Capacity to Vote: Enhancing Democratic Participation and Protecting the Vulnerable
There’s an election coming. Perhaps you’ve heard.
A quick review of the Elections Canada website will inform you what you need in order to vote. You will likely need your voter card (sent to you by mail) and photo identification. Provided you’re 18 years of age, a citizen of Canada and you are on the voters’ list for your riding (which can actually be done when you arrive at the poll to vote), you will be permitted to step behind the screen in a poll and take part in the glorious democratic institution of casting a ballot. That is essentially all that is required.
Conspicuous by its absence from these requirements is that a person need not have any level of particular decisional capacity to vote. People may lack the decisional capacity to marry, execute or revoke a Will, or grant and/or revoke Powers of Attorney, and yet may still be freely permitted to cast a vote in any public election in Canada.
There are at least three reasons I can think of why no government has yet attempted to impose restrictions on a person’s ability to vote which are linked to capacity.
First of all, unlike executing a new Will or changing a Power of Attorney designation, the individual impact of a person’s vote is necessarily (ordinarily) less significant. Whereas a person may, unilaterally, do harm to themselves or their property by revoking a Power of Attorney, one elector casting a vote for one candidate as a result of the person’s lack of capacity will have an insubstantial impact in most instances. To be clear, of course, every vote counts, and I am not suggesting otherwise.
A second difference is that unlike a person’s right to draft a Will or Powers of Attorney which are governed by statue, (for example, the Substitute Decisions Act, 1992, S.O. 1992 c.30), a person’s right to vote is entrenched in the Canadian Charter of Rights and Freedoms, and is thus constitutional and except in accordance with the constitution itself and the case law which has developed thereunder, inalienable.
A third reason why governments have not yet imposed restrictions on a person’s ability to vote linked to capacity may be that many “capable” voters do not have any understanding of the issues about which they are voting. The only limitation applicable to voting for most Canadians is that they must be 18 years of age—they don’t need to know who the leader of a party is, whether the party stands for what they believe in, or even what the name of their local candidate is (the ballots say “Liberal” or “Conservative” etc. beside the candidate’s name).
Unlike testamentary capacity which requires (amongst other things) a person to understand the nature and effect of making a Will, what could a test for capacity to vote require when many voters who are otherwise decisionally capable lack knowledge about the political system, political parties and candidates? For example, it would be unthinkable for a government to say, “in order to cast a vote, an elector must have the decisional capacity to appreciate the 3 most significant differences between the parties with candidates running in their riding in the election in which the elector wishes to vote”. This is so, particularly, since many voters cannot identify these differences.
Another very clear distinction is that voting is closely tied with the fundamental right of freedom of conscience: electors have the right to cast a vote based on their own mind, and motivated by their own reasons whatever they may be.
Why does this concern me? Because frequently in Canada, elections are determined by very few votes. In 1994 and again in 2003, separate ridings in Quebec saw tied elections on the first ballot, necessitating a second ballot. In 2006 in the riding of Parry Sound-Muskoka, current Conservative Party MP and President of the Treasury Board the Hon. Tony Clement defeated the Liberal Party incumbent Andy Mitchell by 28 votes. In 2008 in the riding of Kitchener-Waterloo, Conservative MP Peter Braid defeated Liberal incumbent MP Andrew Telegdi by 17 votes. This type of minuscule margin between candidates is not unusual in Canadian history. So literally, in Canada, every vote counts.
Interestingly, it has become standard practice for political candidates to make campaign visits to retirement homes and in some cases long-term care facilities to meet and greet residents. Candidates of all political stripes distribute pamphlets, shake hands and say speeches about their Party’s platform. Candidates ask these residents for their vote on Election Day. In reality, a candidate might be able to meet 200 or 300 residents of long-term care facilities or retirement homes during an election campaign; it depends on how hard the candidate pushes and which agenda the candidate is advancing.
No one asks if the residents of these homes (on an individual basis) are capable of voting, or whether they are being influenced (unduly or otherwise) by the candidate. Imagine if, for example, a candidate chooses to focus his or her campaign message at a long-term care home on an opposing party’s platform as it relates to healthcare. “Fear mongering” is surely a possibility, and the absence of a countervailing speech by an opponent may create a situation in which vulnerable residents of the long-term care home are influenced into voting a particular way on the basis of representations or at the very least, particular characterizations of fact.
If you are thinking, “well, it must be difficult for decisionally incapable people to get to a poll”, think again. Many times, election polls are actually set up in the retirement facilities and long-term care homes. As every politician knows, residents of these facilities do, in fact, turn out to vote, often en masse. Where a margin of 25 or so votes can win or lose an election, it is precisely the votes of people who may lack the requisite decisional capacity to vote which will be determinative of the outcome of the election.
Maybe there is no answer to the question I have posed here; as I have pointed out, the right to vote is central to an inherent in the concept of democracy; inalienable and personal, this right permits all Canadians to vote their conscience for whatever reasons (or lack thereof) by which they are motivated. Indeed, there is a presumption of capacity that every individual is decisionally capable unless legally rebutted.
Still, there is a social harm to defend against, where vulnerable members of society are targeted precisely because of their limited capacity. There is no known test for the requisite decisional capacity to vote. Maybe there should be, not to limit the rights of vulnerable Canadians, but to enhance and protect their rights and the efficacy of democracy itself.
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Written by: WEL Partners
Posted on: October 18, 2015
Categories: Commentary
There’s an election coming. Perhaps you’ve heard.
A quick review of the Elections Canada website will inform you what you need in order to vote. You will likely need your voter card (sent to you by mail) and photo identification. Provided you’re 18 years of age, a citizen of Canada and you are on the voters’ list for your riding (which can actually be done when you arrive at the poll to vote), you will be permitted to step behind the screen in a poll and take part in the glorious democratic institution of casting a ballot. That is essentially all that is required.
Conspicuous by its absence from these requirements is that a person need not have any level of particular decisional capacity to vote. People may lack the decisional capacity to marry, execute or revoke a Will, or grant and/or revoke Powers of Attorney, and yet may still be freely permitted to cast a vote in any public election in Canada.
There are at least three reasons I can think of why no government has yet attempted to impose restrictions on a person’s ability to vote which are linked to capacity.
First of all, unlike executing a new Will or changing a Power of Attorney designation, the individual impact of a person’s vote is necessarily (ordinarily) less significant. Whereas a person may, unilaterally, do harm to themselves or their property by revoking a Power of Attorney, one elector casting a vote for one candidate as a result of the person’s lack of capacity will have an insubstantial impact in most instances. To be clear, of course, every vote counts, and I am not suggesting otherwise.
A second difference is that unlike a person’s right to draft a Will or Powers of Attorney which are governed by statue, (for example, the Substitute Decisions Act, 1992, S.O. 1992 c.30), a person’s right to vote is entrenched in the Canadian Charter of Rights and Freedoms, and is thus constitutional and except in accordance with the constitution itself and the case law which has developed thereunder, inalienable.
A third reason why governments have not yet imposed restrictions on a person’s ability to vote linked to capacity may be that many “capable” voters do not have any understanding of the issues about which they are voting. The only limitation applicable to voting for most Canadians is that they must be 18 years of age—they don’t need to know who the leader of a party is, whether the party stands for what they believe in, or even what the name of their local candidate is (the ballots say “Liberal” or “Conservative” etc. beside the candidate’s name).
Unlike testamentary capacity which requires (amongst other things) a person to understand the nature and effect of making a Will, what could a test for capacity to vote require when many voters who are otherwise decisionally capable lack knowledge about the political system, political parties and candidates? For example, it would be unthinkable for a government to say, “in order to cast a vote, an elector must have the decisional capacity to appreciate the 3 most significant differences between the parties with candidates running in their riding in the election in which the elector wishes to vote”. This is so, particularly, since many voters cannot identify these differences.
Another very clear distinction is that voting is closely tied with the fundamental right of freedom of conscience: electors have the right to cast a vote based on their own mind, and motivated by their own reasons whatever they may be.
Why does this concern me? Because frequently in Canada, elections are determined by very few votes. In 1994 and again in 2003, separate ridings in Quebec saw tied elections on the first ballot, necessitating a second ballot. In 2006 in the riding of Parry Sound-Muskoka, current Conservative Party MP and President of the Treasury Board the Hon. Tony Clement defeated the Liberal Party incumbent Andy Mitchell by 28 votes. In 2008 in the riding of Kitchener-Waterloo, Conservative MP Peter Braid defeated Liberal incumbent MP Andrew Telegdi by 17 votes. This type of minuscule margin between candidates is not unusual in Canadian history. So literally, in Canada, every vote counts.
Interestingly, it has become standard practice for political candidates to make campaign visits to retirement homes and in some cases long-term care facilities to meet and greet residents. Candidates of all political stripes distribute pamphlets, shake hands and say speeches about their Party’s platform. Candidates ask these residents for their vote on Election Day. In reality, a candidate might be able to meet 200 or 300 residents of long-term care facilities or retirement homes during an election campaign; it depends on how hard the candidate pushes and which agenda the candidate is advancing.
No one asks if the residents of these homes (on an individual basis) are capable of voting, or whether they are being influenced (unduly or otherwise) by the candidate. Imagine if, for example, a candidate chooses to focus his or her campaign message at a long-term care home on an opposing party’s platform as it relates to healthcare. “Fear mongering” is surely a possibility, and the absence of a countervailing speech by an opponent may create a situation in which vulnerable residents of the long-term care home are influenced into voting a particular way on the basis of representations or at the very least, particular characterizations of fact.
If you are thinking, “well, it must be difficult for decisionally incapable people to get to a poll”, think again. Many times, election polls are actually set up in the retirement facilities and long-term care homes. As every politician knows, residents of these facilities do, in fact, turn out to vote, often en masse. Where a margin of 25 or so votes can win or lose an election, it is precisely the votes of people who may lack the requisite decisional capacity to vote which will be determinative of the outcome of the election.
Maybe there is no answer to the question I have posed here; as I have pointed out, the right to vote is central to an inherent in the concept of democracy; inalienable and personal, this right permits all Canadians to vote their conscience for whatever reasons (or lack thereof) by which they are motivated. Indeed, there is a presumption of capacity that every individual is decisionally capable unless legally rebutted.
Still, there is a social harm to defend against, where vulnerable members of society are targeted precisely because of their limited capacity. There is no known test for the requisite decisional capacity to vote. Maybe there should be, not to limit the rights of vulnerable Canadians, but to enhance and protect their rights and the efficacy of democracy itself.
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