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Last week, the Ontario Court of Appeal and the Ontario Superior Court of Justice each ruled on separate Charter challenges to legislation affecting the rights of certain groups of Canadians to vote in the October 2015 federal election. Surprisingly, both courts permitted the impugned provisions at issue to continue in force and effectively denied these groups the right to vote.

The main focus of this article is the Court of Appeal’s decision regarding the right of Canadian expatriates to vote; however, I will first briefly address the Ontario Superior Court’s disappointing decision in Council of Canadians v. Canada related to  voter ID requirements (the “Voter ID Case”).

The Voter ID Case

The applicants in the Voter ID Case requested an injunction to suspend the application of an amendment to the Fair Elections Act until its constitutionality had been determined by a court. The amendment in question was enacted in June 2014 and removed the right of the Chief Electoral Officer (CEO) to accept a citizen’s Voter Identification Card (VIC) as proof of identity and address. This move followed the CEO’s announcement that he intended to permit the use of VICs in the October 2015 election. The CEO had tested the VIC in previous elections (in 2010 and 2011) as pilot projects for target populations and determined that the project was a success.

On an injunction, the court is required to assess 1) whether there is a serious issue to be tried (meaning that the application is not frivolous); 2) whether the applicant could suffer irreparable harm if the injunction were refused (meaning that money wouldn’t compensate for the loss and/or the harm could not be undone); and 3) who the balance of convenience favours (meaning who would suffer more if the request was granted or not granted).

Although Justice Stinson found that there was a serious issue to be tried and that there would indeed be irreparable harm to any disenfranchised voters, he denied the injunction. Instead of fully considering the third part of the test for an injunction (balance of convenience), the court relied on an alleged rule that an interlocutory injunction cannot be granted in elections cases where there was a constitutional challenge to electoral legislation. The decision has already been appealed to the Divisional Court because the applicants argue that no such rule exists.

If the stay of the new amendment is not ultimately granted and quickly, as many as four million Canadians — including numerous students, Aboriginals, elderly living in care facilities, and homeless individuals — may be unable to vote in the federal election due to an inability to prove both residence and identity.

Expatriate rights — Frank v. Canada

In Frank v. Canada, the Ontario Court of Appeal was asked to determine the constitutionality of sections 11(d) and 222(1)(b) of the Canada Elections Act (CEA), which precludes some Canadians who have been living abroad for more than five years from voting in federal elections. Members of the Canadian Armed Forces and federal public servants stationed overseas are not affected by this law; however, Canadians who are completing graduate or post-graduate studies in the U.S. are prevented from voting, as are Canadians working with private Canadian companies in foreign offices, or Canadians caring for an ill parent residing out of country, even if those individuals have strong ties to Canada and intend to return home in the future. 

While the majority of the Court of Appeal in Frank agreed that the above provisions of the CEA violated section 3 of the Charter of Rights and Freedoms, it found that the arbitrary five-year rule and denial of the right to vote was justified, because the Canadian expatriates would not be affected by the actions and decisions of Parliament as non-residents in Canada and this would “erode the social contract and undermine the legitimacy of the laws.”

The court’s decision in Frank is both unreasonable and unsupportable. The court has effectively disenfranchised over a million Canadians and created a secondary class of citizenship. This is all the more upsetting when considering that, according to the law as it stands, some citizens are considered to be more Canadian than others by virtue of whom they work for. This is contrary to the Charter, which provides an unqualified right to vote to all Canadian citizens.

Justice Laskin wrote a scathing dissent in the Frank decision identifying its numerous weaknesses, including that: 1) the “social contract” argument had never been raised before the trial judge for consideration; 2) the legislators who created the five-year rule never once considered its purpose to be for the “preservation of the social contract”; 3) Canadian residence is not a qualification for entitlement to vote in section 3 of the CEA; 4) many non-residents are already entitled to vote under the CEA (i.e. the social contract argument is flawed); 5) many non-residents are still bound by Canadian laws (i.e. with respect to tax, property, income and banking) and therefore participate in the social contract; and 6) many non-residents still have family in Canada and are, or will be, affected by Parliament’s decisions in the future. 

In essence, Justice Laskin found that the infringement on the right of Canadian expatriates to vote did not have a constitutionally valid purpose or objective and could not be justified as being rationally connected to the purpose of the legislation, minimally impairing to the rights of citizens, or having a benefit (to society) that outweighs the harm (of impinging on a fundamental freedom).

In addition to the above weaknesses, the majority of the Court of Appeal in Frank misconstrued the Supreme Court of Canada’s decision in Sauvé v. Canada, which is the leading case that provides for our untrammelled right to vote as citizens. In Sauvé, the Supreme Court of Canada struck down restrictions on the right to vote of Canadians who had been incarcerated for two years or more, regardless of whether or not those individuals had broken the “social contract.” The court made it abundantly clear that the right to vote will be protected at all costs because it is fundamental to our democracy and cannot be lightly set aside. It is difficult to understand how the Court of Appeal relied on Sauvé to support its argument that expatriates should not be permitted to vote in order to protect the social contract.

This decision is expected to be appealed to the Supreme Court of Canada, where Canada’s top court will hopefully set the record straight once again on the fundamental right of all Canadians to vote.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.

Priya Sarin

Priya Sarin

Priya Sarin is a contributor to rabble’s Pro Bono column. She is a lawyer with the Toronto firm Iler Campbell, where she practices in the areas of civil litigation, labour and employment, and...