The Right to Vote in Canada: Potential Constitutional Challenges to E-Voting

Source: Elections Canada

As guaranteed by s. 3 of the Charter, every Canadian citizen has the right to vote. This right, which is integral to a legitimate democracy, encompasses not just the physical act of voting. McLachlin, CJBCSC, as she then was, held, “More is intended [in the right to vote] than the bare right to place a ballot in a box”.¹ The language of s. 3 and its exemption from the s. 33 override has resulted in the Supreme Court of Canada holding that the right is to be given a broad an purposive interpretation.² Surely, included in the s. 3 right to vote is the right to have that vote counted accurately.

The experience in the US has quite clearly shown that there is a great deal of scepticism surrounding how accurately machines are able to count votes, and even if they are able to count properly, questions have been raised about the security of the machines from a malicious outside source that could program the machine to count incorrectly. As mentioned above, given the current electoral system in Canada, any new system will likely be held to a very high standard. One area where electronic voting methods are lacking is the ability to effectively scrutinize the count. When poll workers manually count paper ballots, scrutineers can quite easily observe how the workers are counting and provide a degree of transparency that is not possible in an e-voting system unless scrutineers are trained to analyze the source code of the machines.

In Figueroa, the Supreme Court held that the purpose of the right to vote is to “promote and protect the right of each citizen to play a meaningful role in the political life of the country”.³ Based on the citations above, it is reasonable to believe that it is important that citizens also perceive that they are playing a meaningful role. Electronic voting raises many concerns among the electorate in spite of its benefits and present the risk that voters will lose confidence in the electoral process if they do not believe they are able to play a meaningful role.

It is the participation of the electorate that gives the government its legitimacy. “In a democracy such as ours, the power of lawmakers flows from the voting citizens, and lawmakers act as the citizens’ proxies. This delegation from voters to legislators gives the law its legitimacy or force.”⁴ This legitimacy can only be conveyed if the electorate is truly participating in a democratic election and believe they are doing so. “In our system of democracy, this means that each citizen must have a genuine opportunity to take part in the governance of the country through participation in the selection of elected representatives."⁵ If the electorate does not believe their role is meaningful, they will not be inclined to participate in the electoral system, and the legitimacy of the government may be called into question. The legitimacy of our democracy depends on the power residing in the electorate. This power is lost if voters have the perception that the power rests not with them, but rather with a machine, its developers, or hackers.

In Figueroa, Iacobucci highlights the importance of s. 3 as a participatory right:

the rights of s. 3 are participatory in nature. […] This signifies that the right of each citizen to participate in the political life of the country is one that is of fundamental importance in a free and democratic society and suggests that s. 3 should be interpreted in a manner that ensures that this right of participation embraces a content commensurate with the importance of individual participation in the selection of elected representatives in a free and democratic society.⁶

A democracy that is not truly participatory (or is, at least, not perceived as truly participatory) will surely have its legitimacy called into question. This is foreseeable in Canada given that any change to the electoral system will be a change to a system that is attained a high level of legitimacy and is not frequently challenged.

¹ Dixon v. British Columbia (Attorney General), [1989] 4 WWR 393 per McLachlin CJBCSC at p. 403.
² Sauvé v. Canada (Chief Electoral Officer), [2002] 3 SCR 519 [Sauvé] per McLachlin CJ at para. 11.
³ Figueroa v. Canada (Attorney General), [2003] 1 SCR 912 [Figueroa] per Iacobucci J. para. 30.
⁴ Sauvé, supra. at para. 31.
⁵ Figueroa, supra. at para. 30.
⁶ Figueroa, supra. at para. 25-26.