Foolish Hope

When I blogged last month about Frank v. Canada (Attorney-General), 2014 ONSC 907, the decision of Ontario’s Superior Court of Justice striking down the provisions of the Canada Elections Act disenfranchising Canadians who reside abroad for more than five years, I expressed the hope that “the government [would] save[] taxpayers money by not appealing.” Justice Penny’s ruling, as I said then, “is legally correct and morally right ― quite obviously so.” But, as it turns out, the government is undeterred. According to a Canadian Press report published by La Presse, it will not only appeal, but also ask for the decision to be stayed pending the appeal’s resolution. If the stay is granted, Canadians abroad who might have voted in the upcoming by-elections will be disenfranchised.

I expect that not only the appeal, but also the stay application will fail. I look forward to reading the federal government’s notice of appeal and, eventually, its factum, if the respondents’ lawyers post them on the website where they have documented the case; but I really cannot imagine that they will offer much more than a rehash of the vague platitudes rejected by the trial judge. Nor can I see how the government intends to meet the criteria for succeeding on its stay application: the existence of a serious question in dispute, the possibility that it will suffer irreparable harm if the stay is not granted, and the balance of convenience.

The judge who considers the stay application will probably let the government off the hook on the first part of the test (though I, for one, am not even persuaded that the constitutionality of disenfranchising Canadians abroad is a “serious issue” in light of Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, where the Supreme Court rejected arguments in favour of disenfranchisement of prisoners very similar to those advanced by the federal government in Frank). But I cannot, for the life of me, see what “irreparable harm” the stay would prevent. As Justice Penny found at first instance, “the government has failed to identify any particular problem with non-resident voter fraud or … undue drain on Parliamentary resources” (par. 114) that might have justified the disenfranchisement of expatriates, so it is difficult to understand what harm could come out of a few of them voting in some by-elections while the (likely futile) appeal is being heard. Similarly, I doubt that the government can show that it will suffer much of an inconvenience that could help it prevail on the third part of the test. In any case, the absence of irreparable harm means that it cannot and ought not to succeed.

The stay application and the appeal itself are a waste of court time and taxpayers’ money. I suppose it was, after all, foolish to hope that the government would realize that, despite Justice Penny’s clear and solid ruling at first instance. Perhaps the Court of Appeal can deliver an even clearer one so that the government will at least spare us the expense of taking this case to the Supreme Court. Foolish though it is, one can still hope, right?

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.

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