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Lecture 12

POLS 3140 Lecture 12: Sauve and Harper Part II

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University of Guelph
Political Science
POLS 3140
Dave Snow

March 2, 2017 Lecture 12 Sauve and Harper Part II Section 3 of the Charter 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 Sauve II: McLachlin vs. Gonthier The judgement of McLachlin, Lacobucci, Binnie, Arbour, and Lebel delivered by McLachlin (Majority) The reasons of LHeureauxDube, Gonthier, Major, and Bastarache delivered by Gonthier (Dissenting) Sauve II: The Disagreement The right of every citizen to vote lies at the heart of Canadian democracy Gonthier: Both sides agree that right to vote is profoundly important Difference: Philosophical positions on whether temporary disenfranchisement strengthens or injures o Rule of law o Democracy o Right to vote Rational Connection Connection to governments objectives: 1. Educative message about importance of respect for law 2. Allowing inmates to vote demeans system 3. Disenfranchisement is a legitimate form of punishment McLachlin: Rejects all three, says government gets it backwards, undermines dignity Gonthier: Accepts all three Reasonable Disagreement? Gonthier: McLachlins judgement based on view that there is only one plausible social or political philosophy upon which to ground the limitation of the right Problem? o Apart from one philosopher, she provides no support for this contention; she simply replaces one reasonable positon with another Two Approaches to Voting 1. Unrestricted franchise enhances democratic legitimacy of government; Limiting franchise undermines dignity 2. Temporary disenfranchisement enhances general purposes of the criminal sanction, including rehabilitation Neither proven empirically o Both aimed at same goal: Supporting importance of right to vote Hierarchy of Rights? McLachlin: Right to vote is cornerstone of democracy, exempt from the incursion permitted on other rights through s. 33 override o Framers accorded it special protections Gonthier does not address Decision in Sauve I (1993) Blanket prisoner DQ: o 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 2 year ban not addressed 5 judges in both Sauve cases
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