The government was not justified in denying ballots to two Canadians that had lived in the United States for five consecutive years or more, judges at the Supreme Court of Canada said in a five-to-two split decision released on Jan. 11.
The majority of the seven-judge panel, comprised of Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis and Clément Gascon, allowed an appeal, striking down passage from the Canada Elections Act that had prohibited voting by “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident.”
Bill C-76, the Elections Modernization Act, recently received Royal Assent and removes the requirement that non-resident electors must have spent less than five consecutive years living outside of Canada.
“Legislatively, I’d say we already had this victory,” says Amanda Darrach, a partner at Cavalluzzo LLP and one of the lawyers that represented the applicants. “What this decision does, and why we are happy to have it, is It constitutionally protects this right to vote. If we just had the legislation — which again, we were very pleased with and very happy to see — there would be nothing stopping a future government from implementing this restriction again. What this decision does is recognize that that is not constitutionally permissible and protects Canadian citizens from having these restrictions in the future.”
Central to the judges’ reasons were whether the Attorney General of Canada met the two central criteria to limit a right guaranteed by the Canadian Charter of Rights and Freedoms.
Section 3 of the Charter said, “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,” while section 1 said, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The judges said the majority reasons that the government must meet two criteria to limit voting rights under s. 1: “First, the objective of the measure must be pressing and substantial. Second, the means by which the objective is furthered must be proportionate; this requires a rational connection to the objective, minimal impairment of the right, and proportionality between the effects of the measure and the objective.”
“There is little to justify the choice of five years as a threshold or to show how it is tailored to respond to a specific problem. As well, the five-year limit is overinclusive. It improperly applies to people to whom it is not intended to apply, and it does so in a manner that is far broader than necessary,” the judges wrote.
Canadians are not allowed, for example, to vote in whatever province they wish by virtue of the Charter, Justice Malcolm Rowe wrote in a separate, concurring opinion. But while residence is a “foundational” way that Canada’s electoral system establishes connections to certain voting districts, it is not significant enough to justify a limit on the right to vote, Rowe wrote.
“[T]he salutary effects of promoting fairness for resident Canadians are outweighed by the deleterious effects of denying long-term non-resident Canadians the right to vote in federal elections,” said Rowe in the concurring opinion.
Two judges, Justices Suzanne Côté and Russell Brown, dissented, writing that the issue of the appeal was not whether the alleged infringement on the right to vote was justified, but whether the limit was “unreasonable.”
“Parliament was quite properly striving to shape the boundaries of the right by enacting legislation governing the terms on which elections are conducted, by drawing a line at citizens who have a current relationship to the community in which they seek to cast a ballot,” the dissenting reasons said.
The dissenting judges noted that the ill effects are reversible when it comes to denying some citizens the right to vote.
“Any adult Canadian citizen can still exercise the right to vote at any point, provided that he or she re‑establishes residence in Canada. Thus, the restriction at issue is not a permanent denial of the right to vote. Just like the age requirement, it represents a distinction based on the experiential situation of all citizens in that category; it is not a distinction based on moral worth,” the dissenting judges wrote.
“I think in principle, Parliament should be able to — for the right set of reasons — limit a non-resident’s right to vote. But I also think the Supreme Court did a good job of explaining why this case wasn’t the right case,” says Andrew Bernstein, a partner in the Toronto of Torys LLP.
“Justices Côté and Brown were willing to give Parliament the benefit of the doubt. They sort of said, you have to draw the line somewhere, what’s wrong with here? I think it’s a philosophical difference in some ways — Justices Côté and Brown have shown themselves to be more deferential to Parliament. Whereas, the majority says, ‘Hold on, it’s not even clear that you have to draw the line somewhere, but there’s no reason to think the way they’ve drawn the line here is particularly sensible.”
Darrach says that the majority decision is a good new articulation of s.1 analysis which will be very helpful in clarifying the steps needed for a s. 1 analysis.
“In terms of democratic rights, the s.3 analysis, I think is a further articulation that…. Canada is a leader in enfranchisement. Canada is a leader in democratic rights. Any restrictions on those rights, the courts will be looking at very, very carefully in the future,” says Darrach.
Darrach also said the decision marked a very progressive step for the court, which recognized that Canadian citizens can take advantage of new ways of maintain connections, such as through technology. Wagner noted in the majority opinion that many have “deep and abiding connections to Canada through family, online media and visits home, and by contributing taxes and collecting social benefits.”
“One of the biggest takeaways that I had from this decision so far is that Justice Wagner says at a certain point, this isn’t about fairness, this isn’t about maintaining connection. You have to recognize that connections to your country manifest in different ways, particularly in the times we are in now,” says Darrach. “You can manifest those connections through reading blogs, being involved in politics remotely, actually voting in these elections.”
She said that for her clients, it was particularly important that the majority reasons acknowledged that denying voting rights to long-term non-resident citizens “comes at the expense of their self-worth and their dignity.”
“Since voting is a fundamental political right, and the right to vote is a core tenet of Canadian democracy, any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification,” the majority wrote.