1 Charter analysis — Plaintiffs were unable to advance reasonable and effective alternate means of meeting rational objective of preventing spectre of electoral fraud which would impair s. 3 Charter rights less than would impugned amendments — While minute risk of partisan abuse of amendments did exist, those deleterious effects were outweighed by goals of pressing and substantial objective in present case, impugned amendments were saved by s. 1 of Charter and appeal was accordingly properly dismissed.
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