Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438

The Attorney General of Canada and the Solicitor General of Canada Appellants

v.

Richard Sauvé Respondent

and

The Chief Electoral Officer of Canada Respondent

and

The Attorney General of British Columbia Intervener

and between

Her Majesty The Queen Appellant

v.

Walter Stanley Belczowski Respondent

and

The Attorney General of British Columbia Intervener

Indexed as: Sauvé v. Canada (Attorney General)

File Nos.: 22961 and 22962.

1993: May 27.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

on appeal from the federal court of appeal

Constitutional law ‑‑ Charter of Rights ‑‑ Right to vote ‑‑ Prisoners ‑‑ Canada Elections Act provision disqualifying prisoners from voting unconstitutional ‑‑ Canada Elections Act, R.S.C., 1985, c. E-2, s. 51(e) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 3.

Statutes and Regulations Cited

Canada Elections Act, R.S.C., 1985, c. E-2, s. 51(e).

Canadian Charter of Rights and Freedoms, ss. 1, 3.

APPEAL from a judgment of the Ontario Court of Appeal (Sauvé v. Canada (Attorney General)) (1992), 7 O.R. (3d) 481, 89 D.L.R. (4th) 644, 55 O.A.C. 219, allowing an appeal from a judgment of Van Camp J. (1988), 66 O.R. (2d) 234, 53 D.L.R. (4th) 595, dismissing an application for declaratory relief. Appeal dismissed.

APPEAL from a judgment of the Federal Court of Appeal (Belczowski v. The Queen) dismissing an appeal from a judgment of Strayer J. granting declaratory relief. Appeal dismissed.

I. G. Whitehall, Q.C., and S. D. Clarke, for the appellants.

Fergus J. O'Connor and R. Peter Nappier, for the respondent Richard Sauvé.

Richard A. Stroppel, for the respondent Walter Stanley Belczowski.

Harvey M. Groberman, for the intervener the Attorney General of British Columbia.

//Iacobucci J.//

The judgment of the Court was delivered orally by

Iacobucci J. ‑‑ We are all of the view that these appeals should be dismissed.

The Attorney General of Canada has properly conceded that s. 51(e) of the Canada Elections Act, R.S.C., 1985, c. E-2, contravenes s. 3 of the Canadian Charter of Rights and Freedoms but submits that s. 51(e) is saved under s. 1 of the Charter. We do not agree. In our view, s. 51(e) is drawn too broadly and fails to meet the proportionality test, particularly the minimal impairment component of the test, as expressed in the s. 1 jurisprudence of the Court.

Accordingly, the first constitutional question is answered in the affirmative and the second constitutional question is answered in the negative.

Consequently, both appeals are dismissed with costs.

Judgment accordingly.

Solicitor for the appellants: John C. Tait, Ottawa.

Solicitors for the respondent Richard Sauvé: O'Connor, Bailey & Napier, Kingston.

Solicitors for the respondent Walter Stanley Belczowski: Brimacombe, Sanderman, Stroppel & Finlayson, Edmonton.

Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.