Safeguarding the right to vote for all citizens, regardless of age

Jaime Watt Navigator Ltd.
Executive Chairman
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This column originally appeared in the Toronto Star on Sunday, October 13.

As we all gathered around to celebrate thanksgiving this weekend, I felt especially grateful for my incredible family and so lucky to have with us my amazing mother, a woman whose view of the world and commitment to the service of others has so profoundly influenced me and the person I have become.

Sadly, in recent years, my mother’s cognitive facilities have declined with a swiftness that is both devastating and unspeakably heart breaking.

As our family, like so many others, talked about the election together this weekend, I began to think about the role played by Canadians — approximately 500,000 Canadians — with cognitive impairments in our most basic democratic tradition. How, I wondered, do individuals like my mother participate in our democracy and what supports are in place for them to do so?

By the next election in 2023-2024, nearly 1-in-5 Canadians will be older than 65, and with that demographic shift will come increased rates of Alzheimer’s and dementia. We also know that older voters turn out to the polls in disproportionate numbers.

Having reached her eighth decade, my mother lives in a country almost unique in the world where there are no restrictions on her ability to vote regardless of how much her mental condition deteriorates. In a survey of 62 countries, only four lacked a mental capacity requirement on the right to vote. (The others are Ireland, Italy and Sweden.) Within Canada, only one province or territory, Nunavut, has such a restriction on the eligibility to vote.

South of the border, by contrast, such restrictions are the norm. More than 30 U.S. states have laws limiting those with mental disabilities or cognitive impairments from voting if they have been ruled legally incompetent.

These restrictions do not only impact the elderly, as many illnesses or conditions can result in cognitive impairment including multiple sclerosis, strokes, traumatic brain injuries, Parkinson’s or Huntington’s disease, as well as Alzheimer’s and dementia. In cases where successful legal challenges have been mounted against mental capacity requirements, the plaintiffs are often autistic.

As with so many of the battles over voting rights, the argument in favour of restrictions boils down to a defence against voter fraud. Proponents fear that people will use the vulnerable and the elderly to harvest their ballots.

Until 1988, this was the basis of the law in Canada, as dictated by the mental capacity provision of the Canadian Elections Act, which excluded from voting any person who was “restrained of his liberty of movement or deprived of the management of his property by reason of mental disease.” That year, Madam Justice Reed held that the provision was in violation of the Charter, which guarantees to every Canadian citizen the right to vote.

“It simply does not follow that people who are declared incapable of managing their financial affairs are necessarily incapable of understanding the nature of the right to vote and of exercising it in a rational manner,” wrote Justice Reed.

While subsequent blue-ribbon panels recommended a narrower restriction, Parliament opted simply to repeal the law in time for the 1993 federal election. Nothing has yet replaced it, and so far, our democracy has gotten along just fine since then.

What’s more, a number of informal approaches have developed to ensure abuse does not take place. U.S. surveys have shown that in nursing homes, where this kind of challenge is a perennial problem, staff have figured out a gatekeeping system, quizzing residents on political questions to assess whether they are in a state of mind to vote.

The approach that forbids anyone in a long-term care home or anyone with a cognitive impairment from voting is rooted in an outdated view of mental health. Where once we sought to institutionalize those with mental disabilities to be cared for and saved from themselves, today, the prevailing view favours integration with the community. Today, the goal is a meaningful life lived as much as possible like everyone else. And there is no more meaningful contribution to our society than voting.

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