There is no specific legislation to address how people with cognitive disabilities can exercise their right to vote if they are incapacitated.
The right to vote in Canada does not exclude anyone with mental or cognitive disabilities – a level of inclusiveness shared with only a few other democratic nations in the world.
However, it isn’t clear how people can vote if unable to make decisions for themselves
While Elections Canada has procedures in place for assisting those with disabilities or living in long-term care – going door to door with ballots, for example – there is no legal way to determine whether people with mental or cognitive disabilities have the capacity to make decisions in their best interests.
On the other hand, it is unlawful if they are excluded from the right to vote.
According to Elections Canada, “no formal screening processes are used to determine whether a person is capable of voting.”
Citing research conducted by Syracuse University law professor Nina Kohn, Elections Canada adds that “friends, caregivers and facility staff may conduct informal screening of seniors – that is, ‘create affirmative barriers to voting even where not authorized to do so and where their manner of doing so is inconsistent with the law.'”
Enduring power of attorney or substitute decision maker
If a person becomes incapacitated, someone with an ‘enduring power of attorney’ makes decisions on their behalf – – typically with regard to finances. This power requires legal forms to be signed and submitted before that person becomes incapacitated. If these forms aren’t in order at that time, a ‘substitute decision maker’ can be named, starting with the spouse, children, siblings and so on down the list, as per the Advanced Health Care Directives Act.
“In most cases, it’s an automatic default to the spouse, but not always,” said Pamela Dawe, a systemic advocacy consultant with the Office of the Senior’s Advocate. “So, in that case then, if you think about it, if I’m your substitute decision maker because you can’t make a decision . . . is (voting) one of them?”
Dawe said every person with dementia differs; a person may lack the capacity to cook but might be capable of taking care of their finances. It was once thought that a dementia or Alzheimer’s diagnosis was ‘all or nothing,’ but we know now that is not the case.
It stands to reason that someone who has an enduring power of attorney or is a substitute decision maker would be familiar enough to know how a person might vote.
However, the law does not explicitly give someone with the power of attorney the right to act as a proxy when it comes to voting.
Shirley Lucas, CEO of the Alzheimer Society of Newfoundland and Labrador, said that while the society has not had inquiries about how someone who is incapacitated can vote, she theorized it might be possible under certain conditions.
“(It may travel) a similar path of some of the work they’ve done in the assisted dying legislation, in terms of at what point persons are competent to make an informed decision that will be followed through on in the future,” said Lucas.
Kevin O’Shea, executve director of the Public Legal Information Association of Newfoundland and Labrador, says there is nothing in the law saying it is legal to vote on someone else’s behalf when they are incapacitated.
“I don’t think there is anything that contemplates that,” said O’Shea.
Statistics Canada estimates roughly 340,000 to 747,000 Canadians – one to two per cent of the population – have dementia.