The CBC reports that Justice Robert Sharpe of the Ontario Court of Appeal denied the federal government’s application for a stay of the Superior Court’s decision in Frank v. Canada (Attorney-General), 2014 ONSC 907, invalidating the restrictions on expatriate voting in the Canada Elections Act, which the government is appealing. I blogged about the Superior Court’s decision here, and about the stay application here.
The text of Justice Sharpe’s decision is not yet available, but from the excerpts quoted by the CBC, it seems that it focused on the “irreparable harm” part of the test for a stay pending appeal. The government argued that it would suffer such harm if the stay were not granted, because the votes of the expatriates enfranchised by Frank ― those, that is, who have been resident outside Canada for more than five years ― might tilt the outcomes of the upcoming by-elections in Ontario and Alberta. This possibility, according to Justice Sharpe (as quoted by the CBC), is “fairly remote.” By contrast, if people are unconstitutionally disenfranchised, their opportunity to vote in the upcoming elections is lost forever. Thus the balance of convenience stage of the test does not favour the government either.
This decision is what I expected. Justice Sharpe seems to have suggested that the government has “an arguable appeal.” I still doubt that this is so, as I explained in my previous posts. In any case, “arguable” does not mean “likely to succeed.” I still believe that the government’s appeal, much like the stay application, is a waste of court time and taxpayer money.
UPDATE: The stay decision, Frank v. Canada (Attorney General), 2014 ONCA 485, is now available here. If anything, the government’s case is in a worse shape than the CBC report seemed to suggest. Justice Sharpe describes the judgment below as “carefully considered” (par. 8), and is skeptical of the government’s position on the merits of the appeal. On the question of whether there is a serious issue to be decided in the appeal, he writes:
I share the application judge’s concern that the objectives identified by the Attorney General as being sufficient to justify limiting the right to vote are broad, symbolic and rhetorical. In oral argument, counsel insisted that Parliament’s central concern was election fairness. It is not clear to me how denying a citizen the right to vote can be justified on the basis of electoral fairness. The objectives identified by the Attorney General obscure what appears to me to be the real issue, namely, whether the five year limit on non-resident voting can be justified on the basis that it is necessary to sustain our geographically determined, constituency-based system of representation. As the Supreme Court of Canada observed in Sauvé v. Canada (Chief Electoral Officer),  3 S.C.R. 519, the prisoner voting case, “[v]ague and symbolic objectives” render proportionality analysis hollow. However, I do not say that the Attorney General has failed to show that the appeal is arguable. (Par 13)
Justice Sharpe is also not amused by the government’s assertion of “something approaching an automatic right to a stay” (par. 14). There is no such thing. Justice Sharpe points out that unlike in cases where the validity of a complex regulatory scheme is in question, allowing Canadians abroad to vote will cause no real disruption to the electoral process. (Indeed, Elections Canada has already implemented the necessary changes.) This too seems to bode ill for the government’s argument on the merits of the appeal, since it will have a hard time showing that the prohibition on expatriate voting has any serious salutary effects.
ADDITIONAL UPDATE: In the Toronto Star, Tim Harper has an excellent column on Canadians abroad and their fight to vote. He concludes:
The Conservative view of Canadians who have left the country remains hard to fathom. If you are a dual citizen journalist in Egypt wrongly sentenced to seven years in prison your government is largely silent. If you are a Liberal leader who spent time abroad, you are attacked for leaving. If you are a Canadian citizen abroad wishing to vote, you must first fight your government.
For my part, I will add this. I lived in the United States for almost four years; I started this blog, dealing largely with Canadian constitutional law, while I was there. On the evidence of this record of my thinking, I challenge anyone, including Justice Minister Peter MacKay and Democratic Reform Minister Pierre Poilievre, to show what has changed, in my knowledge of and attachment to Canada, since I have returned last month. Or what will change if I have to leave again, for work, in the future.