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Apr 7, 2021
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Hand-Putting-Voting-Ballot-in-Ballot-Box-SilhouetteThe degree to which Canadian voting rights are currently inclusive is the product of centuries of work of individuals and collectives who recognized that voting rights are a cornerstone to participation in society and that equal access and inclusion in voting are a cornerstone to true democracy. Civil and human rights battles have been fought on many fronts in Canada involving collective action and mobilization for legislative change and actual access to voting rights.

Early Canadian voting entitlements reflected power imbalances inherent in settler colonialism. For the most part, who could vote depended on their status as a British subject and their status as having ownership of property that could be taxed. The colonialist privileging of the rights of some and the exclusion of others survived Canada’s becoming a self-governing colony in 1867 and stretched far beyond this, even extending beyond our 1982 constitutional requirement that all citizens be able to vote.

For periods of time in early Canadian history, voting in maritime jurisdictions required oaths of loyalty which were Christian-based but also renounced papal authority, effectively excluding various groups (eg. Catholics, Jewish people, non-Christians more generally and Quakers (whose faith prevented them from taking oaths)). Many of these extended until the late 1700s or early 1800s.

The extensive work of abolitionist activists in Canada and internationally and the bravery of self-emancipators opened the way for the legal establishment of voting rights for some Black Canadians by the late 1700s and early 1800s. Although Black people had lived in Canada since as early as the 1600s, they had no voting rights for as long as they were considered slaves: the slavery laws that oppressed Black people did not recognize them as people and considered them a form of property. The decades-long work of abolitionists around the globe and in Canada led to the Act to Limit Slavery in Upper Canada in 1793 which put initial limits on enslavement and then the Slavery Abolition Act in 1834 which made slavery unlawful in British colonies, including Canada. Once considered British subjects, some Black Canadians became entitled to voting rights.

Even then, the requirement that voters be owners of taxable property effectively excluded poorer Black Canadians and Black women. Beyond legislative restrictions, Black Canadians who lawfully did have voting rights still had to fight for equal access to exercise those rights as anti-Black racist practices and barriers often interfered with Black voters trying to exercise their voting rights. A vivid example of this unfolded in 1838 in Colchester, Ontario. It has been reported that a third of the town’s population was Black when an election was set for town and parish positions. Black voters turned up to vote and were physically blocked by white men from accessing the polls. Black voters turned to legal action in the Colchester case to obtain a court order to enforce their already-secured voting rights.

The work of the people in Canada’s suffrage movement was critical to voting rights for women. Women who were naturalized rarely held taxable property, but there were some early instances of property-holding women voting in elections in the early 1800s. However, the British North America Act 1867 expressly restricted voting rights to male subjects with property. Women in jurisdictions across Canada fought for suffrage. One early Canadian example is Mary Ann Shadd Cary (photographed above, left), who used her newspaper, The Provincial Freeman, to promote discussions on women’s rights, to publicize suffrage meetings and to mobilize the suffrage movement generally. The work of western Canadian suffragists led to Manitoba becoming the first provincial jurisdiction where women could vote in 1916. In 1917, some women obtained voting rights federally either because of their role in the military effort or because of their married status to their spouses in the military. However, it was not until 1918 that the work of suffrage activists finally paid off with the vote extending to women over 21 but this did not mean that all women could vote.

Still more work was needed. Property-owning preconditions to voting continued. Canadian labour activists were active early in the fight to have the property-holding preconditions on voting eliminated so that people other than the propertied class would be part of any democratic process. This finally occurred federally in 1920.

Still, fight for inclusion was needed. Persons prevented from voting on the basis of race were not allowed to vote federally as well. In British Columbia, there were laws which denied the vote to Chinese, Japanese and South Asian immigrants and, therefore, they were barred from voting rights in the federal sector as well. In Saskatchewan, legislation barred Chinese immigrants from voting. Although many Asian immigrants fought in Canadian military forces or were part of military efforts in Canada in both the First and Second World Wars, they were denied voting rights. As a result of the efforts of people like Tomekichi Homma, the Japanese Canadian Citizens League, Dr. Durai Pal Pandia and the Khalsa Diwan Society and their allies, British Columbia’s race restrictions to voting rights were finally removed by 1949. 

Apart from provincially-based race restrictions to voting rights, the 1923 federal Chinese Immigration Act, which is also known as the Chinese Exclusion Act, expressly targeted people of Chinese ethnicity from voting rights. Again, although many Chinese people fought in Canadian military forces, they were denied voting rights. Through the work of people like Won Alexander Cumyow (photographed above, right) and prominent Chinese Canadians and allies, and the Chinese Associate of Canada, the federal Chinese Exclusion Act, which was contrary to the United Nations Charter of Human Rights Canada signed at the conclusion of the Second World War, was finally repealed by 1948.

It would still be another two years before Inuit people would have the right to vote; though, even then, it was a right without much meaning until ballot boxes were actually placed in Inuit communities years later. It was only in 1960 that voting rights were effectively extended to First Nations: until then, voting rights were only extended to First Nation people if they would surrender their “Indian” status and treaty rights.

In 1982, when Canada gained constitutional independence, the Canadian Charter of Rights and Freedoms expressly accorded every citizen of Canada the right to vote in federal and provincial elections. Future further efforts to restrict the right to vote were subject to this, the equality and other provisions of the Charter. 

Efforts to restrict voting rights on the basis of mental disability were successfully challenged in 1988 through the efforts of disability rights advocates, particularly the Council of Canadians with Disabilities.

Laws against incarcerated Canadians voting persisted. This law had disproportionate impacts on Indigenous people, poor people and other marginalized communities that were (and continue to be) over-represented in prisons. In 1993, the law changed to allow persons serving sentences under two years in federal institutions to vote, but it was a court challenge by several incarcerated Canadians that led to a 2002 Supreme Court of Canada decision finding that the broader exclusion was unconstitutional. They were joined by various prisoners’ human rights advocates and groups, including Stony Mountain Institution Inmate Welfare Committee, the Native Brotherhood Organization of Stony Mountain, the Canadian Association of Elizabeth Fry Societies Institution, the John Howard Society, the British Columbia Civil Liberties Association, and Aboriginal Legal Services of Toronto Inc. The majority decision started with taking notice that “the right of every citizen to vote…lies at the heart of Canadian democracy.” The Court warned that “A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardizes its claim to representative democracy, and erodes the basis of its right to convict and punish law-breakers,” The Court recognized that inclusive voting rights is a human rights obligation: More broadly, denying citizens the right to vote runs counter to our constitutional commitment to the inherent worth and dignity of every individual.”*

Cavalluzzo LLP was involved in mounting a further challenge on voting restrictions relating to residency. Canadian citizens living abroad had been denied voting rights. Gillian Frank and Jamie Duong challenged this restriction, bringing the fight all the way to the Supreme Court of Canada. The Court agreed that this violated the Charter of Rights and Freedoms. Importantly, the Court reiterated, in the face of our long history of moving from the vote by the privileged to the vote by all in view of our constitutional entrenchment of a universal vote, “any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification.”**

For more information on the history of voting rights in Canada and on its intersection with race, gender, class, religion and disability, see the following resources:

Courtney, John C.. "Right to Vote in Canada". The Canadian Encyclopedia, 18 December 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/franchise. Accessed 31 March 2021.

Henry, Natasha L.. "Black Voting Rights in Canada". The Canadian Encyclopedia, 18 January 2016, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/black-voting-rights. Accessed 31 March 2021.

https://www.leg.bc.ca/dyl/Pages/1872-Indigenous-and-Chinese-Peoples-Excluded-from-the-Vote.aspx

https://vancouversun.com/news/local-news/canada-150/canada-150-durai-pal-pandia-played-a-key-role-in-getting-the-vote-for-indo-canadians

Ma, Clayton. "Won Alexander Cumyow". The Canadian Encyclopedia, 18 November 2020, Historica Canada. https://www.thecanadianencyclopedia.ca/en/article/won-alexander-cumyow. Accessed 31 March 2021.

https://www.timescolonist.com/islander/remembering-a-b-c-civil-rights-leader-1.23118215

https://www.ufv.ca/media/assets/sasi/BCHF-Story-on-the-Vote-(final).pdf

Canadian Disability Rights Council v Canada, [1988] 3 FC 622, [1988] FCJ No 933

*Sauvé v Canada (Chief Electoral Officer), [2002] 3 SCR 519, 2002 SCC 68, [2002] 3 RCS 519, [2002] SCJ No 66, [2002] ACS no 66

*Frank v Canada (Attorney General), [2019] 1 SCR 3, 2019 SCC 1, [2019] 1 RCS 3, [2019] SCJ No 1, [2019] ACS no 1 

Special thanks to Sheilagh Turkington for her assistance in preparing this feature.

About this feature: The Cavalluzzo LLP features series, Reflections: Labour, Human and Civil Rights, highlights some of the leaders, events, and milestones that are historical underpinnings to the current landscape of Canadian human rights and labour rights. Reflections may reference abhorrent historical realities: as we bear witness to those, we also recognize with gratitude the courage and commitment of the changemakers who continue to inspire strides in social justice. Each instalment in this series has been authored or contributed to by Cavalluzzo LLP staff, articling students or lawyers. 

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