It seems like a long time since I’ve blogged about a court decision, especially one not by the Supreme Court. Today is a perfect day to return to that particular genre, because the decision I want to write about, Henry v. Canada (Attorney General), 2014 BCCA 30, concerns the constitutionality of voter identification requirements for federal imposed by Parliament in 2007 ― and which are about to be tightened if the reforms announced by the government today are enacted.

The Canada Elections Act now provides that a voter must present either a single piece of government-issued identification bearing his or picture and address, or two pieces of identification of a list established by the Chief Electoral Officer, both of them bearing the voter’s name, and one, his or her address. (The list of acceptable documents is quite long, and includes not only government-issued identity cards, but also cards issued by schools, libraries, and hospitals, as well as bills and government benefit cheques). Alternatively, a voter may swear an oath and be vouched for by another voter resident in the same district and who has neither vouched for any other voter nor been vouched for him- or herself.

The plaintiffs in Henry claimed that these identification requirements are a violation of the right to vote, protected by s. 3 of the Canadian Charter of Rights and Freedoms. The option of being swearing an oath and being vouched for is, in their view, insufficient to remedy to potential disenfranchisement of voters unable to present the required documents. They contended that a voter should only have to swear an oath, without having to be vouched for. At least, any voter should be able to vouch for another one, regardless of residence, having vouched for others, or been vouched for.

The Court of Appeal accepted the appellants’ claim that the identification requirements amounted to a violation of s. 3 of the Charter. Writing for the Court, Justice Ryan concludes that

the rights given under s. 3 of the Charter are restricted only by citizenship and connection to an electoral district.  This follows from the wording ofs. 3 of the Charter which provides that citizens have the right to vote “in an election of members of the House of Commons or of a legislative assembly”.

Any additional requirements, even if they are, as those at issue here, intended to enhance the integrity of the electoral system, must be justified under s. 1 of the Charter. The purpose of s. 3, which the Supreme Court defined as guaranteeing a right to a meaningful participation in the electoral process, is relevant to defining the “implicit rights”  that it protects alongside the “explicit” right to actually vote, but when that right itself is impeded, no additional inquiry is necessary to find a breach of s. 3.

The question, then, is whether the voter identification requirements imposed by Parliament are “demonstrably justified in a free and democratic society,” under s. 1 of the Charter. After concluding that deference to Parliamentary choices is inappropriate where infringements of the right to vote are at stake, the Court asks itself whether the identification requirements impair that right as little as possible, and whether their negative effects outweigh the positive ones. (The first two elements of the s. 1 analysis, the importance of the legislative objective and the rational connection between the impugned measures and that objective, were not really in dispute.) On the issue of minimal impairment, the Court accepts the finding at first instance

that in both alternatives suggested by the appellants, particularly in the case of a bare oath, there is a meaningless paper trail that cannot be used to detect or punish fraud (par. 92).

Therefore, the legislative objective could not be realized in any other way. As for the balancing of the deleterious and positive effects of the identification requirements, the Court accepts that while the positive effects are quite limited, voter fraud being rare, the deleterious effects will be minimal, as cases of actual disenfranchisement will be rarer still.

The decision is, in a way, quite unsatisfactory. Although I have been worrying about the Supreme Court’s insistence on the importance of evidence in Charter litigation, this is a case where more evidence would have been nice to have. The appellants’ evidence in Henry was largely limited to their personal experience, which is hardly grounds for making any serious conclusions about whether people who want to vote will be disenfranchised. (For what it’s worth, two of the three appellants had, in fact, been able to vote, despite their life circumstances which made obtaining the requisite documents rather more difficult than it is for most people. The third one had not been to vote because she had left the required documents ― which she had ― at home.) The government’s evidence was no better. There have, it said, been occasional prosecutions for voter fraud, but that proves neither that the problem is serious enough to run the risk of disenfranchising citizens, even very few of them, nor that the old rules were insufficient.

In any case if the government wants to tighten the identification rules and abolish the vouching procedure (it is not clear how just yet, because the text of its bill is not available on Parliament’s website as I’m writing this), the Henry decision is likely to be more important for what it says about the courts’ approach to such cases than for its actual holding, which the reform would render moot. Even on this point, however, Justice Ryan’s opinion is a frustrating one. On the one hand, the Court rejected any deference to Parliament. On the other, it accepted the government’s arguments without much evidence to support them. All we know, then, is that the current identification requirements are constitutional. Whether more stringent requirements would be ― and even how courts would go about deciding that question ― is anybody’s guess.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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