COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Henry v. Canada (Attorney General),

2014 BCCA 30

Date: 20140128

Docket: CA038128

Between:

Rose Henry, Clyde
Wright and Helen Eddlestone

Appellants

(Plaintiffs)

And

The Attorney
General of Canada and

The Chief
Electoral Officer of Canada

Respondents

(Defendants)

And

British Columbia
Civil Liberties Association

Intervenor

Before:

The Honourable Madam Justice Ryan

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice
  Hinkson

On
Appeal from an Order of the Supreme Court of British Columbia, dated May 3, 2010
(
Henry v. Canada (Attorney General)
, 2010 BCSC 610, Vancouver Registry,
Docket Number S080662).

Counsel for the Appellants:

B.B. Olthuis

M.S. Oulton

S.L. McHugh

Counsel for The Attorney General of Canada:

H.J. Wruck, Q.C.

A.J. Semple

Counsel for The Chief Electoral Officer:

M. Chenier

J. Parisien

Counsel for The British Columbia Civil Liberties
  Association:

M.P. Good

D.W. Burnett

G.J. White

Place and Date of Hearing:

Vancouver, British
  Columbia

February 4 & 5,
  2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2014

Written Reasons by:

The Honourable Madam Justice Ryan

Concurred in by:

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Hinkson

Summary:

This appeal concerns the voter identification
requirements in the Canada Elections Act pertaining to personal identification
and residence.  The appellants appeal the order of the trial judge dismissing
their action for a declaration under s. 52 of the Charter that these
sections are of no force and effect.  The trial judge found that the voter
identification requirements did violate s. 3 of the Charter but were demonstrably
justified under s. 1.  The appellants argue the trial judge erred in law
or in principle in her conclusions with respect to both s. 1 and s. 3.

Held: appeal dismissed.  The voter identification provisions
are a facial breach of s. 3; the appellants did not establish that the
trial judge erred in her understanding or application of s. 3.  The trial
judge did not err in her conclusion that there were no alternative, less
drastic means of achieving the legislative goals nor in her conclusion that the
salutary effects of the provisions outweighed the deleterious effects.

Reasons for Judgment of the Honourable
Madam Justice Ryan:

Introduction

[1]

Section 3 of the
Canadian Charter

of

Rights and
Freedoms
,
Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c. 11
, (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.

[2]

The appellants, Rose Henry, Clyde Wright, and Helen Eddlestone, allege that
amendments made in 2007 to the
Canada Elections Act
, S.C. 2000, c. 9

(the
Canada

Elections Act
or the
Act
) pertaining
to voter identification requirements with respect to personal identity and
residence infringe their rights under s. 3 of the
Charter
.  They
appeal the May 3, 2010 order of Madam Justice L. Smith dismissing their
action for a declaration under s. 52 of the
Charter
that certain
sections of the
Act
are, as a consequence, of no force and effect.

[3]

Justice Smith found that the voter identification requirements did
violate s. 3 of the
Charter
, but were demonstrably justified under
s. 1.  The trial decision is indexed as
Henry v. Canada (Attorney
General)
and may be found at 2010 BCSC 610.

[4]

For the reasons that follow, I agree with the conclusion of Justice
Smith.  As a result, this appeal must be dismissed.

The Impugned Sections

[5]

The challenged sections of the
Canada Elections Act
collectively
put into place voter identification requirements relating to voting on election
day (polling day), registering to vote on polling day and voting in advanced
polls.  The key provision at issue is s. 148.1(1) which refuses the vote
to those unable to prove their identity and residence in accordance with the
new provisions of the
Act
.  It provides:

148.1(1)  An elector who fails to
prove his or her identity and residence in accordance with subsection 143(2) or
(3) or to take an oath otherwise required by this
Act
shall not receive
a ballot or be allowed to vote.

[6]

I will set out subsections (2) and (3) of s. 143, in full, later in
these reasons.  Briefly, they require that an elector show one piece of
government-issued identification with a photograph, name and address, or, two
pieces of identification, each of which establishes the electors name and at
least one of establishes his or her address.  An elector may also establish
identity and address by taking an oath and being vouched for by another
qualified elector.  Prior to the amendments an elector was not required to show
identification to vote.  He or she needed only to state his or her name and
address to the poll clerk who would confirm the information on the list of
electors and issue a ballot.  If there was doubt about the electors identity,
the elector could be required to swear an oath.

[7]

The appellants do not take issue with Parliaments prerogative to
require voters to prove identity and residence.  They object to the way in
which the legislation requires that proof.  The appellants position is that
the legislation unconstitutionally disenfranchises persons who would otherwise
be entitled to vote.  All of the sections of the
Act
challenged by the
appellants may be found in Appendix A of these reasons.

The
Canadian Electoral System

[8]

As set out above, s. 3 of the
Charter
gives each citizen the
right to vote in an election of members of the House of Commons or of a
legislative assembly.  This right reflects Canadas constitutional character
as a Parliamentary democracy.  The issues raised by this appeal can only be
understood in that context.

[9]

Canadas electoral system is known as first-past-the-post or the
single member plurality system.  In this system, which has been essentially
unchanged since Confederation, one Member of Parliament is elected in each
defined electoral district to represent the residents in that riding in
Parliament.  As a result, Canadians do not have the right to vote at large but
rather the right to vote in a specific electoral district, choosing among various
candidates who stand for election as the Member of Parliament for that riding.

[10]

The single-member plurality system, by necessary implication, places the
notion of residence at the centre of our electoral system.  The definition of
residence in the present
Act
is broad.  It has not always been so.  As
Dan McDougal, Assistant Secretary to the Cabinet, described in his affidavit of
18 March 2009:

16. Previous residency rules were stricter.  For instance,
the
Dominion Elections Act, 1920
required voters to have been resident
in Canada for 12 months and resident in the electoral district for at least two
months before the issue of the writ (s. 29(1)(c)) to be qualified to vote.
While this rule met policy objectives such as indicating a connection between
the elector and the district, it also disqualified electors who may have
recently moved.  This residency requirement was repealed in 1960 at the federal
level (S.C. 1960, c. 39 s. 115.

17.  There have developed
significant legislative and operational efforts to assist in determining the
residence of electors without permanent addresses.  The Act has been amended to
allow temporary residences, shelters, hostels, and similar institutions that
provide services to those who have no other residence to be deemed as a
residence for the purpose of a federal election

[11]

Section 6 now provides:

6.

Subject to this
Act
, every person who is
qualified as an elector [earlier defined in s. 3 as a Canadian citizen, 18
years of age or older on polling day] is entitled to have his or her name
included in the list of electors for the polling division in which he or she is
ordinarily resident
and to vote at the polling station for that polling
division.  [Emphasis added.]

[12]

Section 8 of the
Act
sets out comprehensive rules to
establish an electors residence.  It ensures that every person eligible to
vote has a place of ordinary residence, can be registered to vote at that
address and can vote at the polling station established for the polling
division where the address is located.  It provides:

(1)
The place of ordinary residence of a
person is the place that has always been, or that has been adopted as, his or
her dwelling place, and to which the person intends to return when away from
it.

(2)        A
person can have only one place of ordinary residence and it cannot be lost
until another is gained.

(3)        Temporary
absence from a place of ordinary residence does not cause a loss or change of
place of ordinary residence.

(4)        If
a person usually sleeps in one place and has their meals or is employed in
another place, their place of ordinary residence is where they sleep.

(5)        Temporary
residential quarters are considered to be a persons place of ordinary
residence only if the person has no other place that they consider to be their
residence.

(6)        A shelter, hostel or similar institution that provides
food, lodging or other social services to a person who has no dwelling place is
that persons place of ordinary residence.

[13]

Further, if the rules in s. 8 of the
Act
are not sufficient
to determine a place of ordinary residence for the elector, s. 9 allows an
election officer to determine ordinary residence by reference to all the facts
of the case.

[14]

While all Canadians are qualified to vote, they are not entitled to do
so unless their name is included on the list of electors for the polling
division in which the elector is ordinarily resident (s. 149 of the
Act
).
The Chief Electoral
Officer (the CEO) and staff prepare the list of electors.
[1]

[15]

As part of
his legislative mandate, the CEO maintains the Register of Electors which is
updated from time to time and during an election period (ss. 44  55 of the
Act
).
 It is from the Register of Electors and by other methods, such as door-to-door
canvassing, that the CEO, aided by other electoral officers, prepares a
preliminary list of electors, a revised preliminary list of electors and
finally the list of electors used at the polling stations on polling day (ss.
93  107 of the
Act
).

[16]

This appeal is concerned with new voter identification requirements to
vote or register to vote on polling day or at an advanced poll.  It is not
concerned with the way the list of electors is drawn up prior to the date of
the election.

Background to the Voter
Identification Amendments

[17]

Section 535 of the
Canada Elections Act
requires that the CEO submit a report to the House of Commons setting out any
amendments that are considered desirable for the better administration of the
Act
.
The CEO filed a report in September of 2005 after the 2004 election but,
because of an intervening general election in 2006, the House of Commons
Standing Committee on Procedure and House Affairs did not consider it until the
early fall of 2006.  It was during the course of the hearings of the Committee
that members raised the issue of voter fraud.  In its tabled report, entitled
Improving the Integrity of the Electoral Process: Recommendations for a
Legislative Change the Committee expressed its view that electoral fraud, and
the means for reducing the potential for such fraud, were issues that had to be
addressed to preserve the integrity of the electoral process.  As noted by the
trial judge, the Committee wrote at pp. 25  27 of its report:

Many Canadians have expressed concern about
the potential for fraud and misrepresentation in voting.  Members of the
Committee share this concern.  While we have no means of knowing how widespread
this problem is, the fact that it exists undermines the integrity of the electoral
process. ...

At present, there is no requirement that
voters show any identification before being able to vote, so long as their
names are on the list.  In our society, most important activities require that
an individual be able to furnish some form of proper identification, often with
a photograph.  In the case of voting, we do not believe that it would be
unreasonable to impose a similar requirement.  Moreover, it would bring home to
voters the seriousness and public importance of what they are about to do:
exercise a valued and fundamental democratic right.

...

Traditionally, Canada has tried to make
voting as easy as possible, but if confidence in the system is undermined, it
becomes necessary to make changes.  Obviously, it is not our intention to
impose any measures that would discourage voting, nor do we want to make voting
more difficult than necessary.  The credibility and legitimacy of the system,
however, require that procedures be adopted to ensure that only those persons
who are entitled to vote do so, and that they are who they say they are.  This
is essential to preserve the integrity in the electoral system.

The Committees
concerns about adequate proof of identification and residency, and proof of a
persons eligibility to vote were shared by the witnesses who appeared before
the Committee and who made written submissions.  All of the parties currently
represented in the House of Commons support a more effective method of ensuring
voter identification, including photo identification, with alternatives
available for persons who are unable to furnish the required identification.
The Committee wishes to make it clear that voter information cards should not
entitle a person to cast a ballot.  This was never the intent of these cards,
although, in practice, they appear to often be used for this purpose.  Given
the problems with how they are delivered or disposed of, this must be
clarified.  Members of the Committee are also disturbed that voters seem to be
able to use magazine subscription labels and utility bills to establish their
identity.  Although such documents may be useful in establishing ones address,
they are no substitute for adequate identification.

[18]

In addition to the concerns raised about the way
in which voters had been permitted to identify themselves and their place of
residence, the Committee also expressed unease about the high number of
election day registrations that had taken place in the past election and noted
that the CEO had agreed to conduct an audit in the riding of Trinity-Spadina in
Toronto where approximately 10,000 voters had registered on polling day.

[19]

The Government tabled its response to the report
in October of 2006:

Government of Canada,
Government
Response to the Thirteenth Report of the Standing Committee on Procedure and
House Affairs: Improving the Integrity of the Electoral Process
,

1st Session, 39th Parliament, 20 October 2006
.  It indicated
that it would be introducing a bill which would implement most of the
Committees recommendations.  It referred to some of the issues surrounding
potential voter fraud in this way:

Measures to reduce the potential for fraud or error that
could result in voting by individuals not entitled to vote

The bill will implement a number of
Committee recommendations that will assist in reducing the potential for fraud
or error that could impair the integrity of the voting system by allowing
voting by individuals who are not entitled to vote.  The Committee heard
evidence from political parties and Committee members of instances in which
non-citizens have voted.  Concerns were also raised about voter information
cards that are sent by Elections Canada being left in bundles in apartment
buildings, leaving open the opportunity for individuals seeking to defraud the
system to use these cards as evidence of their entitlement to vote.

The nature of
our voting system makes it difficult to conclusively determine how widespread
voter fraud may be.  However, each instance that comes to light affects public
confidence in the integrity of our electoral process and even a small degree of
fraud can affect the results of a close election.  In addition, some
individuals may vote out of a mistaken belief that they are eligible to do so
rather than due to any malicious intent.  The proposed legislative reforms will
go a significant way in preventing these opportunities from arising[.]

[20]

Bill C-31, containing the voter identification
provisions, was passed and received Royal Assent on June 22, 2007.  A
further bill was enacted to remedy an overlooked issue with respect to rural
and northern areas that have areas in which there are no assigned residential
addresses or mail delivery.  That bill, Bill C-18, received Royal Assent on
December 14, 2007.

Voter Identification
Requirements Relevant to this Appeal

[21]

As noted earlier, prior to the 2007 amendments, an elector did not have
to show personal identification to vote; he or she needed only to state his or
her name and address to the poll clerk at his or her polling station, who would
confirm this information on the list of electors and issue a ballot.  If poll
staff had any doubts as to the electors identity, they could require the
elector to swear an oath.

[22]

The amended
Act
now requires an elector to prove his or her
identity and residence by prescribed means before he or she can cast a ballot
in a federal election.

[23]

Section 143 now provides:

143.(1)  Each elector, on arriving at the polling station,
shall give his or her name and address to the deputy returning officer and the
poll clerk, and, on request, to a candidate or his or her representative.

(2)        If the poll clerk determines that the electors
name and address appear on the list of electors or that the elector is allowed
to vote under section 146, 147, 148 or 149, then, subject to subsection (3),
the elector shall provide to the deputy returning officer and the poll clerk
the following proof of his or her identity and residence:

(
a
)
one piece of
identification issued by a Canadian government, whether federal, provincial or
local, or an agency of that government, that contains a photograph of the
elector and his or her name and address; or

(
b
)
two pieces of
identification authorized by the Chief Electoral Officer each of which
establish the electors name and at least one of which establishes the
electors address.

(2.1)     For greater certainty, the Chief Electoral Officer
may authorize as a piece of identification for the purposes of paragraph (2)(
b
)
any document, regardless of who issued it.

(2.2)     For the purposes of paragraph (2)(
b
), a
document issued by the Government of Canada that certifies that a person is
registered as an Indian under the

Indian
Act
constitutes an authorized piece of identification.

(3)        An elector may instead prove his or her identity
and residence by taking the prescribed oath if he or she is accompanied by an
elector whose name appears on the list of electors for the same polling
division and who

(
a
) provides to the deputy
returning officer and the poll clerk the piece or pieces of identification
referred to in paragraph (2)(
a
) or (
b
), respectively; and

(
b
) vouches for him or her
on oath in the prescribed form.

(3.1)     If the address contained in the piece or pieces of
identification provided under subsection (2) or paragraph (3)(a) does not prove
the electors residence but is consistent with information related to the
elector that appears on the list of electors, the electors residence is deemed
to have been proven.
[2]

(3.2)     Despite subsection (3.1), a deputy returning
officer, poll clerk, candidate or candidates representative who has reasonable
doubts concerning the residence of an elector referred to in that subsection
may request that the elector take the prescribed oath, in which case his or her
residence is deemed to have been proven only if he or she takes that oath.

(4)        If the deputy returning officer is satisfied that
an electors identity and residence have been proven in accordance with
subsection (2) or (3), the electors name shall be crossed off the list and,
subject to section 144, the elector shall be immediately allowed to vote.

(5)        No elector shall vouch for more than one elector
at an election.

(6)        An elector who has been vouched for at an election
may not vouch for another elector at that election.

(7)        The Chief Electoral
Officer shall publish each year, and within three days after the issue of a
writ, in a manner that he or she considers appropriate, a notice setting out
the types of identification that are authorized for the purpose of paragraph
(2)(
b
). The first annual notice shall be published no later than six
months after the coming into force of this subsection.

[24]

Accordingly, s. 143(2) of the
Act
requires that to vote at
the polls in an election, an elector must show one piece of government-issued identification
with a photo, name, and address (e.g., a drivers licence) or two pieces of
identification, each of which establishes the electors name and at least one
of which establishes his or her address.  If the address on the document
proving identity does not contain a residential address, the elector will have
proved residence if the address is consistent with the information contained
on the list of electors.  Alternatively, under s. 143(3), an elector may prove
his or her identity by both taking the prescribed oath and having another
elector who lives in the same polling division vouch for him or her.  An
elector may vouch for only one elector; an elector who has been vouched for may
not vouch for another elector.  The same procedures apply both to an elector
who is already on the list of electors and to an elector who seeks to register
on polling day.

[25]

Section 143(2)(b) of the
Act
requires the CEO to issue and amend
a list of approved identification which the CEO must publish annually and
within three days of an election writ being issued.  The version in effect in April
2009 provided:

Identity
Cards

Health Card

Social Insurance Number Card

Birth Certificate

Drivers Licence

Canadian Passport

Certificate of Indian Status

Certificate of Canadian
Citizenship or Citizenship Card

Credit/Debit Card with elector
name

Canadian Forces Identity Card

Veterans Affairs Canada Health
Card

Employee Card issued by employer

Old Age Security Identification
Card

Public Transportation Card

Student Identification Card

Library Card

Liquor Identification Card

Canadian Blood
Services/Héma-Québec Card

Hospital Card

Fishing Licence

Wildlife Identification Card

Hunting Licence

Firearm Acquisition Card/Firearm
Possession Card

Outdoors Card and Licences

Provincial/Territorial
Identification Card

Local Community Service Centre Card (CLSC)

Original
Documents (containing name and address)

Credit Card Statement

Bank Statement

Utility Bill (residential telephone,
cable television, public utilities commission, hydro, gas or water)

Attestation of Residence issued by
the responsible authority of an Indian Band or reserve

Local Property Tax Assessment

School, College or University
Report Card or Transcript

Residential Lease, Residential
Mortgage Statement or Agreement

Canada Child Tax Benefit Statement

Income Tax Assessment Notice

Insurance Policy

Government Cheque or Government
Cheque Stub with elector name

Statement of Employment Insurance
Benefits Paid (T4E)

Canada Pension Plan Statement of
Contributions/Québec Pension Plan Statement of Participation

Statement of Old Age Security
(T4A) or Statement of Canada Pension Plan Benefits (T4AP)

Statement of Benefits from
provincial workplace safety or insurance board

Statement of Direct Deposit for
provincial works or provincial disability support program

Vehicle Ownership

Vehicle Insurance

Attestation of Residence issued
by the responsible authorities (shelters, soup kitchens, student/senior
residences, long-term care facilities
)

Letter from public curator.

[Emphasis added.]

[26]

As it stands, the CEOs approved list of identification permits
homeless and other vulnerable persons who possess no government-issued
identification or other paper linking them to a place of residence, to prove
their identity and place of ordinary residence through the use of
attestations.  An official from a shelter, for example, can issue a letter of
attestation stating that an individual uses the facility as a residence.  Poll
staff then check the signature on this letter of attestation against a list of
approved signatures.

[27]

In practice, the CEO publishes the list in a permanent fashion
on-line, and makes changes to that list as needed from time to time.

The Appellants
Experience in the 2008 General Election

[28]

Rose Henry voted in the 2008 general election.  She is a member of the
Snuneymuxw First Nation and is an anti-poverty activist who has at times been
homeless.  In early 2007, she lived at a residential address in Victoria.  She
was homeless for much of 2007 and 2008.  In late 2008, she returned to the residential
address.  When she attended her polling station to vote she presented her
drivers licence and was able to vote.  She deposed it was pure luck she
could vote in 2008 because she had happened to return to the residential
address before the election.  In discovery, she testified that she also had
other sufficient documents with her to vote, and that had it been required,
other electors with her could have vouched for her.

[29]

Clyde Wright voted in the 2008 general election.  He is a member of the
Gitanmaax Band of the Gitxsan First Nation.  He lives in the Downtown Eastside of
Vancouver and has frequently been homeless.  It is hard for him to obtain
identification; when he does obtain it, it is often stolen.  He proved his
identity in the 2008 election by a letter of attestation from the Pivot Legal
Society and a community services centre card.  However, he fears he will not be
able to vote in future elections because he lacks a residential address.

[30]

Helen Eddlestone did not vote in the 2008 general election.  She was 86
years old and visually impaired, but she was mobile with assistance of a cane
and lived on her own with some help from her daughter.  In the early morning of
the 2008 general election, she brought her voter information card with her to
the polling station, where staff informed her she needed to show
identification.  The identification she had with her did not comply with the
Act
.
 She suggested the polling staff ask if anyone present could vouch for her, as
she could not see who was in the polling station.  The staff did not do this.  One
staff member offered to make telephone enquiries.  Ms. Eddlestone waited
but the staff member did not return.  She left the polling station after an
hour without having voted.  She did in fact have sufficient identification in
her home to vote, but she was unable to see these documents.  She also did not
call her daughter for help or return to vote later in the day because her cat
had a veterinary appointment and Ms. Eddlestone was too tired to walk back
to the polling station.

[31]

The appellants filed other affidavit evidence that many homeless people
in Vancouver are unsheltered and that theft of identification amongst the
homeless is common.  Canada filed material regarding the existence of various
organizations that help homeless, vulnerable and low income individuals obtain
identification.

[32]

At trial the Attorney General of Canada (Canada, or the AGC)
conceded the appellants had standing to challenge the legislation in question.
The AGC took the position, at trial and in this court, that the appellants had
not proved causation in this case, that is, that the voter identification
requirements caused, or would cause, a failure to vote.  Given that I would
dismiss the appeal on the grounds put forward by the appellants, I have found
it unnecessary to address the causation issue in these reasons.

Reasons for Judgment

The Section 3 Charter
Breach

[33]

The trial judge found that s. 148.1(1), which denies a ballot to
those electors who are unable to prove their identities on election day, creates
a new condition precedent to voting that did not exist previously.  Justice
Smith found that this constituted a facial breach of s. 3 of the
Charter
.
Referring to the decision of this Court in
Hoogbruin v. British Columbia
(Attorney General)
(1985), 24 D.L.R. (4th) 718, 70 B.C.L.R. 1 (B.C.C.A.)
she said:

[190]

Section
148.1(1) denies a ballot to a registered elector who is unable, on election
day, to prove his or her identity and residence to the satisfaction of
Elections Canada officials, pursuant to the

Act
.
On its face, it limits access to the right to vote to those who are able to
satisfy the identification requirements, and its evident purpose is to create
that limit.  The question is whether this provision is inconsistent with
the guarantee of electoral rights under s. 3 of the

Charter
.

[191]

Prior
to the enactment of s. 148.1(1) of the

Act
,
any citizen on the Register of Electors who appeared at the appropriate polling
station and identified herself or himself was able to vote.  Since the
enactment of s. 148.1(1), only those registered electors who provide the
required documentary identification or a person to vouch for them are able to
vote; other registered electors are disenfranchised.  The purpose of the
legislation is to create a new condition precedent to voting.  In

Hoogbruin
, the condition precedent of
personal attendance at the polling station was held to be a limitation on the
right to vote that contravened s. 3 of the

Charter
.  Similarly, in this case,
the condition precedent that registered electors must provide identification is
inconsistent with the s. 3

Charter

guarantee.

[34]

The trial judge went on to articulate her conclusions in the language of
the most recent expression by the Supreme Court of Canada as to the purpose of
s. 3 found in
Figueroa v. Canada (Attorney General)
, 2003 SCC 37,
[2003] 1 S.C.R. 912 [
Figueroa
].  She said:

[192]    Paraphrasing the words
of Iacobucci J. in
Figueroa
at para. 36, if the legislation
interferes with the capacity of each citizen to play a meaningful role in the
electoral process, it is inconsistent with s. 3, and any benefits of the
legislation (in furtherance of countervailing collective interests) must be
considered under s. 1.  Section 148.1(1) does interfere with the
entitlement to cast a vote for those citizens who are unable to produce the
required identification and thus interferes with their capacity to play a
meaningful role in the electoral process.

[35]

The trial judge went on to find that the impugned provisions also offend
s. 3 in their effects.  She found that the plaintiffs established there is
more than a remote or theoretical possibility that the provisions in issue could
have the effect of impeding their electoral rights.  Ms. Henry and Mr. Wrights
evidence shows a reasonably-founded belief they may not be able to vote in the
future; Ms. Eddlestones ability to vote was impeded by the new
requirements, even if they were not the sole cause of her failure to vote.
Justice Smith referred to the evidence of Ms. Graves, a City of Vancouver
employee who works with homeless people, that many homeless people are
unsheltered and have no documentation.  In summary, the existence of
economically or physically disadvantaged people and voters in rural areas is
not theoretical.  The provisions will increase cost and inconvenience to some
of societys most vulnerable citizens.  A possible consequence is that some
people will be unable to cast ballots.  In the words of the trial judge:

[209]    I find that the evidence shows that the
identification requirements imposed by the
Act
will have the effect of
increasing the burden on citizens  particularly economically disadvantaged and
homeless citizens, citizens who live in rural or remote communities, and
citizens who are disabled  in exercising their right to vote in elections for
Members of Parliament.  I find that a possible consequence is that some
eligible citizens (though likely few in number, given the extensive measures
Elections Canada has taken to facilitate voting) may be unable to cast a vote
in future elections.

[210]    In my view, the
plaintiffs have established that the impugned provisions, in their effect,
interfere with the right of each citizen to play a meaningful role in the
electoral process.

[36]

Justice Smith then turned to the question whether the impugned provisions
were justified under s. 1 of the
Charter
, applying the test from
R.
v. Oakes
, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [
Oakes
].

Reasonable
Limits under Section 1

Context
and Deference

[37]

Before applying the
Oakes
test, Justice Smith discussed
the contextual analysis that determines the level of deference owed to
Parliament.

[38]

The trial judge examined the case law where different levels of
deference were paid to the legislature.  She concluded that while areas such as
electoral finance and access to debates may attract more deference to
Parliaments expertise, an individuals right to place a ballot in a box is not
such an area.  That said, because the impugned provisions form part of a
broader scheme that allows for numerous ways of establishing identity, she
found that in this case there must be a level of deference (para. 255).  She
reasoned that although the nature of the right weighs heavily on the side of
stringent scrutiny of the legislation, some deference is owed because of the
inability to measure voter fraud accurately and Parliaments construction of
mechanisms that maximize opportunity for qualified electors to cast a ballot.

Pressing
and Substantial Objective and Rational Connection

[39]

The respondent, the Attorney General of Canada (in these reasons also
referred to as Canada or the AGC), asserted two discrete but related
objectives of the impugned legislation:  a) protecting the integrity of
the vote, and b) maintaining public confidence in the integrity of the
electoral system.  The AGC further particularized the objectives as:

1.       To address the harm of
fraud;

2.       To address the
potential for fraud;

3.       To address the public
perception of fraud and the potential for fraud;

4.       To
address mistakes and inaccuracies in the electoral system and the conduct of
elections thereby ensuring that the electoral system and the conduct of
elections is, and is perceived to be, fair, secure and effective; and,

5.       To ensure that only eligible
voters cast their votes.

[40]

Justice Smith found the objectives of preventing voter fraud and
maintaining confidence in the electoral system to be pressing and substantial.
Citing the low standard for rational connection, she found the provisions were
rationally connected.  No party takes issue with these specific aspects of her
Oakes
analysis on appeal.  In fact, the appellants conceded that the objectives
of the impugned legislation were pressing and substantial, and almost all the
provisions rationally connected to it.  However, they did not agree that
requiring proof of residence was connected, nor the vouching process.  The
trial judge dealt with these complaints in her minimal impairment analysis.

Minimal Impairment

[41]

The appellants argued the legislation is not minimally impairing for
three reasons:  it requires electors to have an address; does not permit
multiple or serial vouching; and only permits vouching for someone in the same
polling district.

[42]

The trial judge rejected the appellants first argument.  She accepted
the AGCs position that the
Act
does not require a voter to have an
address to vote.  Through the vouching procedure, a voter without a civic or
mailing address can be placed on the list of electors for the polling district
in which they ordinarily reside.  As noted earlier, the CEOs approved list of
identification allows homeless people without a civic address to use a shelter,
for example, as their ordinary residence for the purpose of voting.

[43]

Carrying on with her analysis, the trial judge observed that laws of
general application are by necessity not tailored to individuals; the courts
must analyze the provisions in a societal context.  She concluded that the
question is not whether a more advantageous arrangement for a particular
claimant could be devised.  Justice Smith found that Parliaments objectives
would not be met by looser vouching procedures or the ability to swear a
statutory declaration without a voucher.  In both cases, the possibility of
personation is higher.  If someone could swear an oath without any other
evidence of their identity or residence, then he or she would leave behind a
piece of paper with a signature [that] would be meaningless (para. 366).  A
serial voucher, for example, could vouch for many other people without any sort
of paper trail.

[44]

The trial judge concluded that there were no alternative, less drastic
measures to achieve Canadas objectives and the scheme fell within a range of
reasonable alternatives.  In the result, the trial judge found the impugned
provisions passed the minimal impairment hurdle.

Proportionate
Effects

[45]

Justice Smith found the deleterious effects did not outweigh the
salutary effects of the legislation.  While she found the evidence showed no
systemic electoral fraud in federal elections, she observed that the secret
nature of voting makes it impossible to know the full extent of fraud.  In
addition, there have been actual cases of fraud prosecuted by Elections Canada.
 The
Act
makes erroneous or fraudulent voting significantly less likely;
it also provides reassurance to those who are concerned about electoral fraud,
and thereby would tend to enhance confidence [in the system] (para. 400).

[46]

The trial judge did not confine her analysis of deleterious effects to
the specific appellants, noting the court can take a societal perspective.  She
reviewed at length surveys conducted by Elections Canada about the new voting
laws following certain by-elections.  The surveys identified potential
identification problems in a rural Saskatchewan riding with a high proportion
of Aboriginal voters and problems with polling stations in seniors residences.
 However, the surveys were such that it was not possible to determine
conclusively that any individual voter did not vote solely because of the new
identification requirements.  In the end, Justice Smith found at para. 473
it would be:

a fair inference that, among
millions of Canadians who were eligible to vote, for a small number, the voter
identification requirements played some role in deterring them from voting
−
as they did for Ms. Eddlestone.
These deterrent effects would likely be greater on the Canadians who are
economically disadvantaged, are seniors, live in rural or remote areas, or have
disabilities. It is also a fair inference that the requirements ... in very
rare cases ... might altogether prevent some electors from voting.

[47]

Ultimately, she found the deleterious effects did not outweigh the benefits.
 The salutary effects were modest but the new
Act
will lower the risk
of fraud and increase confidence.  The deleterious effects are very modest,
amounting to the most part to minor inconvenience for a minority of electors (para. 480).
 Further, Parliament cannot be held to the standard of perfection.

[48]

In summary, she found the provisions infringed s. 3 but were
justified under s. 1.

The Grounds of Appeal

[49]

The appellants set out four grounds of appeal.  They submit that:

a)

The
learned trial judge erred in law or in principle by failing to find the
s. 3 violation extended beyond interference with the right to play a
meaningful role in the electoral process;

b)

The
learned trial judge erred in law or in principle by according excessive
deference to Parliament;

c)

The
learned trial judge erred in law or in principle by misapplying the
proportionality aspect of the
Oakes
test by finding that the impugned
provisions are minimally impairing of the right to vote; and

d)

The learned trial judge erred in law or in principle by finding that the
salutary effects of the impugned provisions outweigh their deleterious effects.

The
First Ground of Appeal

Positions
of the Appellants and Respondent

[50]

The appellants and the respondent both disagree with the way in which
the trial judge characterized the breach.  Thus the meaning and purpose of
s. 3 of the
Charter
became a central issue for both parties on this
appeal.

[51]

The appellants took the position that the trial judge fell into error by
reducing the content of s. 3 of the
Charter
to the right to play a
meaningful role in the electoral process.  They accept that this is the
purpose
of the guarantee, but, echoing McLachlin C.J.B.C. (as she then was) in
Dixon
v. British Columbia (AG)
(1989), 59 D.L.R. (4th) 247 at 256, 35 B.C.L.R.
(2d) 273 (B.C.S.C.) they argue that s. 3 must contain both procedural and
substantive rights if it is to achieve its purpose.  They argue that procedural
rights are granted by the express words of s. 3, i.e., the right of a
citizen to vote in an election of members of the House of Commons or of a
legislative assembly and to be qualified for membership therein.  A
purposive analysis of these express words, they say, reveals that the purpose
of the section is to grant to citizens the right to play a meaningful role in
the electoral process.  Implicit rights follow from that purpose and so
ancillary or corollary rights must be read into the section to fulfill its role
beyond the simple act of voting and being qualified for membership in the House
of Commons or legislative assembly.  The ancillary rights include such things
as the right to have ones vote count for the same as other valid votes.

[52]

The appellants say that their case is centered on the procedural aspect
of s. 3.  They argue that any limitation on the right to physically place
a ballot in the box constitutes a breach of s. 3 which must be justified
under s. 1 of the
Charter
.  They disagree with the importance the
trial judge placed on the fact that Ms. Eddlestone did not vote in the election
because of a number of reasons, one of which was the voter identification
rule.  They say that it was enough for Ms. Eddlestone to show that the
identification rule was one of the causes.  They say that Ms. Eddlestone
was prevented from voting on account of the voter identification provisions,
and that the breach of the right was therefore a denial (rather than a mere
interference) with the franchise.  The appellants say that requiring electors
to produce acceptable identification before they vote is no doubt an
impediment to their right to play a meaningful role in the electoral process,
but it is more than that.  They argue that the gravamen of the breach in this
case is the disenfranchisement of any qualified elector who cannot produce
accepted identification.  The appellants say that the trial judges s. 1
analysis was premised on an incomplete understanding of the extent of the
breach.  Had the trial judge fully comprehended its breadth, she would not have
found that the legislation was demonstrably justified under s. 1 of the
Charter
.

[53]

The respondent defends the order dismissing the application on two
bases.  First, the AGC presses the argument that the trial judge ought to have
dismissed the application on the footing that the appellants had not
established a s. 3 breach.  The AGC cites
R. v. Perka
, [1984] 2
S.C.R. 232 at 240, 13 D.L.R. (4th) 1, for the well-known proposition that a
respondent is entitled to advance all arguments that sustain a trial judgment,
even those that did not find favour in the trial court.  Second, the respondent
says that if the impugned legislation does breach s. 3, the trial judge
was correct in finding that it is justified under s. 1 of the
Charter
.

[54]

On the first point the AGC submits that the trial judge erred in this
case by failing to critically examine what the right to vote entails.  Once the
nature and purpose of the right to vote are understood in the context of the
Canadian electoral system, it becomes clear, the AGC says, that the
identification requirements [of the impugned legislation] do not limit, or
interfere with or deny the right.  Rather, the identification requirements
protect and enhance the right to vote.  It is the position of the AGC that a
review of the case law
[3]
reveals the complexity of s. 3.  He argues that the right contains a
number of core elements:

1.       The right to have
ones voted counted;

2.       The
right and expectation of citizens to have a fair electoral process so that the
s. 3 right does not become a hollow and empty one;

3.       The
right to have ones vote count for the same as other valid votes cast in their
electoral district  relative parity of voting power;

4.       The
right to be represented by a candidate with at least a plurality of votes in a
district; and

5.       Representation by
population.

[55]

The AGC submits that all of the core elements must be examined in
determining whether s. 3 has been breached.  He argues that the right to
cast a ballot is only one aspect of the right to vote.  The AGC asks
rhetorically  what good is the right to put a ballot in the box if, for
example, that ballot is not counted, or not counted equally with every other
ballot in the box?  The essential point made by the AGC is that the
identification requirements of the impugned legislation are designed to enhance
the right to vote by seeking to ensure that only qualified electors vote, that
they only vote once, and that they vote only in the proper electoral district.
Had the trial judge undertaken a proper analysis, the AGC submits, she would
have concluded that the impugned sections do not breach the appellants
Charter
rights.

Analysis

[56]

In my view, the appellants have correctly identified how the
jurisprudence from the Supreme Court of Canada has come to define the contents
and operation of s. 3.  I agree with the appellants that any interference
with the right to put a ballot in the box must be justified under s. 1 of
the
Charter
.

[57]

To repeat, s. 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.

On the face of it, the rights given under s. 3 of
the
Charter
are restricted only by citizenship and connection to an
electoral district.  This follows from the wording of s. 3 of the
Charter
which provides that citizens have the right to vote in an election of members
of the House of Commons or of a legislative assembly.

[58]

Early
Charter
jurisprudence explored the idea that s. 3
presupposes certain attributes of the voter which are inherent but not
expressed in s. 3.  In
R. v. Badger
(1986), 51 C.R. (3d) 163 at
p. 171, 30 D.L.R. (4th) 108, (Man. Q.B.), Justice Scollin opined that it
is pedantic to classify such things as age and residence as limits to the
right.  In his view they are simply its rational dimensions.  This analysis
is similar to the one made in the case at bar by the AGC.  However, the
analysis was not adopted in subsequent cases.  This is made clear in
Harvey
v. New Brunswick (Attorney General)
, [1996] 2 S.C.R. 876, 137 D.L.R. (4th)
142 [
Harvey
], where the scope of the specific words of s. 3 was at
issue.

[59]

In
Harvey
the Supreme Court of Canada examined legislation
(s. 119(c) of the
Elections Act
, R.S.N.B. 1973, c. E-3) which
provided that a member of the New Brunswick legislature would, upon conviction
for an illegal or corrupt practice, be disqualified from running as a candidate
for five years.  The question was whether the legislation violated s. 3 of
the
Charter
.  The positions of the parties were set out by La Forest J.
at paras. 21 and 22:

[21]       The appellants position is straightforward.
Section 3 of the
Charter
, he maintained, provides an unqualified right
for every citizen of Canada to vote and to seek public office.  In support of
this position the appellant relied on the fact that the rights protected by
s. 3 are preferred rights in that they are not subject to the
notwithstanding clause found in s. 33 of the
Charter
.  In short, he
insists that any restriction on the rights contained in s. 3 must be
justified under s. 1 of the
Charter
.

[22]      The competing
viewpoint, urged on the Court both by the respondents and by the Attorney
General of Canada, is that the rights guaranteed by s. 3 are not absolute
but contain inherent limitations that need not be justified under s. 1 of
the
Charter
.  More specifically, they argue, when a contextual approach
is applied to s. 3, and the specific language used in the section is taken
into account, the validity and consistency of s. 119(c) become clear.

[60]

La Forest, J. then turned to analyze the two positions:

[27]      This
then becomes a central question: what is meant by the expression found in
s. 3 of the
Charter
that [e]very citizen of Canada has the right
to vote in an election of members of  a legislative assembly and to be
qualified for membership therein, and what is the purpose behind the right?
The respondents argue that the right to effective representation is at the
heart of the right to be qualified for membership in a legislative assembly.
Since the disqualification provisions of s. 119 of the
Elections Act
exist to preserve the integrity of the electoral process, and thereby help to
ensure effective representation, they are in accord with s. 3 of the
Charter
.
Similarly, the Attorney General of Canada focuses first on the language of
s. 3, arguing that the use of the word qualified indicates that inherent
in the right to be a candidate are limitations that are necessary to ensure
effective representation. He goes on to argue that regard must be had to the
appropriate historical context underlying the right. In particular, he notes
that there has been a continual evolution of candidate eligibility requirements
and disqualifications throughout Canadian history; that disqualifications such
as those found in s. 119 have their origin in the widespread election
corruption that was prevalent in the early years of confederation; and that
disqualifications for corrupt or illegal election practices are to be found in
many foreign jurisdictions.

[61]

La Forest J. stated his conclusions in this way:

[28]      While these arguments may
initially appear persuasive, I agree with the appellant that the provisions of
s. 119(c) are
prima facie
unconstitutional as violating his rights
under s. 3 of the
Charter
. My reasons are twofold. First, there is
the language of s. 3. Admittedly in the English version the words right
to be qualified are somewhat ambiguous. The use of the word qualified
suggests that certain criteria must be met before a citizen can run for office.
However, since there exists a right to be qualified, it would appear that
qualification is automatic regardless of any criteria set out by statute. If it
was Parliaments intent to confer on every citizen the right to be a candidate,
clearer language should have been used. But we are not left in doubt. A
more precise statement of the right appears in the equally authoritative
French text, which uses the phrase
Tout citoyen canadien

est
éligible aux élections
. The word
éligible
translates as
eligible in English and is defined in
Le Nouveau Petit Robert
(1994),
at p. 733, as one who has met the relevant conditions so that they can be
chosen. This suggests that the English version of s. 3 should be read as
[e]very citizen  is qualified for membership therein. In short, while the
English version is somewhat lacking in clarity, the French version is
straightforward and indicates that the right to be a candidate and to sit as a
member of Parliament or a legislative assembly should be read in a broad
manner.

[29]      Secondly, and in my view this is
decisive, to accept the respondents position would be to remove the balancing
of interests from s. 1 and incorporate it in s. 3 of the
Charter
.
In their oral submissions counsel for both the respondents and the Attorney
General of Canada argued that any given qualification or limitation should
first be weighed against the interests represented by s. 3 to determine if
there was a violation of that section. Such an approach runs counter to the
recent practice of this Court.

[30]      In interpreting the right to vote
under s. 3 this Court, and Canadian courts in general, have taken the
approach that the justification for limitations on the right must be grounded
in s. 1 of the
Charter
. As I have earlier noted, I do not believe
the wording in the second part of s. 3 justifies taking a different
approach to the right to stand for election and become a Member of Parliament
or a legislative assembly. This is in accord with this Courts well established
approach of reading
Charter
rights broadly and putting the burden of
justifying limitations upon the state. In
B. (R.) v. Childrens Aid Society
of Metropolitan Toronto
, [1995] 1 S.C.R. 315, at pp. 383-84, in the
context of freedom of religion under s. 2(
a
) of the
Charter
,
I emphasized the importance of carrying out any required balancing of rights
under s. 1:

This Court has consistently refrained from
formulating internal limits to the scope of freedom of religion in cases where
the constitutionality of a legislative scheme was raised; it rather opted to
balance the competing rights under s. 1 of the
Charter
; see
R.
v. Jones
,
supra
, and
R. v. Edwards Books and Art Ltd.
,
supra
.
A similar approach was taken in the context of s. 2(
b
) of the
Charter
,
freedom of expression. In
R. v. Keegstra
,
supra
, Dickson
C.J., writing for the majority, stated that s. 1 was better suited than
s. 2(
b
) to facilitate the necessary balance between state and
individual interests

In my view, it appears sounder to leave to
the state the burden of justifying the restrictions it has chosen. Any
ambiguity or hesitation should be resolved in favour of individual rights. Not
only is this consistent with the broad and liberal interpretation of rights
favoured by this Court, but s. 1 is a much more flexible tool with which to
balance competing rights than s. 2(a).

[62]

In concluding that the words of the section granted an absolute right to
both vote and stand for election, La Forest J. rejected what he saw as the
contextual approach set out in the earlier case,
Reference
Re Provincial Electoral Boundaries (Sask.)
, [1991] 2 S.C.R. 158, 81 D.L.R. (4th)
16 [
Saskatchewan Reference
]
.
He said
:

[23]      In order to choose between these
two fundamentally different viewpoints, the logical place to start is with this
Courts previous treatment of s. 3 of the
Charter
. While the Court
has not yet examined the right to be an elected member found in the second part
of s. 3, it has on several occasions had the opportunity to consider the
right to vote enshrined in the first part of the section. The fullest treatment
of the right to vote appears in McLachlin J.s majority reasons in
Reference
Re Prov. Electoral Boundaries (Sask.)
, [1991] 2 S.C.R. 158 [
Saskatchewan
Boundaries case
]. At issue there was whether the purpose of the right was
to guarantee equality of voting power or effective representation. Beginning at
p. 179, McLachlin J. first considered the manner in which the content of a
Charter
right is to be determined. She identified the general principle,
emerging from
R. v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295, as being
that
Charter
rights should be interpreted in a broad and purposive
manner having regard to the appropriate historical and social context. From
this general principle she identified three particular considerations that were
relevant to the interpretation of the right to vote: (1) that the
Charter
is part of the living tree that is the Canadian constitution and that as such,
the past plays a critical but non-exclusive role (p. 180) in determining the
scope of
Charter
rights; (2) that practical considerations should be
borne in mind when undertaking constitutional interpretation; and (3) that the
Court must be guided by the ideal of a free and democratic society as
enunciated by Dickson C.J. in
R. v. Oakes
, [1986] 1 S.C.R. 103.

[24]      Applying these considerations to
the first part of s. 3, McLachlin J. concluded that the right enshrined by
the right to vote was the right to effective representation. She stated, at
pp. 188-89:

In summary, I am satisfied that the
precepts which govern the interpretation of
Charter
rights support the
conclusion that the right to vote should be defined as guaranteeing the right
to effective representation. The concept of absolute voter parity does not
accord with the development of the right to vote in the Canadian context and
does not permit of sufficient flexibility to meet the practical difficulties
inherent in representative government in a country such as Canada. In the end,
it is the broader concept of effective representation which     best serves the
interests of a free and democratic society.

Based on this interpretation, McLachlin J.
went on to find that the electoral boundaries in question did not violate
s. 3 of the
Charter
since they could be justified on the grounds of
effective representation and did not need to be justified under s. 1.

[25]
In contrast to this approach
is that used by this Court and others in dealing with particular statutory
disqualifications of voters. In
Sauvé v. Canada (Attorney General)
,
[1993] 2 S.C.R. 438, the Court found that the voting disqualification for
inmates found in the
Canada Elections Act
, R.S.C., 1985, c. E-2,
violated s. 3 and could only be justified under s. 1 of the
Charter
.
Similarly, the federal disqualifications of mentally incompetent persons and
federally appointed judges, and a provincial disqualification of absentee
citizens have all been found to be
prima facie
unconstitutional; see
Canadian
Disability Rights Council v. Canada
, [1988] 3 F.C. 622 (T.D.);
Muldoon
v. Canada
, [1988] 3 F.C. 628 (T.D.); and
Re Hoogbruin and
Attorney-General of British Columbia
(1985), 24 D.L.R. (4th) 718
(B.C.C.A.).

[26]      Professor Peter Hogg in
Constitutional
Law of Canada
(3rd ed. 1992 (loose-leaf)) would apply the same logic to
disqualifications in respect of the candidacy right in the second part of
s. 3. He states in vol. 2 at s. 42.2:

The qualifications of a member of the House
of Commons or a legislative assembly are prescribed by statute in each
jurisdiction, and various citizens are disqualified  All disqualifications of
citizens are, of course, now contrary to the Charter, unless they can be
justified under s. 1.

In support of this position Professor Hogg
cites the Nova Scotia Supreme Court Trial Division case of
MacLean v. Nova
Scotia (Attorney General)
(1987), 76 N.S.R. (2d) 296. There Glube C.J.T.D.
held that a provincial statute which retroactively imposed a five-year
disqualification on running in a provincial election violated s. 3 of the
Charter
.
She arrived at this result on what she saw as the clear wording of s. 3
(at p. 305):

On the plain meaning of the words in
s. 3 of the
Charter
, I find that an attempt to put limits on membership
qualification violates Mr. MacLeans right as a citizen to be qualified
for membership in the House of Assembly of Nova Scotia.
[Emphasis
added.]

[63]

I take from this that any legislation which has the effect of encumbering
the explicit words of s. 3 breaches the right and must be justified under
s. 1 of the
Charter.
However the AGC disagrees and says that the
subsequent decision in
Figueroa
clarified the approach to take.  The AGC
submits that
Figueroa
has defined the full right in s. 3 as the
right to play a meaningful role in the electoral process.  If this is the
case, he argues, the right is multi-faceted and all of its elements ought to be
considered when determining whether legislation constitutes a breach of
s. 3.  I do not read
Figueroa
in that way.

[64]

The issue in
Figueroa
was whether federal legislation that
restricted the right of candidates of smaller parties to list the partys name
on the ballot and to issue tax receipts contravened s. 3 of the
Charter
.
In determining the content of s. 3 Iacobucci J., for the majority, said
this at paras. 19 and 20:

... On its face, the scope of s. 3 is relatively
narrow:  it grants to each citizen no more than the bare right to vote and to
run for office in the election of representatives of the federal and provincial
legislative assemblies.  But
Charter
analysis requires courts to look
beyond the words of the section.  In the words of McLachin C.J.B.C. (as she
then was), [m]ore is intended [in the right to vote] than the bare right to
place a ballot in a box.  [Citation omitted.]

In order to determine the scope
of s. 3, the Court must first ascertain its purpose.

[65]

Iacobucci J. then looked to a number of earlier cases, including
Saskatchewan
Reference.

[66]

The issue in
Saskatchewan Reference
was whether proposed changes
to electoral boundaries that resulted in a variance in voter populations
between rural and urban ridings violated s. 3 of the
Charter
.  For
the majority, McLachlin J. (as she then was) defined the issue in para. 46:
 The question for resolution on this appeal can be summed up in one sentence:  To
what extent, if at all, does the right to vote enshrined in the
Charter
permit deviation from the democratic principle of one person-one vote rule?
In determining the answer to that question McLachlin J. concluded that the
right permitted deviation on the grounds of practical impossibility or the
provision of more effective representation.  First, she noted absolute parity
is impossible.  As she put it, voters die and voters move making it impossible
to ever guarantee the same number of voters in each district.  Secondly, as
McLachin J. reasoned at para. 54:

... [S]uch relative parity as may
be possible of achievement may prove undesirable because it has the effect of
distracting from the primary goal of effective representation.  Factors like
geography, community history, community interests and minority representation
may need to be taken into account to ensure that our legislative assemblies
effectively represent diversity of our social mosaic.  These are but examples
of considerations which may justify departure from absolute voter parity in the
pursuit of more effective representation: the list is not closed.

[67]

In my view, McLachlin J. was here deciding whether an absolute right to
voter parity was guaranteed by s. 3.  She was defining the contents (as
opposed to purpose) of the right itself.  She concluded that s. 3, for the
reasons she gave, did not guarantee absolute voter parity.

[68]

McLachlin J. was not, as some have suggested, balancing the rights of
the urban voters against those of the rural voters in assessing a possible
breach.  In
Figueroa
the minority opinion, written by LeBel J., reached
the conclusion that
Saskatchewan Reference
decided that some diminution
of one aspect of effective representation (parity) can ultimately result in the
provision of more effective representation (at para. 117).  The majority
opinion, expressed by Iacobucci J., specifically disagreed with that
interpretation.  Iacobucci J. read the case as ultimately deciding that the
considerations afforded to rural voters did not breach the s. 3 rights of
urban voters.  He said at para. 23:

The issue in that case was not
whether the departure from absolute voter parity could be justified by virtue
of the benefits that it provided to rural voters, but whether the departure
from absolute voter parity was consistent with s. 3,
not because the
departure provided for the more effective representation of rural voters, but
rather, because it did not interfere with the right of urban voters to an
effective representation in the legislative assembly
.  [Emphasis added.]

And later at para. 33:

... As discussed throughout, the
purpose of s. 3 is to protect the right of each citizen to play a
meaningful role in the electoral process.
Where the impugned legislation is
inconsistent with the express language of s. 3, it is unnecessary to
consider the broader social or political context in order to determine whether
the legislation has this effect
.
But where the legislation affects the
conditions in which citizens exercise those rights it may not be so obvious
whether the legislation has this effect.
Consequently it may be necessary
to consider a broad range of factors such as social or physical geography, in
order to determine whether the legislation infringes the right of each citizen
to play a meaningful role in the electoral process subject to countervailing
collective interests.  Those interests fall to be considered under s. 1.  [Emphasis
added.]

[69]

Three things follow from these cases.  First, s. 3 contains a
bundle of rights derived from its explicit words and from its purpose of
guaranteeing the rights of citizens to play a meaningful role in the electoral
process.  The explicit rights are procedural and spelled out in the section.
The implicit rights are substantive and may require resort to a broad range of
factors to determine.  To paraphrase Iacobucci J. in
Figueroa
, the
implicit rights are the conditions under which the right to play a meaningful
role in the electoral process are expressed.  Infringement of any of the rights
constitutes a breach of s. 3.

[70]

It follows from all of this that the s. 3 right to cast a ballot
for a candidate in a federal or provincial election is limited only by the
specific wording of the section, that is, by citizenship and residence.  Any
other impediment to the ability of an elector to cast a vote constitutes a
facial breach of the section.  Where legislation, such as the legislation in
question in this case, has the double effect of breaching the rights of some
citizens while enhancing the rights of others, the duty of the court is to
first isolate the breach and then to determine whether it is justifiable under
s. 1.  If the impugned legislation also has the effect of enhancing an
aspect of the right, it is a factor to take into consideration in the s. 1
analysis.

Conclusion

[71]

I have rejected the respondents position as to the correct test to apply
in determining a breach of s. 3 of the
Charter
.  I accept the
appellants articulation of the test to apply.  I agree with the appellants
that the impugned legislation is a facial breach of s. 3.  That said, I am
of the view that the appellants have failed to demonstrate that the trial judge
fell into error in her application of the test.

[72]

The legislation in issue in this case refuses a vote to electors who
cannot produce proof of identification that meets the standards set out in the
Act
.
As such, it is a violation of the clear words of s. 3, the guarantee of the
right to cast a ballot in an election for members of the House of Commons.  The
breach need not be characterized as anything beyond that.  I agree with the
appellants that it was unnecessary for the trial judge to cast the breach in
terms of the purpose of the section.  But in doing so the trial judge did
nothing more than state the obvious.  A citizen plays a meaningful role in the
electoral process when he or she casts a vote and any interference with that
right is a breach of s. 3.  This is what the trial judge was saying when
she said:

[192]    Paraphrasing the words
of Iacobucci J. in
Figueroa
at para. 36, if the legislation
interferes with the capacity of each citizen to play a meaningful role in the
electoral process, it is inconsistent with s. 3, and any benefits of the
legislation (in furtherance of countervailing collective interests) must be
considered under s. 1.
Section 148.1(1) does interfere with the
entitlement to cast a vote for those citizens who are unable to produce the
required identification and thus interferes with their capacity to play a
meaningful role in the electoral process
.  [Emphasis added.]

[73]

The appellants first ground of appeal also includes the argument that
the trial judge did not appreciate the extent of the breach, that is, that she
saw it as an impediment to vote rather than a disenfranchisement.  I do not
agree.  In my view the trial judge clearly viewed the breach as a
disenfranchisement of voters who could not present the required identification
when they came to vote.  To repeat her words again:

[191]

Prior
to the enactment of s. 148.1(1) of the

Act
,
any citizen on the Register of Electors who appeared at the appropriate polling
station and identified herself or himself was able to vote.  Since the
enactment of s. 148.1(1), only those registered electors who provide the
required documentary identification or a person to vouch for them are able to
vote;
other registered electors are disenfranchised
.  The purpose
of the legislation is to create a new condition precedent to voting.  In

Hoogbruin
, the condition precedent of
personal attendance at the polling station was held to be a limitation on the
right to vote that contravened s. 3 of the

Charter
.  Similarly, in this case,
the condition precedent that registered electors must provide identification is
inconsistent with the s. 3

Charter

guarantee.  [Emphasis added.]

[74]

In my view, the appellants have not established that the trial judge
erred in her understanding or application of s. 3 of the
Charter
.
I would not accede to the first ground of appeal.

The Second Ground of
Appeal

[75]

If legislation which is found by a court to breach the
Charter
is
to stand, the state must justify it pursuant to s. 1, which provides:

The
Canadian Charter of Rights
and Freedoms
guarantees 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.

[76]

The appellants take issue with the way in which the trial judge stated
and applied the test that the government was obliged to meet in justifying the
breach under s. 1.  They express their second ground as this:

b)         The learned trial judge erred
in law or in principle by according excessive deference to Parliament.

[77]

As Chief Justice McLachlin stated in
Sauvé v. Canada (Chief Electoral
Officer)
, 2002 SCC 68, [2002] 3 S.C.R. 519 [
Sauv
é
No. 2
]:

[7
]

To justify the infringement of a

Charter

right, the government must show that
the infringement achieves a constitutionally valid purpose or objective, and
that the chosen means are reasonable and demonstrably justified:

R. v. Oakes
,

[1986] 1 S.C.R. 103.  This
two-part inquiry − the legitimacy of the objective [whether the objective
is pressing and substantial] and the proportionality of the means −
ensures that a reviewing court examine rigorously all aspects of
justification.  Throughout the justification process, the government bears
the burden of proving a valid objective and showing that the rights violation
is warranted − that is, that it is rationally connected, causes minimal
impairment, and is proportionate to the benefit achieved [whether its salutary
benefits outweigh its deleterious effects].

[78]

The only serious issues before the trial court in the justification
stage of the case at bar were whether the AGC had established that the
legislation did not minimally impair the
Charter
right, and had
established that the salutary effects of the legislation outweighed its
deleterious effects.  Before embarking on these two parts of the
Oakes
analysis Justice Smith discussed the question of what deference, if any, the
court ought to pay to Parliament when examining legislation that interferes
with the right to vote.

[79]

Deference is the attitude which might be assumed by the court in
assessing whether legislation that is found to constitute a breach of the
Charter
can be justified under s. 1.  The role of deference when s. 3 of the
Charter
is in issue was discussed in
Sauv
é No 2.
That case dealt with a section of the
Canada Elections Act
that denied the right to vote to prisoners serving
a sentence in a penitentiary.

The Chief Justice,
speaking for the majority, held that the right to vote holds a special place in
our democracy.  She concluded that any attempt by the government to interfere with
it must be closely scrutinized.

[9]        ...The
right to vote is fundamental to our democracy and the rule of law and cannot be
lightly set aside.
Limits on it require not deference, but careful
examination.  This is not a matter of substituting the Courts
philosophical preference for that of the legislature, but of ensuring that the
legislatures proffered justification is supported by logic and common sense.

[13]      The
core democratic rights of Canadians do not fall within a range of acceptable
alternatives among which Parliament may pick and choose at its
discretion.  Deference may be appropriate on a decision involving
competing social and political policies. It is not appropriate, however, on a
decision to limit fundamental rights.  This case is not merely a
competition between competing social philosophies.  It represents a
conflict between the right of citizens to vote
−
one of the most fundamental rights guaranteed by the

Charter

−
and Parliaments denial of that right.  Public debate on an issue does not
transform it into a matter of social philosophy, shielding it from full
judicial scrutiny.  It is for the courts, unaffected by the shifting winds
of public opinion and electoral interests, to safeguard the right to vote
guaranteed by s. 3 of the

Charter
.

[14]
Charter

rights are not a matter of privilege or merit, but a
function of membership in the Canadian polity that cannot lightly be cast
aside.  This is manifestly true of the right to vote, the cornerstone of
democracy, exempt from the incursion permitted on other rights through s. 33
override.  Thus, courts considering denials of voting rights have applied
a stringent justification standard:

Sauvé v. Canada (Attorney General)

(1992), 7 O.R. (3d) 481 (C.A.) (
Sauvé
No. 1
), and
Belczowski v. Canada
, [1992] 2 F.C. 440
(C.A.).

[15]      The

Charter

charges courts with upholding and
maintaining an inclusive, participatory democratic framework within which
citizens can explore and pursue different conceptions of the good.  While
a posture of judicial deference to legislative decisions about social policy
may be appropriate in some cases, the legislation at issue does not fall into
this category.  To the contrary, it is precisely when legislative choices
threaten to undermine the foundations of the participatory democracy guaranteed
by the

Charter

that courts must be vigilant in fulfilling their
constitutional duty to protect the integrity of this system.  [Emphasis added.]

[80]

At trial and in this Court, the AGC took the position that the reasoning
in
Sauvé No. 2
did not apply to the case at bar.
Sauvé No. 2
,
he said, dealt with a deliberate disenfranchisement of prisoners designed to
enhance respect for the law and as a part of punishment.  It is almost opposite
to the situation in this case where the purpose of the legislation is not
symbolic, but designed to enhance the integrity of the vote.  The AGC
encouraged the trial judge to apply a less stringent test.  The appellants,
stressing that the essence of the breach was disenfranchisement, urged the
trial judge to decline to pay deference to Parliament at all stages of the
justification analysis.

[81]

An examination of the reasons for judgment reveals that the trial judge
carefully considered
Sauvé No. 2
and other cases which dealt with
voter disenfranchisement.  She also looked at cases which dealt with election
laws, such as
R. v. Bryan
, 2007 SCC 12, [2007] 1 S.C.R. 527 (legislation
prohibiting broadcasting election results before polling stations have closed)
and
Harper v. Canada (Attorney General),
2004 SCC 827, [2004] 1 S.C.R.
827 (legislation restricting third party election advertising), where the
courts paid deference to Parliament in applying the s. 1 test.  The trial
judge recognized that the last two cases were decided on the basis of s. 2(b)
of the
Charter
, freedom of expression, but nonetheless concluded:

[249]

I
do not believe that what the Supreme Court said in
Sauvé No. 2
has been displaced by a general requirement to defer to Parliament in all
challenges to electoral laws.  Assessing the constitutionality of schemes
for regulating electoral broadcasting, funding of political parties, access to
all-party debates, and the like entails reviewing multiple competing
considerations in an area where Parliament might bring to bear superior
expertise and capacity to make nuanced judgments.  On the other hand, the
constitutionality of provisions limiting the individual exercise of the franchise
 particularly qualification and disqualification from voting  is not such an
area.

[250]

The
legislation at issue in this case includes a provision explicitly limiting the
exercise of the franchise (s. 148.1(1)), but mainly consists in a detailed
scheme allowing for a number of different ways to establish identity and
residence when voting.  Thus, this challenge to the voter identification
requirements bears characteristics of both the issue in
Sauvé No. 2
and
the issue in
Harper
.  It is comparable to
Sauvé No. 2
in
that one provision in the legislation denies the ballot to persons who fail to
provide the required identification.  It is comparable to
Harper
in
that the other impugned provisions set up a detailed voter identification
scheme involving nuances and the balancing of competing logistical and
administrative considerations.

[251]

Bearing those general
considerations in mind, I turn to an assessment of the contextual factors
specified in
Thomson Newspapers
:  (a) the nature of the harm
and the inability to measure it; (b) the vulnerability of the group protected;
(c) subjective fears and apprehension of harm; and (d) the nature of the
infringed activity.

[82]

Turning to the arguments of the parties, Justice Smith said:

[252]

In
support of deference, Canadas position regarding the first factor [in
Thomson

Newspapers
] is that the harm in this case  voter fraud and error,
actual, potential, and perceived  is by its nature, and due to the secrecy of
the vote, very difficult to measure.  Turning to the second factor, Mr. Wruck
[counsel for the AGC] says that the group protected is legitimate voters, who
are vulnerable to feeling that their democratic voice is not being respected
and who must rely on government action to protect the integrity of the
vote.  He says with respect to the third factor that, as in
Bryan
,
public confidence in the electoral process is an objective of the impugned
provisions and that the subjective perceptions of Canadian voters that the
electoral system is fair is a vital element in the value of the system (at para. 25).
Finally, relating to the fourth factor, he characterizes the nature of the
infringed activity as the ability of a voter to cast a ballot without any
verification of the voters identity and residence.  He argues that
Parliament requires some deference to its arbitration between the democratic
values of accessibility and integrity in designing an electoral process that
reinforces the effective representation of all electors by making every
legitimate vote meaningful.

[253]

The
plaintiffs emphasize the fourth factor and the fact that it is a right at the
core of the s. 3 rights  the very ability to cast a ballot in an election
 that is infringed.

[254]

I
agree that the first and third factors indicate that some deference is
warranted.  I particularly note that it may be difficult to prove that the
publics faith in the integrity of the electoral system will be enhanced by the
voter identification provisions, or to prove that the voter identification
requirements are a superior deterrent to fraudulent or mistaken voting.
The fourth factor, the nature of the infringed activity (i.e., the exercise of
the franchise), weighs heavily on the other side of the scale.

[255]

The foundational
importance of the right to vote has already been discussed in these
Reasons.  The Court must exercise great care in determining whether the
state has justified denying the right to vote to those who would otherwise be
entitled to cast a ballot.
However, when assessing whether Parliament
has devised mechanisms for voting that maximize the opportunity for all
qualified electors to cast a ballot while maintaining the integrity of the
system, there must be a level of deference
.  [Emphasis added.]

[83]

To sum up, the trial judge held that a level of deference should be
accorded to Parliament in determining the apprehension and nature of the harm
it sought to address through the impugned legislation.  She observed that it is
difficult to prove the voter identification requirements were a superior deterrent
to fraudulent voting or that the measures taken would enhance the electoral
system.  Finally, she found that a level of deference was owed in assessing
whether the mechanisms chosen by Parliament maximized the opportunity for all
qualified electors to cast a ballot while maintaining the integrity of the
system.  In so doing, the trial judge attempted to forge a s. 1 analysis,
which might be more appropriate to the case before her, which she considered to
be more nuanced than
Sauvé No. 2
.

[84]

That said, I am of the view that it was not open to the trial judge to
formulate a new test which permits Parliament some level of deference.  This
conclusion seems unavoidable given what was said by the Supreme Court of Canada
in
Figueroa
.  As discussed earlier,
Figueroa
was a case, not
about the core right to put a ballot in the box, but one that fell under the
expanded definition of the right to vote. There, the majority clearly endorsed
the stringent approach.  Iacobucci J. said this at para. 60:

Before beginning [the s. 1]
analysis, I note this Courts prior conclusion that
limits on s. 3
require not deference, but careful examination
:
Sauvé [No.2]
,
supra
at para. 9.  As the Court observed in that case, s. 3 is
one of the
Charter
rights that cannot be overridden by the invocation of
s. 33 of the
Charter
. This highlights the extent to which s. 3
is fundamental to our system of democracy and indicates that great care must be
exercised in determining whether or not the government has justified a
violation of s. 3.  [Emphasis added.]

[85]

Paragraph 9 of
Sauvé

No. 2
is reproduced above at para. [72].
It clearly rejects deference in favour of careful examination, and logic and
common sense.

[86]

The appellants submit that the trial judge erred in determining that
some deference ought to be paid to Parliaments choices and that this error
along with the error in categorizing the breach echo throughout the entirety
of the trial judges s. 1 reasoning.  That said, they point only to one
place in the reasons for judgment where the trial judge refers to a deferential
test.  It is found in the section of her reasons dealing with minimal
impairment, to which I will now turn.

The Third Ground of Appeal

[87]

The appellants state their third ground of appeal as this:

c)         The learned trial judge erred
in law or in principle by misapplying the proportionality aspect of the
Oakes
test by finding that the impugned provisions are minimally impairing of the
right to vote.

[88]

The appellants submitted that the voter identification requirements were
not minimally impairing in that they did not include a failsafe provision
allowing 1) an elector without sufficient documentation to swear an oath
and vote, or 2) serial or multiple vouching by electors outside the polling
district.

[89]

The appellants submit that the trial judge erred when she accepted that
the tests to apply were set out in
RJR-MacDonald Inc. v. Canada (Attorney
General),
[1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1, and
Alberta v.
Hutterian Brethren of Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567.  The
appellants allege that it was an error to rely on statements of law on minimal
impairment from cases in the freedom of religion (
Hutterian Brethren
) or
freedom of expression contexts (
RJR-MacDonald
).  They say the trial
judge failed to consider s. 3 case law in her minimal impairment analysis.

[90]

The trial judge set out the tests at paras. 319 and 320:

[319]

In
RJR-MacDonald
,
the minimal impairment analysis was explained in these terms by McLachlin J.
(as she then was), at para. 160 (and quoted in
Hutterian Brethren
at
para. 54):

As the second step in the proportionality analysis, the
government must show that the measures at issue impair the right of free
expression as little as reasonably possible in order to achieve the legislative
objective.  The impairment must be minimal, that is, the law must be
carefully tailored so that rights are impaired no more than necessary.
The tailoring process seldom admits of perfection and the courts must accord
some leeway to the legislator.
If the law falls within a range of
reasonable alternatives, the courts will not find it overbroad merely because
they can conceive of an alternative which might better tailor objective to
infringement
. ... On the other hand, if the government fails to explain why
a significantly less intrusive and equally effective measure was not chosen,
the law may fail.  [Citations omitted; emphasis added.]

[320]

Chief
Justice McLachlin discussed minimal impairment further in
Hutterian Brethren
.
After quoting the above passage from
RJR-MacDonald
, she continued,
at paras. 54-55:

... In this manner, the legislative goal, which has been
found to be pressing and substantial, grounds the minimum impairment
analysis.  As Aharon Barak, former President of the Supreme Court of
Israel, puts it, the rational connection test and the least harmful measure
[minimum impairment] test are essentially determined against the background of
the proper objective, and are derived from the need to realize it: Proportional
Effect: The Israeli Experience (2007), 57
U.T.L.J.
369, at p. 374.
President Barak describes this as the internal limitation in the minimum
impairment test, which prevents it [standing alone] from granting protection
to human rights (p. 373).  The internal limitation arises from the fact
that the minimum impairment test requires only that the government choose the
least drastic means
of achieving its objective
.  Less drastic
means which do not actually achieve the governments objective are not
considered at this stage.

I hasten to add that in considering whether the governments
objective could be achieved by other less drastic means, the court need not be
satisfied that the alternative would satisfy the objective to
exactly
the
same extent or degree as the impugned measure.  In other words, the court
should not accept an unrealistically exacting or precise formulation of the
governments objective which would effectively immunize the law from scrutiny
at the minimal impairment stage.  The requirement for an equally
effective alternative measure in the passage from
RJR-MacDonald
,
quoted above, should not be taken to an impractical extreme.  It includes
alternative measures that give sufficient protection, in all the circumstances,
to the governments goal:
Charkaoui v. Canada (Citizenship and
Immigration)
, 2007 SCC 9, [2007] 1 S.C.R. 350.  While the government
is entitled to deference in formulating its objective, that deference is not
blind or absolute.  The test at the minimum impairment stage is whether
there is an alternative, less drastic means of achieving the objective in a
real and substantial manner.

[91]

Having stated the test the trial judge thoroughly examined the
evidence.  She then said this at paras. 367-369:

[367]    The question at this stage is whether Canada has
established that there are no alternative, less drastic means of achieving both
of Canadas legislative objectives in a real and substantial manner.

[368]

The
plaintiffs submit that a failsafe provision of the nature they suggest
(allowing an elector who arrives without the requisite documentation, and
without another elector to vouch for him/her, to vote upon swearing a statutory
declaration) is a less impairing but equally effective means of achieving the
purposes of the legislation.  I am not convinced that they are
correct.  The objectives of preventing fraud and enhancing confidence in
the election system would not be as well met by a system with the suggested
provision because such a provision would not prevent personation nearly as
effectively.

As well, I do not think that a scheme that permitted
serial or multiple vouching, or vouching by persons from outside the polling
district, would meet the objectives of preventing fraud and enhancing
confidence in the election system as well as the more restrictive provisions
for vouching that are now in effect.

[369]

No doubt the list of
documents authorized by the CEO could be further expanded or the vouching
provisions could be made more flexible without completely destroying the
effectiveness of the scheme, but the question is whether the scheme falls
within a range of reasonable alternatives.  As was stated in
RJR-MacDonald
,
while the law must be carefully tailored so that the rights are impaired no
more than necessary, the tailoring process seldom admits of perfection and the
courts must accord some leeway to the legislator.
Looking at the
scheme as a whole, taking into account the broad range of options available for
proof of identity and residence, and the delegation to the CEO of the ability
to continue to fine-tune and expand that range of options, I am satisfied that
there are no alternative, less drastic means of achieving both of Canadas
legislative objectives in a real and substantial manner.
I conclude,
therefore, that Canada has established that the provisions are minimally
impairing.  [Emphasis added.]

[92]

Although the trial judge stated the test in the words of
RJR-MacDonald
,
that is, whether the scheme fell within a range of reasonable alternatives
she went on to find that no range of reasonable alternatives existed.  Justice
Smith looked at the reasonable alternatives proffered by the appellants and
rejected them as unworkable.  She did so because she found that in both
alternatives suggested by the appellants, particularly in the case of a bare
oath, there is a meaningless paper trail that cannot be used to detect or
punish fraud.

[93]

I agree with the conclusion of the trial judge.  On the evidence, there
were no alternative, less drastic means of achieving the legislative goals in a
real and substantial manner.   It was not necessary for her to defer to
Parliament.  In the result, I would not accede to this ground of appeal.

The Fourth Ground of
Appeal

[94]

The appellants state their final ground of appeal as this:

d)         The learned trial judge erred
in law or in principle by finding that the salutary effects of the impugned
provisions outweigh their deleterious effects.

[95]

In this part of their argument, the appellants take issue with the trial
judges findings but they do not identify specific legal errors.

[96]

The appellants submit that the trial judge overemphasized the salutary
effects of the legislation and failed to characterize the deleterious effects
as serious.  The appellants assert three factual errors.

[97]

First, the appellants take issue with the findings of the trial judge
that the new provisions make it more difficult to perpetrate electoral fraud
and less likely errors will occur.  In their factum they say that they do not
accept that personation was a significant or demonstrated problem.  However,
that it was a
significant
problem was never in issue.  The trial judge
reasoned, on the basis of ample evidence that it was a
demonstrated
problem, though a rare one.  On this point the trial judge took the view that
while Canada has a clean voting system and that personation and error are rare,
these problems do occur from time to time (para. 400).  She noted too,
that electoral fraud has an unknown quality to it given the secret nature of
the ballot.  She might also have concluded that the evidence demonstrated that
if anyone was minded to commit voter fraud, it would be relatively easy to do.

[98]

In the end, Justice Smith concluded that a move from the honour system
to an identity system would serve to make rare events of fraud and error rarer
(para. 402).  The appellants submit that this conclusion is illogical and
palpably erroneous because the pre-amendment procedures protected against fraud.
This argument cannot be sustained.  It fails to meet the plain logic argument that
moving from an honour system to an identity system will
better
protect
against fraud.

[99]

Next, the appellants took issue with the trial judges finding that the
legislation would enhance voter confidence in the system for those concerned about
voter fraud.  They submitted that not only did the AGC fail to introduce evidence
regarding public perceptions of abuse of the electoral system, but that it was
erroneous and circular for the trial judge to say that the fact that Members of
Parliament supported the legislation indicated that there was public concern.
The appellants argued that the mere fact that Parliament passed the impugned
legislation cannot stand on the asset side of the ledger.  As the appellants
put it:  The entire rationale for the
Charter
is upended if we accept
popular support or legislative will as evincing a salutary effect.

[100]

In my view this misses the point.  As I commented earlier, it is logical
that a move from the honour system to an identity system would serve to make
rare events of fraud and error rarer.   It is self-evident that increasing the
safeguards against the potential for fraud would enhance voter confidence in
the electoral system.  The electoral regime is a foundational aspect of Canada
s democratic process.  As Rothstein and Moldaver JJ.A. noted recently in
Opitz
v. Wrzesnewskyj
, 2012 SCC 55 at para. 38:

Fair and consistent observance of
the statutory safeguards [of the
Canada Elections Act
] serves to enhance
the publics faith and confidence in fair elections and in the government
itself, both of which are essential to an effective democracy.

[101]

Finally,
the appellants submit that the modest salutary effects of the legislation could
not outweigh the deleterious effects of the legislation.

[102]

There was
some evidence before the trial judge that suggested that in rural ridings with
higher Aboriginal populations, voters were more concerned about their ability
to comply with the new procedures.  However, the trial judge also found that it
was well-founded in the evidence that Elections Canada undertakes campaigns to
inform voters and actively expands the list of acceptable identification.  In
the end, she found the deleterious effects of the legislation to be very modest
with true cases of disenfranchisement likely to be extremely rare (para. 480).

[103]

Thus the analysis came down to a decrease in a rare problem versus the
very small possibility that a voter, likely from a disadvantaged group, will
not be able to vote.  I cannot say that the trial judge was wrong in failing to
find that the deleterious effects of very rare disenfranchisement outweighed
the salutary effects of the legislation.  The appellants have not been able to
reasonably attack the final conclusion of the trial judge where she said at para. 481:

The [appellants] submit that
precluding even one voter from casting a ballot would be a significant
deleterious effect.  Indeed, that would be a deleterious effect, as would be
the creation of inconvenience that discourages voters from coming to the
polls.  In an ideal world, no elector would ever be inconvenienced or precluded
from voting by any aspect of the electoral system.  However, that is not the
constitutional requirement.  Just as it cannot be constitutionally required for
an individual polling station to be set up for each individual voter, a system
of voter identification need not be such that not one person is ever inconvenienced
or precluded from voting by its requirements.  The state has a positive
obligation to create an electoral system that is sensitive to the needs of all
electors and that maximizes access in every way possible, but a standard of
absolutely perfect access cannot be imposed.

[104]

It follows
that I would not accede to this ground of appeal.

The Arguments of the
other Parties

[105]

The Chief
Electoral Officer of Canada is a respondent to this litigation.  I have not
referred to his factum as it contained only helpful background material and
urged the Court to delay the effect of an order setting aside the legislation
should one have been made.

[106]

The
British Columbia Civil Liberties Association is an intervenor in this appeal.
The intervenor confined its submissions to the proportionate effects stage of
the s. 1
Oakes
test.  It made arguments about the nature of the
evidence that ought to have been put forward by the AGC, submitted the public
support for an impugned measure could only in the rarest of cases provide a
basis for showing the salutary effects of a measure, and, that where the
affected rights-holder is a member of a vulnerable group he or she should be
entitled to a relaxed evidentiary standard in demonstrating the deleterious
effects of an impugned measure.

[107]

I have not
found it necessary to address these arguments in my reasons.  I believe my
reasons make it clear that the evidence put forward by the AGC was sufficient,
that the argument about public support for an impugned measure missed the mark
in this case, and that the disadvantaged group was able to prove facts without
the need of a relaxed standard.

Conclusion

[108]

I would dismiss the appeal.

The
Honourable Madam Justice Ryan

I AGREE:

The Honourable Madam Justice D.
Smith

I AGREE:

The Honourable Mr. Justice
Hinkson

Appendix A

*143
(1)  Each elector, on arriving at the polling station,
shall give his or her name and address to the deputy returning officer and the
poll clerk, and, on request, to a candidate or his or her representative.

(2) If the poll clerk determines that the electors name and
address appear on the list of electors or that the elector is allowed to vote
under section 146, 147, 148 or 149, then, subject to subsection (3), the
elector shall provide to the deputy returning officer and the poll clerk the following
proof of his or her identity and residence:

(a) one piece of identification issued by a Canadian
government, whether federal, provincial or local, or an agency of that
government, that contains a photograph of the elector and his or her name and address;
or

(
b
) two pieces of identification authorized by the
Chief Electoral Officer each of which establish the electors name and at least
one of which establishes the electors address.

(2.1) For greater certainty, the Chief Electoral Officer may
authorize as a piece of identification for the purposes of paragraph (2)(b) any
document, regardless of who issued it.

(2.2) For the purposes of paragraph (2)(
b
), a document
issued by the Government of Canada that certifies that a person is registered
as an Indian under the
Indian Act
constitutes an authorized piece of identification.

(3) An elector may instead prove his or her identity and
residence by taking the prescribed oath if he or she is accompanied by an
elector whose name appears on the list of electors for the same polling
division and who

(a) provides to the deputy returning officer and the poll
clerk the piece or pieces of identification referred to in paragraph (2)(a) or
(b), respectively; and

(b) vouches for him or her on oath in the prescribed form.

(3.1) If the address contained in the piece or pieces of
identification provided under subsection (2) or paragraph (3)(a) does not prove
the electors residence but is consistent with information related to the
elector that appears on the list of electors, the electors residence is deemed
to have been proven.

(3.2) Despite subsection (3.1), a deputy returning officer,
poll clerk, candidate or candidates representative who has reasonable doubts
concerning the residence of an elector referred to in that subsection may
request that the elector take the prescribed oath, in which case his or her
residence is deemed to have been proven only if he or she takes that oath.

(4) If the deputy returning officer is satisfied that an
electors identity and residence have been proven in accordance with subsection
(2) or (3), the electors name shall be crossed off the list and, subject to
section 144, the elector shall be immediately allowed to vote.

(5) No elector shall vouch for more than one elector at an
election.

(6) An elector who has been vouched for at an election may
not vouch for another elector at that election.

(7) The Chief Electoral Officer shall publish each year, and
within three days after the issue of a writ, in a manner that he or she
considers appropriate, a notice setting out the types of identification that
are authorized for the purpose of paragraph (2)(b). The first annual notice
shall be published no later than six months after the coming into force of this
subsection.

148.1
(1) An elector who fails to prove his or her identity
and residence in accordance with subsection 143(2) or (3) or to take an oath
otherwise required by this Act shall not receive a ballot or be allowed to
vote.

(2) If an elector refuses to take an oath because he or she
is not required to do so under this Act, the elector may appeal to the
returning officer. If, after consultation with the deputy returning officer or
the poll clerk of the polling station, the returning officer decides that the
elector is not required to take the oath, and if the elector is entitled to
vote in the polling division, the returning officer shall direct that he or she
be allowed to do so.

161.(1) An elector
whose name is not on the list of electors may register in person on polling day
if the elector

(
a
) provides as proof of his or her identity and residence the
piece or pieces of identification referred to in paragraph 143(2)(
a
) or (
b
), respectively, which
piece or one of which pieces must contain an address that proves his or her
residence; or

(
b
) proves his or her identity and residence by taking the
prescribed oath, and is accompanied by an elector whose name appears on the
list of electors for the same polling division and who

§

(i)  provides
the piece or pieces of identification referred to in paragraph 143(2)(
a
) or (
b
), respectively, which
piece or one of which pieces must contain either an address that proves his or
her residence or an address that is consistent with information related to him
or her that appears on the list of electors, and

§

(ii) vouches for him
or her on oath in the prescribed form, which form must include a statement as
to the residence of both electors.

...

(6) No elector shall vouch for more than one elector at an
election.

(7) An elector who has been vouched for at an election may
not vouch for another elector at that election.

*169.(1) Every
elector whose name is not on the revised list of electors may register in
person before the deputy returning officer in the advance polling station where
the elector is entitled to vote.

(2) An elector shall not be registered unless he or she

(
a
) provides as proof of his or her identity and residence the
piece or pieces of identification referred to in paragraph 143(2)(
a
) or (
b
), respectively, which
piece or one of which pieces must contain an address that proves his or her
residence; or

(
b
) proves his or her identity and residence by taking the
prescribed oath, and is accompanied by an elector whose name appears on the
list of electors for the same polling division and who

(i)  provides the piece or pieces of identification
referred to in paragraph 143(2)(
a
) or (
b
), respectively, which piece or one of which pieces must contain
either an address that proves his or her residence or an address that is
consistent with information related to him or her that appears on the list of
electors, and

(ii) vouches for him or her on oath in the prescribed form,
which form must include a statement as to the residence of both electors.

* The sections denoted by an asterisk are not in issue,
but are included here for contextual clarity.

[1]
The Office of the Chief Electoral Officer of Canada is an
independent, non-partisan body set up to support the Chief Electoral Officer of
Canada (the CEO) who is appointed under s. 16 of the
Canada Elections Act

by resolution of the House of
Commons to hold office during good behaviour.

[2]

This information includes an elector
s
Postal Code.

[3]

Dixon v. British Columbia
, [1989] B.C.J. No. 583 at
p. 6-7;
Haig v. Canada (Chief Electoral Officer)
, [1993] 2 S.C.R.
995 at p. 45-46;
Reference Re: Provincial Electoral Boundaries (Sask.)
,
[1991] 2 S.C.R. 158 at paras. 50 and 55; and
Harvey v. New Brunswick
(Attorney General)
, [1996] 2 S.C.R. 876 at para. 37.