T-2354-85
Jean-Louis Lévesque (Plaintiff)
v.
Attorney General of Canada, Solicitor General of
Canada and Warden of Leclerc Institution
(Defendants)
and
Chief Electoral Officer of Quebec
and
Commission des droits de la personne of Quebec
and
Société québecoise de droit international
and
International Federation of Human Rights (Mis-
en- cause)
INDEXED AS: LÉVESQUE v. CANADA (A TTORNEY GENERAL)
Trial Division, Rouleau J.—Montreal, November
26; Ottawa, November 26, 1985.
Constitutional law — Charter of Rights — Democratic
rights — Right to vote — Right of inmate in federal peniten
tiary to vote in provincial general election — Limitation on
inmate's constitutionally guaranteed right to vote not reason
able limit demonstrably justified in free and democratic socie
ty — Administrative and security reasons for limitation not
valid — Mandamus available against Crown or servant of
Crown pursuant to Charter ss. 24, 32 and 52 — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 1, 3, 24, 32, 52 — Election Act, S.Q. 1979, c. 56 —
International Covenant on Civil and Political Rights, CTS
1976/47.
Elections — Right of inmate in federal penitentiary located
in Quebec to vote in Quebec general election — Failure of
previous attempts, through administrative agreement, court
action and submission to United Nations Human Rights Com
mittee, to permit inmates in federal penitentiaries to exercise
right to vote — Withholding of inmate's right to vote not
reasonable limit demonstrably justified in free and democratic
society — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 3, 24, 32, 52 — Election Act,
S.Q. 1979, c. 56 — International Covenant on Civil and
Political Rights, CTS 1976147.
Judicial review — Prerogative writs — Mandamus —
Requiring authorities to take necessary steps to permit voting
at provincial election by penitentiary inmate — Common law
rule no mandamus against Crown or public servants — Over
turned by Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 32 and 52.
Penitentiaries — Inmate of federal penitentiary in Quebec
— Seeking declaration of right to vote at provincial elections
and mandamus requiring authorities to facilitate exercise of
right — Denial of right to vote not justified on administrative
or security grounds — Solicitors General having failed to act
on initiatives of Chief Electoral Officer of Quebec — Man-
damus must issue.
Practice — Parties — Intervention — Constitutional matter
— Applicable criteria — Intervention refused in view of
urgency of rendering judgment and fact arguments of mis -en-
cause amply advanced by plaintiff.
The plaintiff, an inmate in a federal penitentiary located in
the province of Quebec, wanted to vote at the 1985 Quebec
general election. To that end, he sought a declaration that he
was entitled to vote at that and at any other subsequent
provincial election. Also sought was a writ of mandamus
requiring the defendants to take the necessary and proper
action to give effect to that right.
Held, a declaration should be granted recognizing the plain
tiff's right to vote and a mandamus should issue against the
defendants to give it effect.
A preliminary motion to allow the intervention of one of the
mis -en-cause is dismissed. Although this is a constitutional
matter where intervention is normally more readily permitted,
it was urgent that judgment be rendered as soon as possible and
the arguments of the mis -en-cause are amply advanced by the
plaintiff.
It is clear that the plaintiffs right to vote, guaranteed by
section 3 of the Charter, was infringed. It was established in
Gould v. Attorney General of Canada that administrative or
security reasons do not justify denying inmates the right to
vote. Nor does imprisonment necessarily entail the loss of that
right. In short, imprisonment in a federal penitentiary does not
constitute a reasonable limit, on the right to vote, which could
be demonstrably justified in a free and democratic society.
With respect to mandamus, section 3 of the Charter implicit
ly recognizes, as regards the exercise of the right to vote, a
specific public duty on the part of the federal government, and
section 24 enables the Court to issue a writ of mandamus. And
while it is a common law rule that mandamus will not issue
against the Crown or against public servants acting exclusively
in that capacity, adoption of Charter sections 32 and 52 had
overturned the law on that point.
CASES JUDICIALLY CONSIDERED
APPLIED:
Gould v. Attorney General of Canada, [1984] 1 F.C.
1119 (T.D.); Minister of Finance of British Columbia v.
The King, [1935] S.C.R. 278; Federal Republic of Ger-
many v. Rauca (1982), 38 O.R. (2d) 705 (H.C.).
CONSIDERED:
Attorney General of Canada v. Gould, [1984] 1 F.C.
1133 (C.A.).
COUNSEL:
Renée Millette, Daniel Turp, Irwin Cotler for
plaintiff.
Annie Côté, Stephen Barry for defendants.
Lucie Nadeau for Commission des droits de la
personne of Quebec.
SOLICITORS:
Renée Millette, Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following is the English version of the
reasons for judgment rendered by
ROULEAU J.: Before considering the substance
of the matter, I would like to dispose of a prelim
inary motion by the plaintiff to allow the interven
tion of one of the mis -en-cause, namely the Com
mission des droits de la personne of Quebec.
A number of criteria established in earlier cases
must be taken into account in considering such a
motion. The four applicable are:
(1) Is the mis -en-cause directly affected by the
outcome of the trial?
(2) Is the position of the mis -en-cause ade
quately defended by one or other of the
parties to the case?
(3) Are the interests of justice better served by
the intervention of the mis -en-cause?
(4) Can the Court hear and decide the cause on
its merits without the intervention of the
mis -en-cause?
Of course, there is no watertight division be
tween these various criteria: the appropriateness of
such an intervention will be determined by the
answers to these questions as a whole. Overall, the
answers to these questions do'not appear to favour
intervention by the mis -en-cause in the case at bar,
and this is why I have dismissed the motion to
intervene. I do realize that an intervention in a
constitutional matter cannot be compared with, for
example, an intervention in a tax matter or on a
patent. In the case of the former, the conditions
imposed by earlier authority might more readily be
circumvented, except that the urgency of rendering
judgment as soon as possible in the case at bar and
the fact that the arguments of the mis -en-cause
are amply reiterated by the plaintiff in his state
ment of claim oblige me to dismiss the motion.
The plaintiff is seeking the following:
[TRANSLATION] (A) a declaration that he is entitled to vote in
the provincial general election to be held on December 2, 1985,
and in any other subsequent provincial election;
(B) a declaration that the defendants have a duty and an
obligation, in their respective capacities, to comply with the
Quebec Election Act, and cause it to be complied with, and in
particular, the provisions contained in sections 203 and 217
inclusive, regarding the RIGHT OF INMATES TO VOTE and THE
EXERCISE OF THAT RIGHT, and therefore to take the necessary
and proper action to give effect to the right of inmates to vote
and the exercise of that right;
(C) so as to give effect to conclusions A and B, ISSUE A WRIT
OF MANDAMUS with the following orders:
(1) Order the Warden of the Leclerc Institution:
(a) to draw up a list of the inmates in that establishment
who are electors, as provided in section 204 of the Quebec
Election Act;
(b) to ask every inmate if he wishes to be registered on the
list of electors and verify with him the accuracy of the
particulars concerning him, as provided by section 204 of
the Quebec Election Act;
(c) to send the list of electors to the Chief Electoral
Officer of Quebec not later than the sixteenth day preced
ing polling day, as provided by section 204 of the Quebec
Election Act;
(d) to make an agreement with the Chief Electoral Officer
of Quebec at the earliest possible opportunity on a valid
procedure to establish a specific and secure mechanism for
a vote by the inmates, along the lines of the memorandum
prepared by the Chief Electoral Officer of Quebec, which
the latter has been trying to submit to the defendants for
six years, filed as Exhibit G of the affidavit of JEAN-LOUIS
LEVESQUE, as provided by section 217 of the Quebec
Election Act;
(2) Ordering the Solicitor General of Canada at the earliest
possible opportunity to give the proper directions to the
wardens of the institutions concerned and all other persons
employed and working for the Correctional Service of
Canada to allow the mis -en-cause, the Chief Electoral Offi
cer of Quebec, and/or his authorized representatives, to do
what is required by the Quebec Election Act to enable
inmates in federal penitentiaries to vote, along the lines of
those indicated in the memorandum of agreement prepared
by the Chief Electoral Officer of Quebec, filed in support
hereof as Exhibit G of the affidavit of JEAN-LOUIS
LEVESQUE, as provided by section 217 of the Quebec Elec
tion Act;
(3) any other order that shall be necessary to give effect to
any eventual favourable judgment on conclusions A and B;
(D) any other remedy which this honourable Court shall con
sider appropriate.
FACTS:
The plaintiff is at present an inmate in a federal
penitentiary located in the province of Quebec and
would like to vote in the forthcoming Quebec
general election, to be held on December 2, 1985. I
must digress here to indicate the background to
the action at bar for a declaratory judgment.
First, it should be said that in spring 1980 the
Chief Electoral Officer of Quebec contacted the
then Solicitor General several times, as well as his
various successors (cf. the affidavit of Paul -René
Lavoie filed with this action) with a view to arriv
ing at an administrative agreement allowing
inmates in federal institutions to vote in the 1981
provincial general election. The three Solicitors
General who succeeded each other in this position
during that period refused to act on the initiatives
of the Chief Electoral Officer of Quebec, or simply
ignored them. Moreover, I note that five years
have elapsed since the request by the Chief Elec
toral Officer of Quebec, and that nothing has been
done to date.
In March 1981, some time before the vote was
held, the plaintiff at bar and two other inmates
tried to obtain an interlocutory injunction direct
ing the Solicitor General not to impede them in
exercising their right to vote, and to give the
penitentiary authorities orders to this effect. This
application was dismissed by Marceau J. of the
Federal Court of Canada because, inter alia, the
plaintiffs had not used the correct procedure. On
December 10, 1981 the then plaintiffs made a
submission to the United Nations Human Rights
Committee and filed a complaint pursuant to the
International Covenant on Civil and Political
Rights, CTS 1976/47. The United Nations
Human Rights Committee reversed its initial deci
sion on the admissibility of the submission and
found that the submission was inadmissible as the
plaintiffs had not exhausted their available domes
tic remedies, and could apply to the Federal Court
in an effort to obtain a declaratory judgment. This
decision of the Committee was communicated to
them in April 1985. On November 13, 1985 the
plaintiff at bar filed this action for a declaratory
judgment. That is a summary of the course of
events.
I note that the amended statement of claim at
bar repeats the same allegations as the one submit
ted to Marceau J. in 1981, except for the relief
sought and the inclusion of an allegation referring
to section 3 of the Canadian Charter of Rights
and Freedoms,' which guarantees every citizen of
Canada the right to vote in any federal or provin
cial legislative election. I will therefore discuss
whether section 3 of the said Charter has been
infringed by the defendants, and if necessary, the
legal effect of Canada's international obligations
on domestic law, and the Charter in particular.
THE LAW:
Section 3 of the Charter provides:
3. Every citizen of Canada has the right to vote in an election
of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
It is up to the plaintiff to show that this right
has been infringed. He submitted that his impris
onment in a federal institution does in fact impede
the exercise of the right conferred on him by the
Charter and the Quebec Election Act (S.Q. 1979,
c. 56). He adds that he has all the necessary
qualifications to vote under Quebec law. In short,
he considers that the refusal of the defendant
contradicts the spirit and the letter of the Canadi-
an Charter of Rights and Freedoms. At first sight,
it is clear that his application is valid and must be
' being Part I of the Constitution Act, 1982, Schedule B,
Canada Act, 1982, 1982, c. 11 (U.K.).
allowed. It remains to be seen whether a limitation
can be imposed on the exercise of this right.
Such a limitation would result from section 1 of
the Charter, which provides:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
Unlike the U.S. Constitution, the rights and
freedoms guaranteed by the Charter are not abso
lute. This means that they may be limited in
certain well-defined circumstances. That is the
effect of section 1 of the Charter. There is no
doubt that it is for anyone seeking to establish a
rule of law 2 limiting the rights and freedoms guar
anteed by the Charter to prove not only that they
are reasonable but also justified in a free and
democratic society.
In this regard, the Crown must show that by his
"rule of law" the legislator is pursuing a legitimate
purpose or action in the common interest by with
holding the right to vote from inmates.
The argument that inmates cannot be given the
right to vote for administrative or security reasons
cannot in my opinion prevent the exercise of a
constitutionally recognized right in the case at bar.
I concur in this regard in the opinion of Reed J.,
who in Gould v. Attorney General of Canada, 3
[1984] 1 F.C. 1119 (T.D.), at page 1125, stated:
It is hard to accept that security reasons could constitute
justification for denying inmates the right to vote. The fact that
other jurisdictions, for example, Quebec, are able to provide
2 For the meaning of the term "rule of law", I refer the
parties to the judgment in Federal Republic of Germany v.
Rauca (1982), 38 O.R. (2d) 705 (H.C.), where Evans C.J. said
at page 716:
The phrase "prescribed by law" requires the limitation to
be laid down by some rule of law in a positive fashion and not
by mere implication. The rule of law containing the limita
tion will normally be statutory although it is possible that it
may be found in delegated legislation or in the form of a
common law rule.
3 Reversed by the Federal Court of Appeal, but on other
grounds: see [1984] 1 F.C. 1133.
such mechanisms demonstrates that it is not unworkable, either
from an administrative or security point of view.
If the security argument cannot be supported, is
it possible to argue that imprisonment necessarily
entails as a consequence the loss of certain rights,
including that of voting? Once again, I can do no
better than to concur in the opinion of Reed J.,
who again in Gould (supra) disposed of this argu
ment as follows (at page 1126):
... I do not think that because some of the prisoner's rights
must necessarily be curtailed (e.g: the freedom of association,
of expression, the right to be a candidate for election) this
justifies curtailing the whole spectrum. (My emphasis.)
I would add that the right to vote is the corner
stone of any self-respecting democracy. Clearly
then it is a right which, in my view, it is difficult to
limit unless within the well-defined circumstances
indicated in section 1 of the Charter.
The defendants did not succeed in showing that
the imprisonment of the plaintiff in a federal
prison constituted a reasonable limit on the right
to vote, conferred by section 3 of the Charter,
which could be demonstrably justified in a free
and democratic society. The defendants confined
their argument to maintaining that the interna
tional treaties and conventions are not applicable
in Canadian domestic law and the Quebec election
legislation is not applicable within the federal gov
ernment. Unfortunately for the defendants, the
source of the right to vote here is not international
treaties or the Quebec election legislation but the
Canadian Charter of Rights and Freedoms.
In view of this finding, I need go no further to
dispose of the case, and do not need to deal with
the other points raised in argument. This is a pity
for counsel for the plaintiff, who eloquently argued
the case for Canada's international obligations in
relation to Canadian domestic law. All I can say to
counsel is that the matter is only postponed for the
time being.
I would accordingly grant the plaintiff at bar a
declaratory judgment in the following terms:
The plaintiff shall be entitled to a declaration
that he has a right to vote in the provincial
general election to be held on December 2, 1985
and in any other subsequent provincial election
so long as he shall be an inmate.
I realize that this declaratory judgment may
remain inoperative if it is not accompanied with
certain provisions to give it practical effect.
This raises the question of whether a writ of
mandamus can be issued against the defendants as
requested, directing them to adopt administrative
machinery enabling the plaintiff to vote in the
provincial election. If I am not able to issue a
mandamus, can I then grant "such remedy as
[this] court considers appropriate and just in the
circumstances", as provided by section 24 of the
Charter:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
It is well known that a writ of mandamus can
only issue to ensure the performance of a public
duty in which the plaintiff has a sufficient legal
interest. Can it be argued, as the defendants did,
that section 3 of the Charter does not, in the
present context of a provincial election, impose any
obligation to act or any specific public duty on the
federal government? I consider that such a duty is
implicitly recognized in an enactment such as sec
tion 3 of the Charter, which is declaratory of a
right. It would be illusory to guarantee the exist
ence of a right if its exercise could not also be
guaranteed. It is all very well to have the right to
vote, but it must be possible to exercise that right
or the Charter will remain a dead letter. It now
remains to specify how this right to vote shall be
exercised.
As Thurlow C.J., dissenting, observed in Attor
ney General of Canada v. Gould, [1984] 1 F.C.
1133 (C.A.), at page 1138:
When it is necessary, the Court, as it seems to me, must be
prepared to be innovative in devising procedures and means, not
heretofore employed, to enforce rights guaranteed by the
Charter.
Although these observations open the door to a
whole range of remedies "not heretofore
employed", I consider that in any case section 24
is so worded as to enable me to issue a writ of
mandamus. However, can I issue such a writ
against the Crown, or against a Minister of the
Crown acting in his capacity as a representative of
the Crown?
The traditional common law position is stated
by de Smith as follows: 4
... mandamus will not issue against the Crown, or against
Crown servants acting exclusively in that capacity.
Furthermore, the Supreme Court of Canada has
clearly established that this rule is part of our legal
tradition. I refer the parties to Minister of Finance
of British Columbia v. The King, [1935] S.C.R.
278, and in particular the observations of Davis J.
at page 285:
... it is beyond question that a mandamus cannot be directed
to the Crown or any servant of the Crown simply acting in his
capacity of servant.
Does the Canadian Charter of Rights and Free
doms alter this traditional position? I would
answer that it does: the Charter: has not only
altered existing law, but also overturned it.
Accordingly, since adoption of the Charter, and in
particular sections 32 and 52 of the Charter, there
is no longer any doubt that the Crown is subject to
the provisions of the Charter in the same way as
any other individual. Sections 32 and 52 read as
follows:
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect
of all matters within the authority of Parliament ....
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
If the Canadian Charter of Rights and Free
doms, which is part of the Constitution of Canada,
is the supreme law of the country, it applies to
everyone, including the Crown or a Minister acting
in his capacity as a representative of the Crown.
Accordingly, a fortiori the Crown or one of its
representatives cannot take refuge in any kind of
declinatory exception or rule of immunity derived
from the common law so as to avoid giving effect
to the Charter. A writ of mandamus must there
4 Judicial Review of Administrative Action, 4th ed., Stevens,
London, 1980, at page 541.
fore issue directing the defendants in the case at
bar to allow provincial authorities, namely the
Chief Electoral Officer of Quebec, to prepare
within the penitentiary a list of inmates having the
necessary qualifications to vote under Quebec law
and to establish a polling booth on the spot with a
scrutineer appointed by the Chief Electoral Offi
cer, and a representative of each of the political
parties sitting in the Quebec National Assembly,
so as to give inmates an opportunity to exercise
their right to vote in the provincial election of
December 2, 1985.
I would award costs and disbursements to the
plaintiff if he requests them.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.