T-2048-88
Francis Creighton Muldoon and Max Mortimer
Teitelbaum (Plaintiffs)
v.
Her Majesty the Queen and Attorney General of
Canada (Defendants)
INDEXED AS: MULDOON V. CANADA
Trial Division, Walsh D.J.—Ottawa, November 1
and 3, 1988.
Elections — Canada Elections Act, s. 14(4)(d) (disqualifying
judges appointed by Governor in Council from voting) declared
inoperative pursuant to s. 24 of Charter and s. 52(1) of
Constitution Act, 1982 — Proceedings uncontested — Parties
concurs. 14(4)(d) not reasonable limit prescribed by law within
meaning of s. 1 of Charter — Declaratory relief granted since
supported by facts and does not constitute miscarriage of
justice.
Judges and courts — Federal Court of Canada Judges
Statutory disqualification of judges appointed by Governor in
Council from voting at federal elections declared of no force or
effect as violating democratic rights in Charter — Disqualifi
cation not reasonable limit prescribed by law — Overly sim
plistic to say secret ballot protecting judges from public
perception of political bias — No evidence as to whether some
democracies denying judges suffrage.
Constitutional law — Charter of Rights — Democratic
rights — S. 14(4)(d) of Canada Elections Act, disqualifying
judges from voting, not reasonable limit prescribed by law
within s. 1 of Charter.
Practice — Judgments and orders — Consent judgment -
Statement of defence not confession of judgment but admitting
all facts alleged and that plaintiffs entitled to relief sought —
Issue involving constitutional law — Court should accept
agreement between parties unless unsupported by facts or not
in interest of justice.
The plaintiffs seek a declaration, pursuant to section 24 of
the Charter and subsection 52(1) of the Constitution Act, 1982,
that paragraph 14(4)(d) of the Canada Elections Act is of no
force or effect. The defendants admit all the facts alleged in the
statement of claim and that paragraph 14(4)(d) is not a
"reasonable limit prescribed by law" within the meaning of
section 1 of the Charter.
Held, the relief sought should be granted.
The uncontested nature of the proceedings does not allow for
the examination of two justiciable issues which could have been
raised. First, our political process is such that it was overly
simplistic to rely upon the secret ballot to protect judges from a
public perception that they might hold politically partisan
views. Secondly, while a list of democratic countries in which
superior court judges are allowed to vote had been submitted by
plaintiffs, it may be that there are others where the vote is not
given to judges. But although the granting of declaratory relief
is discretionary, it cannot be arbitrarily denied unless unsup
ported by the facts or would constitute a miscarriage of justice.
The present case does reveal cogent arguments for finding
paragraph 14(4)(d) invalid pursuant to section 24 of the Chart
er and subsection 52(1) of the Constitution Act, 1982.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Elections Act, R.S.C. 1970, c. 14 (1st Supp.), s.
14(4)(d) (as am. by S.C. 1974-75-76, c. 108, s. 42),
(e), (/).
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.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52(1).
Dominion Controverted Elections Act, R.S.C. 1970, c.
C-28.
Election Act, S.Q. 1979, c. 56.
Federal Court Rules, C.R.C., c. 663, R. 405.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Lévesque v. Canada (Attorney General), [1986] 2 F.C.
287 (T.D.); Gould v. Attorney General of Canada,
[1984] 1 F.C. 1119 (T.D.); [1984] 1 F.C. 1133 (C.A.);
Canadian Disability Rights Council v. Canada, [1988] 3
F.C. 622 (T.D.).
COUNSEL:
Reisa Teitelbaum for plaintiffs.
Graham R. Garton, Q.C. for defendants.
SOLICITORS:
Pollack, Machlovitch, Kravitz & Teitelbaum,
Montréal, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
WALSH D.J.: Plaintiffs are two of the judges of
the Federal Court of Canada appointed by Gover
nor in Council and seek a declaration that para
graph 14(4)(d) of the Canada Elections Act,
R.S.C. 1970, c. 14 (1st Supp.) [as am. by S.C.
1974-75-76, c. 108, s. 42], which disqualifies them
in their capacities as such judges from voting in
elections of members of the House of Commons be
found to be of no force or effect pursuant to
section 24 of the Charter and subsection 52(1)
(Part VII) of the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)].
Section 3 of the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] reads:
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.
Plaintiffs do not deny that some limits must
necessarily be placed on the right to vote (if this
were not so children, for example, would have a
vote), and this limitation purports to be accom
plished by section 14 of the Canada Elections Act.
Paragraph 14(4)(d) thereof disqualifies "every
judge appointed by the Governor in Council".
Plaintiffs contend that there are no reasonable
limits prescribed by law which can be demon
strably justified to take away from them the right
to vote accorded to every Canadian citizen. They
disclaim having any qualification for membership
in the House of Commons or any legislative
assembly, not even in any municipal council or any
public elective position. They further concede they
have no claim to participate as public political
partisans in any such election or at all, and in
order to maintain the politically non-partisan and
objective requirements of their judicial offices they
rely on the secrecy of the ballot box.
They further refer to free and democratic socie
ties, namely the Province of Ontario, the United
Kingdom of Great Britain and Northern Ireland,
the Republic of Ireland (Eire), New Zealand,
Australia, and the United States of America as
having no prescription of law whereby judges of
superior and district courts are prohibited from
voting.
In answer to this statement of claim defendants
file a statement of defence, which is not however a
defence of an adversarial nature since it admits all
the facts alleged in the statement of claim, and
that paragraph 14(4)(d) is not a "reasonable limit
prescribed by law" within the meaning of section 1
of the Charter, and that plaintiffs are entitled to a
declaration pursuant to subsection 52(1) of the
Constitution Act, 1982 (the Charter) that the said
paragraph 14(4)(d) is of no force or effect.
While this pleading is not a confession of judg
ment as provided for in Rule 405 of the Federal
Court Rules [C.R.C., c. 663] its effect is the same.
It also rendered any evidence or proof of the
allegations in plaintiffs' statement of claim
unnecessary.
The issue of a declaratory judgment is always
discretionary. Moreover it has been decided in
other situations, such as for instance in income tax
appeals where the federal treasury is involved, that
a judge is not obliged to accept and render judg
ment on an agreed upon settlement, desistment
from a contestation or withdrawal of an appeal if
he deems it unjustified by the facts or not in the
interest of justice. However, it would only be in
comparatively rare and exceptional circumstances
that an agreement between the parties (and that is
what the defence in the present case really
amounts to) would not be accepted by the Court,
after examination, and confirmed by judgment.
Counsel for defendants explained that a bill had
been introduced in Parliament to give federally
appointed judges the right to vote but had died on
the order paper when Parliament was dissolved for
the forthcoming election. One of the problems
which had caused some concern arose from the
provision of the Dominion Controverted Elections
Act, R.S.C. 1970, c. C-28, which provides for a
hearing by trial judges of petitions brought under
the Act. While these are normally heard by judges
from another district than that in which the dis
pute has arisen, some concern had been expressed
in the event that these judges had expressed a
partisan opinion (albeit privately in the secrecy of
the ballot box) by themselves voting in the elec
tion. Nevertheless the amending legislation was
introduced although not adopted prior to dissolu
tion of Parliament.
Under the circumstances it is understandable
that there is no adversarial contestation as such in
these proceedings. It is unfortunate and generally
undesirable that the courts by interpretation of
existing statutes should be called on to deal with
matters which should more appropriately be left to
legislation by Parliament. The declaration sought
by plaintiffs herein will in effect eliminate the need
for legislation to give federally appointed judges
the right to vote, which has pros and cons which
could have been discussed and dealt with in con
sidering the proposed legislation.
There are two justiciable issues which could
have been raised and dealt with in the present
proceedings had they been contested and evidence
presented to oppose the contentions in plaintiffs'
statement of claim. Firstly it is overly simplistic to
rely entirely on the secrecy of the ballot box to
protect judges from any perceived politically parti
san views. In order to get to the ballot box it is
necessary to be enumerated and entered on the
voters' list. This inevitably leads to visitations by
canvassers for the various political parties. Unless
the judge turns them away at the door discussions
which ensue about the policies of the party repre
sented by the canvasser may well lead to a percep
tion by the canvasser that the judge agrees or does
not agree with these policies, and the canvasser,
who is not under any oath of silence, may repeat
this to others. Neighbors may observe a lengthy
call from a canvasser of a known political stripe,
and draw perhaps entirely unwanted conclusions
that the judge is not politically neutral. I am
certainly not suggesting that judges lack the dis
cretion to be careful in not indicating any political
views. Many judges have had political affiliations
before their appointment, but it has never been
suggested that, once appointed, they have ever
allowed these views to affect their judgments.
They must not only be politically neutral, as plain
tiffs concede, but must be perceived to be so by the
public. For this reason I am of the view that even
if permitted to vote many judges would not wish to
do so and refuse to be enumerated and appear on
voters roles and thereby be subject to approaches
by political canvassers. The removal of the restric
tion of paragraph 14(4)(d) of the Elections Act
will have the effect of leaving this decision to the
individual consciences of the judges. While there is
nothing wrong with this and certainly they are
entitled to have personal opinions on political
issues, as all citizens are it at least might have
been arguable that there is a valid objective in
restricting their right to vote which might be a
reasonable limit prescribed by law, in order to
protect them from any possible criticism of not
being completely apolitical.
The other issue which might have been raised
had there been an active contestation is the list of
free and democratic societies submitted by plain
tiffs in which superior court judges are not prohib
ited from voting, so as to prevent the use of section
1 of the Charter if the issue depended on its
application. While it has been decided that a court
should not decide such an issue without some
evidence on which to base the decision, a contesta-
tion might of course have introduced evidence of
other free and democratic societies in which the
vote is not given to judges, or have pointed out
differences in the societies referred to, such as the
fact that United States judges are in most
instances elected and therefore not non-partisan.
Canadian federal judges appointed by order in
council were aware at the time they accepted
appointment that one of the conditions of such
appointment was a prohibition of their right to
vote in federal elections. Other restrictions of a
residential nature are imposed on Supreme Court
and Federal Court judges and are accepted when
appointed. That is not to say of course that prohi
bition of the right to vote could not be removed
thereafter by act of Parliament or a judgment
interpreting the Charter of Rights as invalidating
the prohibition such as is sought in the present
proceedings.
There has been some jurisprudence dealing with
other paragraphs of section 14 of the Canada
Elections Act, but even if it had been submitted in
argument it would have been of little help in
dealing with the present issue as it is readily
distinguishable. In the case of Lévesque v. Canada
(Attorney General), [1986] 2 F.C. 287 (T.D.),
Justice Rouleau had to deal with the case of an
inmate in a federal penitentiary in Quebec who
wished to vote at a Quebec general election. The
Quebec Election Act [S.Q. 1979, c. 56] permitted
inmates to vote. The federal authorities had resist
ed setting up arrangements to make it feasible for
plaintiff to vote in the penitentiary. Paragraph
14(4)(e) of the Canada Elections Act which of
course only deals with federal elections prohibits
voting by "even person undergoing punishment as
an inmate in any federal institution for the com
mission of any offense". Without specifically refer
ring to the said section the judgment found that
the refusal to permit him to vote as allowed by the
Quebec Election Act because he was in a federal
penitentiary infringed section 3 of the Charter and
that section 1 did not justify this as defendant had
not succeeded in showing that imprisonment in a
federal penitentiary constituted a reasonable limit
on the right to vote which could be demonstrably
justified in a free and democratic society. The
decision referred to the judgment of Reed J. in
Gould v. Attorney General of Canada, [1984] 1
F.C. 1119 (T.D.); [1984] 1 F.C. 1133 (C.A.),
which had found that security reasons were not
justification for denying inmates the right to vote
and that while some prisoners' rights such as free
dom of association, of expression, and the right to
be a candidate for election must necessarily be
curtailed, this did not justify curtailing the entire
spectrum, such as the right to vote. A mandamus
was accordingly issued as an appropriate remedy
pursuant to section 24 of the Charter.
In a more recent case, that of Canadian Disa
bility Rights Council v. Canada, [1988] 3 F.C.
622 (T.D.) Madam Justice Reed, dealing with
paragraph 14(4)(f) of the Canada Elections Act
which prohibits from voting "every person who is
restrained of his liberty of movement or deprived
of the management of his property by reason of
mental disease" held that this clause is too broadly
framed to withstand a challenge based on section 3
of the Charter. Referring to the possible applica
tion of section 1 she states:
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, clause 14(4)(/) as presently drafted does not address itself
only to mental competence or capacity insofar as that quality is
required for the purposes of voting.
She goes on to point out that the term "mental
disease" includes persons whose judgment may be
impaired in one aspect of their life only, and
moreover the section does not exclude from voting
those suffering from mental disease whose liberty
of movement is not restrained, or whose property is
under the control of a committee. She concludes
that paragraph 14(4)(f) is both too narrow and too
wide, catching people within its ambit who should
not be there, and arguably, does not catch people
who perhaps should be. She cannot suggest how
the section might be severed and hence concludes
that paragraph 14(4)(f) is invalid as being in
conflict with section 3 of the Canadian Charter of
Rights and Freedoms.
There is no such difficulty of definition in para
graph 14(4)(d) under consideration in the present
case, "every judge appointed by the Governor in
Council" being clear and unambiguous.
If I have referred to arguments which might
have been raised had these been an adversarial
contestation it is not that I wish to express any
firm conclusion as to their validity nor should I in
the absence of any proof before me other than the
admission by defendant of all of the allegations in
the statement of claim.
If there is what I consider might be an arguable
justification for the application of paragraph
14(4)(d) of the Canada Elections Act, there are
also cogent arguments for finding that it is of no
force or effect pursuant to section 24 of the Chart-
er and subsection 52(1) of the Constitution Act, as
defendants concede.
As stated at the commencement of these reasons
the granting of declaratory relief is discretionary.
It should not, however, lightly be refused when
there is agreement between the parties that it
should be granted unless the Court finds that to do
so would not be justified by the facts or would
constitute a miscarriage of justice. I cannot so find
on the facts before me in the present case. It could
well have been decided either way had there been
a full contestation.
The judgment sought by plaintiffs will therefore
be granted but without costs as these were not
sought save in the event of a contestation by
defendants and I do not consider that the defence
constitutes a contestation, but rather an admission.
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.