Voice After Exit!

In a decision released last week, Frank v. Canada (Attorney-General), 2014 ONSC 907, Ontario’s Superior Court of Justice held that the disenfranchisement of Canadian citizens who have been resident abroad for more than five years is unconstitutional. The provisions of the Canada Elections Act at issue in Frank limited the right to vote from abroad to those Canadians who had been resident outside Canada for less than five years and intended to return ― although members of the Canadian Forces, civil servants, and Canadians employed by some international organizations, as well the members of these people’s families, were exempt from the five-year limit. Two Canadians living in the United States, who had, as as result, been unable to vote in the last federal election, challenged the five-year limit and the requirement of an intention to return. In a thorough and meticulous decision, Justice Penny agrees with them, finding that depriving Canadian expatriates of their right to vote is a violation of s. 3 of the Charter, and cannot be justified under s. 1.

From the evidence, Justice Penny concludes that “well over a million Canadians” (par. 20) are disenfranchised by the five-year rule. Yet many of them, just like the applicants themselves, maintain connections to Canada. They visit it; they stay informed about Canadian news; they have friends and family in Canada; many still pay some taxes in Canada; and large majorities considered Canada their home and intended to return there. Justice Penny also finds, following a detailed review of the history of vote-from-abroad provisions in Canadian electoral legislation, that the five-year is, in effect, a mushy compromise between those who worried about the unconstitutionality of disenfranchising Canadians abroad and those more concerned about the extent of the expatriates’ connections to Canada. There was little debate about it in Parliament, and little explanation for the number chosen.

Remarkably ― and contrary to what I expected when I blogged about this case when it was launched ― the government argued that the disenfranchisement of Canadians citizens living abroad was not an infringement of the s. 3 right. In its view, residence was an internal limitation on that right, rather than a qualification that had to be justified under s. 1. Justice Penny rejects this argument, noting that “s. 3 clearly contains no limits on the right to vote other than citizenship.” Although residence is an important parameter in our current electoral system, that system itself is not constitutionally entrenched. Indeed,

The framers of the Charter, and those who adopted it, stipulated citizenship as a requirement to vote but did not include residence, in spite of the long history of residence as an element of the Canadian electoral process (par. 84).

The same is true of the government’s argument that the right to vote was inherently limited to those who had a stake in Canada’s laws and future: the Charter itself defines citizenship alone as conclusive proof of a person having such a stake. Any countervailing considerations supporting limits on the franchise must to be considered under s. 1.

The first step of the s. 1 analysis is a consideration of the five-year rule’s objective. The two main purposes asserted by the government were avoiding unfairness to Canadian residents that would result from people not connected to and not informed about Canada voting, and preserving the integrity of the electoral system from fraud and excessive demands on members of Parliament. Justice Penny is not impressed: the objectives are “rhetorical” (par. 112); “substantive ‘fairness’ is almost always in the eye of the beholder” (par. 113); and “the government has failed to identify any particular problem with non-resident voter fraud or … undue drain on Parliamentary resources” (par. 114). Justice Penny comes close to finding that the government’s objectives are not “pressing and substantial”, as required to justify the infringement of a Charter right but, without actually ruling on this point, chooses to proceed to the rest of the s. 1 analysis.

Not that things get better for the government there. At the outset of the inquiry into the connection between the government’s objectives and the five-year rule, Justice Penny finds that

the government argues that the non-resident is insufficiently connected to Canada and that the voting rights of resident Canadians can only be protected against de-valuation by taking away the vote from those who are unworthy ― those who have lost their connection to Canada by being non-resident for five years or more (par. 123).

Yet the Supreme Court rejected a very similar argument, with respect to prisoners’ voting rights, in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519. Whatever “vague concerns” Parliament might have had about expatriates voting, “[i]n 2013, it is not only possible but easy for interested Canadians to keep abreast of Canadian politics and current events” (par. 125). In Justice Penny’s view, the disenfranchisement of Canadians abroad, however long they have lived outside Canada, does nothing at all to prevent the unfairness and abuse the government is purportedly concerned about.

The five-year rule is also overbroad, and thus not a minimal impairment of the right to vote, since it disenfranchises people whose knowledge of Canadian politics may be exemplary (even as other Canadians, “many of whom may be totally uninformed and disinterested” (par. 136), are allowed to vote. And even if being a citizen were not a sufficient connection to Canada to vote, “the very act of being interested in and taking the steps to vote is evidence of the voter’s connection to Canada” (par. 142).

Finally, Justice Penny finds that

 the vague assertions of unfairness to resident voters and the speculative nature of any negative impacts cannot outweigh the substantial, deleterious impact of stripping a Canadian citizen of his or her right to vote by virtue only of crossing the five-year non-resident threshold (par. 150).

The government’s lack of evidence to support its case dooms it. The five-year rule is unconstitutional, and there is no point, according to Justice Penny, in suspending the declaration of unconstitutionality.

This is the right decision, and indeed there is little to criticize in Justice Penny’s reasons. As Justice Penny finds, and as I wrote in my first post on this case, the disenfranchisement of Canadians abroad is arbitrary. It is nothing more than a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé. I hope the government saves taxpayers money by not appealing this decision. It is legally correct and morally right ― quite obviously so.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

2 thoughts on “Voice After Exit!”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: