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Citizens abroad seeking to vote in Canadian elections take their fight to SCC

|Written By Aidan Macnab
Citizens abroad seeking to vote in Canadian elections take their fight to SCC
Andrew Bernstein, a partner at Torys LLP, says the case is about what is a reasonable limit to s. 3 of the Charter.

Whether a law prohibiting those residing outside of Canada for more than five years from voting is a violation of s. 3 of the Charter and, if so, whether it is a reasonable limit, will be disputed starting today at the Supreme Court of Canada.

The appellants in Gillian Frank, et al. v. Attorney General of Canada were not allowed to vote in the 2011 federal election because they had moved to the United States to work. They successfully sought a declaration that the provisions of the Canada Elections Act, enacted in 1970, violated their Charter right to vote. The majority of Ontario’s Court of Appeal allowed the appeal brought by the attorney general, finding that the provisions in question were saved by s. 1, which subjects reasonable limits to Charter rights.

The court connected the reasonable limit to Canada’s “social contract”, where citizens submit to the law because they vote to influence it. Those outside of Canada, not subject to the laws of Canada, therefore, do not have sufficient stake in the process.

The case is a line-drawing exercise, says Andrew Bernstein, a partner at Torys LLP, about what is a reasonable limit to s. 3 of the Charter, which states: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

“Where do you draw the line between somebody who left the country a month before election day . . . and the person who left forever on their first birthday and has never been back and has never thought about Canada except that they renew their passport every 10 years?” he says.

“My view is a line needs to be drawn somewhere and Parliament’s drawn the line in a pretty reasonable place,” he says.

Brendan Van Niejenhuis, a lawyer with Stockwoods LLP, is acting on behalf of the BC Civil Liberties Association, which became involved at the appeal stage.

“What the Charter says is that every citizen of Canada has the right to vote in an election, and it says that full stop,” he says.” It does not subject that fundamental right, on which all others depend, to the override clause in s. 33; that’s got to mean something.”

Though Bernstein contends that, while the Charter provides voting rights for all citizens, the government chooses not to extend that to the millions of Canadians under the age of 18.

“There’s lots of 17-year-olds who feel very strongly that they’re disenfranchised,” he says.

But denying the vote to adult Canadians living abroad will rest on whether the Supreme Court thinks the social contract theory is a legitimate objective, says Bernstein. If it is accepted, the legislation will be saved by s. 1. If it is not accepted as a legitimate objective, it will be either because it was not specifically articulated by Parliament when the law was passed or because the government did not initially argue about it, he says.

Relevant to the case will be Sauvé v. Canada, heard in the Supreme Court of Canada in 1993. In Sauvé, the Canada Elections Act was challenged on the basis that the denial of the vote to those “imprisoned in a correctional institution serving a sentence of two years or more” was unconstitutional.

Richard Sauvé was serving a life sentence for first-degree murder and had sought a declaration that he be allowed to vote. The trial court ruled in his favour. The Attorney General of Canada appealed the decision to the Supreme Court, which dismissed the appeal.

The court found that the provisions in question of the Canada Elections Act were “drawn too broadly” and failed the proportionality test, “particularly the minimal impairment component of the test,” meaning the denial of voting rights was not a minimal impairment and was not balanced with enough societal gain to be justified.

Van Niejenhuis says Gillian Frank, et al. v. Attorney General of Canada will likely focus on the need to justify restrictions on voting rights with “concrete concern” or “objective danger” to the electoral process and that it was these factors that the provisions in the act were intended to ameliorate.

He says the characterization of the social contract theory has “shifted somewhat” in the course of the case. The BCCLA’s perspective is that the theory is “speculative and insubstantial,” he says.

“[It is] insubstantial in the sense that there’s not a lot of weight to that concern, it being so theoretical and not amenable to being shown on evidence,” Van Niejenhuis says.

More reasonable in justifying the violation of the voting rights of Canadians living abroad, Van Niejenhuis says, would be some threat similar to the alleged Russian interference in the U.S. election in 2016.

The composition of the Supreme Court has changed since Sauvé. Van Niejenhuis says it will be interesting to see how the new court handles the government’s justification and if it is forced and able to show “a real, concrete, evidence-based demonstration” that the provisions in the Canada Elections Act are responding to a real problem or if it will come to the same conclusions as the court that heard Sauvé v. Canada.

In the appeal stage, though, the majority of the court allowed the government’s appeal and Justice John Laskin dissented, rejecting the social contract theory as being inappropriate and not a “pressing and substantial legislative concern,” according to the Supreme Court’s summary.

Laskin found that denial of the right to vote “was not rationally connected” to the stated objective and more than minimally impaired the rights of citizens living abroad.

Editor's Note: Story updated March 21, 2018 to correct name of Justice John Laskin and to reflect that Andrew Bernstein is not representing the government in the case.



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