T-1787-88
Canadian Disability Rights Council, Marie -
Michèle Bédard, Clifford Stacey, Tom Last,
Eldon Hardy, and Public Trustee of Quebec, in
the name of Mrs. Lucienne Robillard, acting as
curator ex officio of the person and over the
property of Gilles Hawey, incapable, and Denis
Duval, incapable (Plaintiffs)
v.
The Queen in right of Canada (Defendant)
INDEXED AS: CANADIAN DISABILITY RIGHTS COUNCIL V.
CANADA
Trial Division, Reed J.—Ottawa, October 17,
1988.
Elections — Canada Elections Act, s. 14(4)(f), disqualifying
persons restrained of liberty of movement or deprived of
management of property by reason of mental disease from
right to vote, declared invalid for conflict with Charter, s. 3
right to vote accorded every citizen — S. 14(4)(f) limitation
arbitrary as not directed to mental capacity in so far as relates
to competence to vote — Test at once too narrow and too wide
— False assumption mental disability necessarily rendering
person incapable of voting — S. 14(4)(f) not severable.
Constitutional law — Charter of Rights — Democratic
rights — Charter, s. 3 right to vote infringed by Canada
Elections Act, s. 14(4)(f) which disqualifies certain persons on
basis of mental disease — S. 14(4)(f) declared invalid — Too
broad to be demonstrably justified in free and democratic
society — Mentally disabled not necessarily incapable of
voting.
This was an application for a declaration that paragraph
14(4)(/) of the Canada Elections Act was invalid as being in
conflict with the Charter, section 3. Section 3 gives every
citizen of Canada the right to vote. The Charter, section 1
permits limitations which are demonstrably justified in a free
and democratic society. Paragraph 14(4)(/) disqualifies those
whose liberty of movement has been restrained or who have
been deprived of the management of their property by reason of
mental disease from voting.
Held, the application should be allowed.
The limitation in paragraph 14(4)(f) is arbitrary in that it
catches people within its ambit who should not be there
(individuals suffering from personality disorders which impair
their judgment in one aspect of their lives only) and arguably
does not catch others who should be there. It is at once both too
narrow and too wide. The disqualification is not aimed at
mental capacity in so far as it relates to the ability to vote.
Psychiatric patients are not necessarily incapacitated for all
purposes, including voting. Paragraph 14(4)(f) is not severable.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14,
s. 14(4).
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.
Election Act, 1984, S.O. 1984, c. 54, s. 14.
The Elections Act, R.S.M. 1987, c. E-30, s. 31(b).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Re Canadian Mental Health Association (Manitoba
Division) v. Richard Willis, as the Chief Electoral Offi
cer of the Province of Manitoba, and the Attorney-Gen
eral of Manitoba, Suit No. CI 88-01-27535, Glowacki J.,
March 17, 1988, Man. Q.B., not yet reported.
AUTHORS CITED
Canada. Department of Justice Canada. Toward Equal
ity: The Response to the Report of the Parliamentary
Committee on Equality Rights. Ottawa: Minister of
Supply and Services Canada, 1986.
Canada. House of Commons. Report of the Special
Committee on the Disabled and the Handicapped:
Obstacles. Ottawa, Queen's Printer, February, 1981
(Chair: David Smith).
Canada. House of Commons. Report of the Parliamen
tary Committee on Equality Rights: Equality for All.
Ottawa, Queen's Printer, 1985 (Chair: Patrick Boyer).
Canada. Minister of Justice and Attorney General of
Canada. Equality Issues in Federal Law—A Discus
sion Paper. Ottawa: Minister of Supply and Services
Canada, 1985.
Notes: "Mental Disability and the Right to Vote" (1979),
88 Yale L.J. 1644.
Robertson, Gerald B. Mental Disability and the Law in
Canada. Toronto: Carswell, 1987.
COUNSEL:
Gail Czukar for plaintiffs.
Jean-Pierre Ménard for Marie -Michèle
Bédard, Gilles Hawey and Denis Duval.
Eric A. Bowie, Q.C. for defendant.
SOLICITORS:
Gail Czukar, Toronto, for plaintiffs.
Ménard, Martin, Montréal, for Marie -
Michèle Bédard, Gilles Hawey and Denis
Duval.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
delivered orally in English by
REED J.: I have decided to grant the order
sought by the plaintiffs. That decision is based on
the conclusion that paragraph 14(4)(f) of the
Canada Elections Act' is too broadly framed to
withstand a challenge based on section 3 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)]. 2
Section 3 accords every citizen of Canada the
right to vote in federal and provincial elections.
That right is of course not absolute. It can be
limited in justifiable circumstances.
Section 1 of the Charter allows for limitations
which are demonstrably justifiable in a free and
democratic society. I have no doubt that one such
limitation might be what I will call a requirement
of mental competence or judgmental capacity.
But, paragraph 14(4)(f) as presently drafted does
not address itself only to mental competence or
capacity in so far as that quality is required for the
purposes of voting.
It is more broadly framed than that. It denies
people the right to vote on the basis of "mental
disease". This clearly will include individuals who
might suffer from a personality disorder which
impairs their judgment in one aspect of their life
only. There may be no reason on that basis to
deprive them of the right to vote. What is more,
paragraph 14(4)(f) does not deny all persons suf-
' R.S.C. 1970 (1st Supp.), c. 14:
14....
(4) The following persons are not qualified to vote at an
election, and shall not vote at an election:
(f) every person who is restrained of his liberty of movement
or deprived of the management of his property by reason of
mental disease; ...
2 3. Every citizen of Canada has the right to vote in an
election of members of the House of Commons or of a legisla
tive assembly and to be qualified for membership therein.
fering from mental disease the right to vote, but
only those whose liberty of movement has been
restrained or whose property is under the control
of a committee of estate. As counsel argued, a
person mentally handicapped or suffering from a
personality disorder might be supported at home
or cared for by his or her family. That person
would fall under neither of the categories in para
graph 14(4)(f) and would be entitled to vote.
The limitation prescribed by paragraph 14(4)(f)
is in that sense arbitrary. If it is intended as a test
of mental competency, it is at the same time both
too narrow and too wide. It catches people within
its ambit who should not be there and, arguably, it
does not catch people who perhaps should be.
I find it useful to refer to the text by Gerald B.
Robertson entitled Mental Disability and the Law
in Canada, which was cited to me. 3 I adopt what
that author said in speaking of paragraph 14(4)(f).
He wrote: "It is important to note that the dis
qualification is not based on mental disability or
incapacity per se. Rather, it is directed at two
categories of people—those who have been
restrained of their liberty of movement by reason
of mental disease, and those whose property is
under the control of a committee of estate .... It
simply does not follow that people who are
declared incapable of managing their financial
affairs are necessarily incapable of understanding
the nature of the right to vote and of exercising it
in a rational manner. It is similarly a non sequitur
to assume that psychiatric patients are necessarily
incapable of voting. Indeed, empirical research
indicates that the voting pattern of psychiatric
patients parallels that of the general population."
I accept counsel for the plaintiffs' argument that
the assumption that a person suffering from any
mental disability is incapacitated for all purposes,
including voting, is simply a false assumption.
3 Toronto: Carswell, 1987, at pp. 240-242.
I note the reference that this assumption of
blanket incapacity has been widely rejected. 4 An
individual incapable of making particular types of
decisions may be fully capable of making many
others.
I have considered whether paragraph 14(4)(f)
might be severed in a way so as to cut down its
over broad application and applied only to those
individuals who might legitimately be denied the
right to vote on the ground of mental incapacity. I
have not found a way to do so, and I accept
counsel for the defendant's argument that, as pres
ently drafted, paragraph 14(4)(f) simply does not
lend itself to that endeavour.
Since a decision is required quickly, I have not
alluded to all the authorities and commentaries
which have been cited to me. I would note, how
ever, that I found the references to the various
parliamentary committee reports' as well as to the
changes which have been made in Ontario 6 and
Manitoba' both persuasive and helpful.
4 Notes: "Mental Disability and the Right to Vote" (1979),
88 Yale L.J. 1644, at p. 1657.
5 Canada. House of Commons. Report of the Special Com
mittee on the Disabled and the Handicapped: Obstacles.
Ottawa: Queen's Printer, February 1981 (Chair: David Smith),
Recommendation 9, at p. 24.
Canada. House of Commons. Report of the Parliamentary
Committee on Equality Rights: Equality for All. Ottawa:
Queen's Printer, 1985 (Chair: Patrick Boyer), Recommenda
tion 52, at p. 91.
See also: Canada. Minister of Justice and Attorney General of
Canada. Equality Issues in Federal Law—A Discus
sion Paper. Ottawa: Minister of Supply and Services
Canada, 1985.
Canada. Department of Justice Canada. Toward
Equality: The Response to the Report of the Parlia
mentary Committee on Equality Rights. Ottawa:
Minister of Supply and Services Canada, 1986, p. 43.
6 Election Act, 1984, S.O. 1984, c. 54, s. 14.
Institutionalized mental patients have voted in the past two
Ontario provincial elections, in the 1985 municipal elections
and are being enumerated to vote in the November 1988
municipal elections.
' Part of paragraph 31(b) of The Elections Act of Manitoba,
R.S.M. 1987, c. E-30, which disqualified patients in mental
hospitals from voting was struck down as being in violation of s.
3 of the Charter in Re Canadian Mental Health Association
(Manitoba Division) v. Richard Willis, as the Chief Electoral
Officer of the Province of Manitoba, and the Attorney-General
(Continued on next page)
For the reasons given the plaintiffs will obtain
the declaration they seek. It is hereby declared
that paragraph 14(4)(f) of the Canada Elections
Act is invalid as being in conflict with section 3 of
the Canadian Charter of Rights and Freedoms.
The plaintiffs shall have their costs of the
action.
(Continued from previous page)
of Manitoba, Suit No. CI 88-01-27535, unreported, March 17,
1988, per Glowacki J., Man. Q.B.
The legislation provided that "Persons who are patients in
mental hospitals or institutions for mental retardates" be dis
qualified from voting.
Mental patients voted in the Manitoba provincial election held
April 26, 1988.
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.