1 [1993]2S.C.R. 438.

2 Canada Elections Act, R.S.C. 1985, c. E–2, s. 51(e). Section 3 of the Charter declares that “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.”

3 418 U.S. 24 (1974).

4 The full text of section 2 is as follows: “Representatives shall be appointed among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial Officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

5 Compare, for example, the literature on abortion. See Glendon, Mary Ann, Abortion and Divorce in Western Law (Cambridge, MA: Harvard University Press, 1987)Google Scholar; Hoff, Joan, “Comparative Analysis of Abortion in Ireland, Poland, and the United States,” Women's Studies International Forum 17 (1994): 621–46CrossRefGoogle Scholar; Peterson, Kerry Anne, “Abortion Laws: Comparative and Feminist Perspectives in Australia, England, and the United States,” Medical Law International 2 (1996): 77–105CrossRefGoogle Scholar; Glendon, Mary Ann, “A Beau Mentir Qui Vient de Loin: The 1988 Canadian Abortion Decision in Comparative Perspective,” Northwestern University Law Review 83 (1989): 569–91Google ScholarPubMed; Kommers, Donald P., “Liberty and Community in Constitutional Law: The Abortion Cases in Comparative Perspective,” Brigham Young University Law Review (1985): 371–409.Google Scholar

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7 Manfredi, Christopher P., “The Judicialization of Politics: Rights and Public Policy in Canada and the United States,” in Degrees of Freedom: Canada and the United States in a Changing World, ed. Banting, Keith, Hoberg, George, and Simeon, Richard (Montreal: McGill-Queen's University Press, 1997), pp. 310–40.Google Scholar

8 See Vallinder, Torbjorn, “The Judicialization of Politics—A World-wide Phenomenon: Introduction,” International Political Science Review 15 (1994): 91–99CrossRefGoogle Scholar; Shapiro, Martin and Stone, Alec, “The New Constitutional Politics of Europe,” Comparative Political Studies 26 (1994): 393–420.CrossRefGoogle Scholar

9 Ramirez v. Brown, 507 P.2d 1345, 1357 (Calif. Sup. Ct. 1973).

10 Ramsey, Murphy v., 114 U.S. 15 (1885)Google Scholar; Beason, Davis v., 133 U.S. 333 (1890).Google Scholar

11 418 U.S. 24, 54–55 (1974).

12 ibid., pp. 56–86.

13 Tribe, Laurence, American Constitutional Law (Mineola, NY: Foundation Press, 1978), pp. 771–72.Google Scholar A similar criticism can be found in Shapiro, , “Mr. Justice Rehnquist: A Preliminary View,” Harvard Law Review 90 (1976): 303CrossRefGoogle Scholar. The Eighth Amendment has also been invoked against the practice. See Note,“Disenfranchisement of Ex-Felons: A Re-Assessment,” Stanford Law Review 25 (1973): 845.CrossRefGoogle Scholar

14 Note, “The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and the ‘Purity of the Ballot Box’,” Harvard Law Review 102 (1989): 1300–17.CrossRefGoogle Scholar

15 ibid., p. 1301.

16 One exception to this characterization of these restrictions was the British Columbia Elections Act, which applied broadly to “persons serving their sentences.” Consequently, probationers and parolees not in prison were disenfranchised. See Knopff, Rainer and Morton, F.L., Charter Politics (Toronto: Nelson, 1992), p. 293.Google Scholar

17 At the time of these challenges, the Act excluded from participation in national elections “every person undergoing punishment as an inmate in any penal institution for the commission of any offence.” Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 14(4)(e).

18 Canada, Badger v. (1988), 55 Man. R. (2d) 211 (Man. Q.B.)Google Scholar; Canada, Belczowski v., [1991] 3 EC. 151 (F.C.T.D).Google Scholar

19 Canada, Sauvé v. A.-G. (1988), 66 O.R. (2d) 234 (Ont. H.C.J.).Google Scholar

20 Canada, Badger v. (1988), 55 Man. R. (2d) 198, 204–205 (Man. C.A.).Google Scholar

21 Canada, Belczowski v. [1992] 2 EC. 440 (F.C.A).Google ScholarCanada, Sauvé v. (Attorney General) (1992), 7 O.R. (3d) 481 (Ont. C.A.)Google Scholar

22 A note on the Canadian court structure is perhaps in order here. The Supreme Court of Canada is the general and final court of appeal for all laws and jurisdictions in Canada. The Federal Court of Canada, with both trial and appellate divisions, has original and initial appellate jurisdiction only over matters governed by “existing and applicable federal law.” This jurisdiction includes the power to review the decisions of federal agencies and officials (e.g. the Chief Electoral Officer of Canada). The provincial courts of superior jurisdiction, which includes provincial courts of appeal, also have jurisdiction over federal laws. For a complete analysis of Canada's court system, see Hogg, Peter W., Constitutional Law of Canada (3d ed.Toronto: Carswell, 1992), pp. 161–200.Google Scholar

23 Canada Elections Act, R.S.C. 1985, c. E–2, s. 51 (e), as amended by S.C. 1993, c. 19, s. 23. In effect, this meant that only inmates of federal penitentiaries would be affected by the voting restriction, since sentences of less than two years are served in provincial prisons and/or jails.

24 Sauvé v. Chief Electoral Officer of Canada et al.; McCorrister et al. v.Attorney General of Canada (1995), 132 D.L.R. (4th) 136 (F.C.T.D). Hereafter cited as Sauvé/McCorrister.

25 Although an equality rights argument had been raised (and rejected) in Belczowski ([1991] 3 F.C. 152,162), the arguments presented in Sauvé/McCorrister were far more systematic and sophisticated.

26 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard, 1980), p. 1.Google Scholar

27 Bork, Robert H., The Tempting of America: The Political Seduction of the Law (New York: Simon and Schuster, 1990), pp. 143–60.Google Scholar

28 Miller, Arthur Selwyn, Toward Increased judicial Activism (Westport, CT: Greenwood Press, 1982)Google Scholar; Perry, Michael J., The Constitution, The Courts, and Human Rights (New Haven: Yale University Press, 1982)Google Scholar. One might argue that the Canadian decisions are, in fact, examples of interpretivism, since the constitutional text unequivocally grants citizens the right to vote and convicted persons are not stripped of their citizenship. The flaw in this argument is that, while s.3 of the Charter appears unequivocal, voting rights are subject to the “reasonable limits” clause. A truly interpretivist approach to s.3, therefore, would accept as “reasonable” all limits that pre—dated the Charter (i.e., that existed prior to 1982). The Canadian decisions are noninterpretivist not because of any novel meaning attached to the concepts of “citizenship” or “right to vote,” but because of the meaning attached to the concept of “reasonable limit.”.

29 Ely, , Democracy and Distrust, pp. 11–41, 92,102.Google Scholar

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31 Perry, , The Constitution, The Courts and Human Rights, pp. 101–102, 112– 13,115.Google Scholar

32 In this sense, Ely's “representation-reinforcing” approach to judicial review might be characterized as interpretivist. It has more in common with noninterpretivism, however, because of the extent to which it allows judges to create novel process-oriented rules unanticipated by the constitutional text.

33 Perry, , The Constitution, The Courts and Human Rights, pp. 103–107Google Scholar. The legal positivist charge against interpretivism comes from political conservatives as much as from political liberals. See Jaffa, Harry V., “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” University of Puget Sound Law Review 10 (1987): 343–448Google Scholar, and Arkes, Hadley, Beyond the Constitution (Princeton, NJ: Princeton University Press, 1990), pp. 14–18.Google Scholar

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35 Reference re s. 94(2) of the British Columbia Motor Vehicle Act (1985), 24 D.L.R. (4th) 536, 554.Google Scholar

36 The failure of the Equal Rights Amendment provides a good example of this dynamic of constitutional reform. See Manfredi, Christopher P., “Institutional Design and the Politics of Constitutional Modification: Understanding Amendment Failure in the United States and Canada,” Law & Society Review 31 (1997): 117–22.CrossRefGoogle Scholar

37 Perry, , The Constitution, The Courts, and Human Rights, pp. 112–13.Google Scholar

38 This language is borrowed, of course, from The Federalist Papers. SeeHamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961), No. 1, p. 33.CrossRefGoogle Scholar

39 Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984), pp. 112–16.Google Scholar

40 The Federalist Papers, No. 51, 322, 321; No. 10, p. 8.

41 See Lerner, Ralph, “The Supreme Court as Republican Schoolmaster,” in The Supreme Court Review, ed. Kurland, Philip (Chicago: University of Chicago Press, 1967), pp. 127–80Google Scholar; Rossum, Ralph A., “The Supreme Court as Republican Schoolmaster: Freedom of Speech, Political Equality, and the Teaching of Political Responsibility,” in Taking the Constitution Seriously: Essays on the Constitution and Constitutional Law, ed. McDowell, Gary (Dubuque, IA: Kendall/Hunt, 1981), pp. 125–38Google Scholar; Franklin, Charles H. and Kosaki, Liane C., “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion,” American Political Science Review 83 (1989): 751–71.CrossRefGoogle ScholarPubMed

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43 For a survey, see Kymlicka, Will and Norman, Wayne, “Return of the Citizen: A Survey of Recent Work on Citizenship Theory,” Ethics 104 (1994): 360–69.CrossRefGoogle Scholar

44 Reference re Provincial Electoral Boundaries (1991), 81 D.L.R. (4th) 16,35 (S.C.C.).

45 See Note 28, above.

46 The Supreme Court of Canada laid out the framework for this analysis in Oakes, R. v. (1986), 26 D.L.R. (4th) 200, 227–28.Google Scholar

47 132 D.L.R. (4th) 136,176 (F.C.T.D).

48 [1992] F.C. 440, 457 (F.C.A).

49 132 D.L.R. (4th) 136,174 (F.C.T.D)..

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52 This is how the Federal Court of Appeal characterized the “true objective” of criminal disenfranchisement. See Canada, Belczowski v., [1992] 2 EC. 440, 459.Google Scholar

53 For an early discussion of these issues in the Canadian case, see Planinc, Zdravko, “Should Imprisoned Criminals Have a Constitutional Right to Vote,” Canadian Journal of Law and Society 2 (1987): 153–64.CrossRefGoogle Scholar

54 Mill, John Stuart, Considerations on Representative Government (London: Longmans, Green and Co., 1926 [1861]), pp. 67–68Google Scholar; Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp. 222–23.Google Scholar

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56 The others are ss. 6(1) (mobility rights) and 23 (minority language education rights).

57 Goodwin-Gill, Guy S., Free and Fair Elections: International Law and Practice (Geneva: Inter-Parliamentary Union, 1994), pp. 42–46.Google Scholar

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60 Bickel, Alexander, The Morality of Consent (New Haven: Yale University Press, 1975), p. 46.Google Scholar

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63 Aristotle, Politics 1279a15; 1277al.Google Scholar

64 ibid., 1278al-a20.

65 The most famous articulation of this point is by James Madison in Federalist, No. 51. “If men were angels,” Madison argued, “no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Madison, , The Federalist Papers, No. 51, p. 322).Google Scholar

66 ibid., No. 57, p. 350.

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69 ibid., p. 336.

70 Tocqueville, , Democracy in America, 1: 208.Google Scholar

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79 For the United States, see Wilbanks, William, The Myth of a Racist Criminal Justice System (Monterey, CA: Brooks/Cole, 1987).Google Scholar For Canada, see LaPrairie, Carol,“The Role of Sentencing in the Over-Representation of Aboriginal People in Correctional Institutions,” Canadian Journal of Criminology 32 (1990): 429–40Google Scholar and Moyer, Sharon, “Race, Gender, and Homicide: Comparisons Between Aboriginals and Other Canadians,” Canadian Journal of Criminology 34 (1992): 387–402.Google ScholarThe Report of the Aboriginal Justice Inquiry of Manitoba pointed out that “some of the Aboriginal over-representation [among inmates] is simply a reflection of the different age structure in their population.” The Manitoba inquiry also discovered that crime and victimization rates are much higher for Indian bands than for the general Canadian population. For example, the crime rate for Indian bands is almost twice as high as the national crime rate (165.6/1000 vs. 92.7/1000), and the violent crime rate is almost four times as high (33.1/1000 vs. 9.0/1000). Report of the Aboriginal Justice Inquiry of Manitoba, Volume I: The Justice System and Aboriginal People (1991), pp. 87, 93.

80 Goodwin-Gill, , Free and Fair Elections, pp. 45Google Scholar,44 n.84. The statement of this principle can be found in Germany, X.v., Application 2728/66, p. 38 (E.C.H.R. 10 6,1967)Google Scholar; Germany, X.v., Application 4984/71, p. 28 (E.C.H.R. 10 5, 1972).Google Scholar

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90 Between 1989 and 1994, the average commitment rate was 2.3 per 10,000 adults. Statistics Canada, Adult Correctional Services, 1993–1994 (Ottawa: Supply and Services, 1994), Table 41, p. 90.Google Scholar