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ELECTIONS - Voters or electors - Qualifications - Residency

Friday, January 11, 2019 @ 1:29 PM  

Lexis Advance® Quicklaw®
Appeal by Frank and Duong from a judgment of the Ontario Court of Appeal setting aside a decision that found provisions of the Canada Elections Act (Act) unconstitutional and of no force or effect. the Appellants, two Canadian citizens who resided in the United States, challenged the denial of their right to vote in a Canadian federal election on the basis that they had lived abroad for longer than five years. They argued that the requirements of residing outside Canada for less than five consecutive years and of intending to resume residence in Canada in the future unjustifiably violated their rights under s. 3 of the Canadian Charter of Rights and Freedoms (Charter). The appeal concerned the limit on non-residents’ voting rights that was established in s. 11(d) of the Act and its constitutionality. The application judge found that the impugned provisions infringed s. 3 of the Charter and could not be saved under s. 1. The Attorney General of Canada (AGC) appealed from the decision and a majority of the Ontario Court of Appeal allowed the appeal. The judges found the impugned provisions to be rationally connected to the social contract objective, minimally impairing and proportional.

HELD: Appeal allowed. Any limit on the right to vote was to be carefully scrutinized and could not be tolerated without a compelling justification. A broad and purposive interpretation of s. 3 did not allow for residence to operate as an internal limit on the right to vote. Limits on the right to vote had to, if raised, be justified under s. 1 and not be indirectly incorporated into the scope of the right itself. The right to vote was no longer tied to the ownership of property and bestowed only on select members of society. Citizenship, not residence, defined the Canadian political community and underpinned the right to vote. The provisions at issue reflected, as the AGC conceded, Parliament’s decision to disenfranchise long-term non-resident citizens as they were subject to an absolute denial of their Charter right to vote after crossing the five-year non-residence threshold. Deeming that a citizen had withdrawn from the social contract was not a legitimate basis for denying him or her the right to vote. The AGC did not definitively show that a limit of any duration would be rationally connected to the electoral fairness objective advanced. The fact that other democracies had legislated residence-based voting restrictions was of little assistance in determining what was required by Canadian democratic rights. The five-year limit could not be said to be minimally impairing, given that it impaired the rights of many non-resident citizens who maintained deep connections to Canada and many on whom Canadian laws continued to have a significant impact.

Frank v. Canada (Attorney General), [2019] S.C.J. No. 1, Supreme Court of Canada, R. Wagner C.J. and M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., January 11, 2019. Digest No. TLD-January72019011-SCC