Frank v. Canada (Attorney General)

Frank v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2019-01-11
Neutral citation
2019 SCC 1
Report
[2019] 1 SCR 3
Case number
36645
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Ontario
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3
Appeal Heard: March 21, 2018 Judgement Rendered: January 11, 2019 Docket: 36645
Between:
Gillian Frank and Jamie Duong
Appellants
and
Attorney General of Canada
Respondent
- and -
Attorney General of Quebec, Canadian American Bar Association, Canadian Expat Association, David Asper Centre for Constitutional Rights, Canadian Civil Liberties Association, Chinese and Southeast Asian Legal Clinic and British Columbia Civil Liberties Association
Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 83)
Wagner C.J. (Moldaver, Karakatsanis and Gascon JJ. concurring)
Concurring Reasons: (paras. 84 to 110)
Rowe J.
Joint Dissenting Reasons: (paras. 111 to 173)
Côté and Brown JJ.
Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3
Gillian Frank and
Jamie Duong Appellants
v.
Attorney General of Canada Respondent
and
Attorney General of Quebec,
Canadian American Bar Association,
Canadian Expat Association,
David Asper Centre for Constitutional Rights,
Canadian Civil Liberties Association,
Chinese and Southeast Asian Legal Clinic and
British Columbia Civil Liberties Association Interveners
Indexed as: Frank v. Canada (Attorney General)
2019 SCC 1
File No.: 36645.
2018: March 21; 2019: January 11.
Present: Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Right to vote — Residence — Canada Elections Act denying right to vote in federal elections to Canadian citizens residing abroad for five consecutive years or more — Attorney General of Canada conceding infringement of right to vote — Whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1 , 3 — Canada Elections Act, S.C. 2000, c. 9, ss. 11 (d), 222 .
The combined effect of ss. 11 (d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more the right to vote in a federal election unless and until they resume residence in Canada. The constitutionality of these provisions was challenged by two non‑resident Canadian citizens, who applied for a declaration that their right to vote entrenched in s. 3 of the Charter was infringed, and that the impugned provisions were unconstitutional. The application judge agreed, found that the impugned provisions could not be saved under s. 1 of the Charter , and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal. Although the Attorney General of Canada conceded that the impugned provisions breach s. 3 of the Charter , the violation of s. 3 was found to be justified.
Held (Côté and Brown JJ. dissenting): The appeal should be allowed. Sections 222(1) (b) and (c), 223(1) (f) and 226 (f) of the Canada Elections Act are declared to be of no force or effect; the words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” are struck from s. 11(d) of the Act and are replaced with the words “an elector who resides outside Canada”; and the word “temporarily” is struck from ss. 220, 222(1) and 223(1)(e) of the Act.
Per Wagner C.J. and Moldaver, Karakatsanis and Gascon JJ.: As conceded by the Attorney General of Canada, the limit on the voting rights of long-term non-resident citizens breaches s. 3 of the Charter . This limit cannot be justified under s. 1 . In particular, the Attorney General of Canada has failed to show that limiting the voting rights of non-resident citizens is minimally impairing.
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. Intrusions on this core democratic right are to be reviewed on a stringent justification standard. Reviewing courts must examine the proffered justification carefully and rigorously rather than adopting a deferential attitude. Two central criteria must be met for a limit on a Charter right to be justified 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. The proportionality inquiry is both normative and contextual, and requires that courts balance the interests of society with those of individuals and groups.
The integrity of the justification analysis requires that the legislative objective be properly stated. The relevant objective is that of the infringing measure, not, more broadly, that of the provision. In this case, the Attorney General of Canada has centrally and consistently asserted that the voting restrictions in question advance the objective of maintaining the fairness of the electoral system to resident Canadians. This is a sufficiently important legislative objective to ground the s. 1 analysis, and it can be a pressing and substantial concern even if the measures taken to achieve that objective impair the democratic rights of other citizens. This objective is sufficiently precise to continue the justification analysis.
The question at the first step of the proportionality inquiry is whether the measure that has been adopted is rationally connected to this objective. In cases where such a causal connection is not scientifically measurable, one can be made out on the basis of reason or logic. In this case, it must be shown that the infringement of non-residents’ voting rights is rationally connected to the legislative objective of ensuring electoral fairness to resident voters. Here, there is no evidence of the harm that these voting restrictions are meant to address. No complaint has been identified with respect to voting by non-residents, and no evidence has been presented to show how voting by non-residents might compromise the fairness of the electoral system. Furthermore, it has not been definitively shown that a limit of any duration would be rationally connected to the electoral fairness objective. Overall, however, it is not necessary to come to a firm conclusion on this point in view of the result at the minimal impairment stage.
The second component of the proportionality test requires evidence that the measure at issue impairs the right as little as reasonably possible. In this case, the limit on voting by non-residents is not minimally impairing. 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. While it seeks to bar people from voting who lack a sufficient connection to Canada, no correlation has been shown between, on the one hand, how long a Canadian citizen has lived abroad and, on the other hand, the extent of his or her subjective commitment to Canada. Many non‑resident citizens maintain deep and abiding connections to Canada through family, online media and visits home, and by contributing taxes and collecting social benefits. Likewise, no correlation has been shown between residence and the extent to which citizens are affected by legislation. Non-resident citizens do live with the consequences of Canadian legislation: they are subject to Canadian legislation during visits home; Canadian laws affect the resident families of non-resident Canadians; some Canadian laws have extraterritorial application; government policies can have global consequences; and Parliament can alter the extent to which Canadian electoral legislation applies to non-resident citizens, which would make the constitutional right to vote subject to shifting policy choices.
At the final stage of the s. 1 analysis, it must be asked whether there is proportionality between the overall effects of the Charter -infringing measure and the legislative objective. In this case, any salutary effects of ensuring electoral fairness are clearly outweighed by the deleterious effects of disenfranchising non-resident Canadians who are abroad for five years or more. The benefits of the impugned legislation are illusory and speculative. It is unclear how the fairness of the electoral system is enhanced when long-term non-resident citizens are denied the right to vote. The deleterious effects on affected non-resident citizens, on the other hand, are serious. Denial of the right to vote, in and of itself, inflicts harm on affected citizens; proof of additional harm is not required. The disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity.
Per Rowe J.: There is agreement that the appeal should be allowed. The limit on voting in federal elections for citizens who have not been resident in Canada for five years or more constitutes an unjustified infringement of s. 3 of the Charter . However, any evaluation of this kind of limit should acknowledge the significance and centrality of residence to Canada’s system of representative democracy, and should not foreclose the possibility that residence requirements in another context might be constitutional.
Residence is significant because it establishes a connection to a particular electoral district and to the concerns of persons living there. While this aspect of Canada’s representative democracy is not constitutionally entrenched, residence has been historically and remains today more than just an organizing mechanism. It is foundational to Canada’s electoral system. However, its significance does not elevate residence to an inherent limit on the s. 3 right to vote.
Section 3 protects the right to vote, but it does not follow as a corollary that there is a right to vote in the constituency or province of one’s choosing. The provinces and territories have each crafted residence requirements that reflect the concerns and circumstances that are particular to their jurisdiction. The concession by the Attorney General of Canada that the impugned residence requirements infringe s. 3 does not prejudice provincial or territorial governments in arguing that their legislation does not do so. Different considerations will apply at the s. 1 analysis of any established or conceded breach of s. 3 at the provincial or territorial level, and evidence of the circumstances relating to the various residence requirements in each of the provinces and territories may well affect the analysis.
In this case, promoting electoral fairness for resident Canadians is a pressing and substantial objective, and the impugned measures are rationally connected to this objective. If the law’s legitimacy derives from the fact that those who are subject to it are the ones who indirectly create it, then it is unfair that individuals who are not subject to or affected by the law can decide for those who are. Long-term non-residents are likely to be less connected to any Canadian community. Individuals who have not lived in a constituency for over five years are less likely to be informed about the issues affecting that constituency, and long‑term non-resident voters who have no intention to return will not feel the impacts of federal laws and policies as they manifest themselves at the local level. Similarly, at the national level, those who have not lived in Canada for a long time are likely to be less connected to Canada and are affected by Canadian law to a far lesser degree than are resident Canadians.
However, the impugned measures ultimately do not withstand s. 1 scrutiny, as the 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. The primary salutary effect of the impugned measures is that long-term non-residents will not cast a decisive vote in a constituency in which they are not resident, and therefore, the local representative will not be selected (in part) by individuals from outside the constituency. However, this salutary effect has not been shown to be consequential: there is almost no evidence of the impact that long-term non-residents would or could have had either locally or nationally if permitted to vote, and the evidence that exists suggests that the impact would likely be negligible, since a very small number of Canadians living abroad who are currently eligible to vote choose to exercise that right. By contrast, the deleterious effects of the provisions on long-term non-residents are clear: they cannot vote. While they may not feel the local consequences of particular federal policies in the constituencies in which their votes would be counted, they stand nonetheless to be affected by certain federal laws and policies. Furthermore, the right to vote is not merely instrumental. Denying long-term non-residents the right to vote denies them the opportunity to participate, through their vote, in the formation of policy and the functioning of public institutions.
Per Côté and Brown JJ. (dissenting): The appeal should be dismissed. The non-resident voting restriction represents a reasonable limit on the right to vote under s. 3 of the Charter .
The fundamental point of disagreement with the majority lies in the proper judicial approach to the limitations analysis under s. 1 of the Charter . No right is absolute, including Charter rights such as the s. 3 right to vote. However, to speak of an “infringement” based solely on the fact that an impugned measure imposes a limit on a Charter right distorts the s. 1 analysis. The Charter cannot and should not be read so as to ever allow for justified infringements. The text of s. 1 speaks not of reasonable and demonstrably justifiable infringements, but of reasonable and demonstrably justifiable limits. A reasonable limit is inherent in the right itself, shaping the right’s outer boundaries. A right is infringed only where the right, as reasonably limited, is breached; as such, an “infringement” is a limit that is not justified. A conceptually sensible and textually faithful account of the s. 1 analysis thus properly focuses on whether a limit on a Charter right is justified. The issue presented by this appeal, then, is not whether the limit to the right to vote effected by the restriction on long-term non-resident voting justifies an infringement of s. 3 , but whether that limit is unreasonable, such that s. 3 is infringed.
The first step in the limitations analysis is to identify the objective behind the impugned measure and determine whether it is sufficiently important to justify the limit on a Charter right. Identifying the objective of a rights-limiting measure enacted by a legislature raises the methodological difficulty that the objective may not be immediately apparent. The difficulty is augmented where the impugned limitation arises by the absence of legislative action. Context — being both the present and past state of the law — is essential to the proper characterization of the objective. However, there should be some circumspection in relying upon parliamentary debates to identify the legislative objective of a provision, as the intent of particular members of Parliament is not the same as the intent of Parliament as a whole.
Here, there is a clear and readily discernable purpose behind the legislative design as a whole: Parliament sought to privilege a relationship of some currency between electors and their communities. This objective is sufficiently pressing and substantial to survive scrutiny under s. 1 . 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. Parliament is permitted, within limits, to shape the scope of voting rights under s. 1 . While most Charter rights are negative in the sense that they preclude the state from acting in ways that would impair them, the right to vote is a positive entitlement. It requires legislative specification in order for the right to be operative. Limits to the right to vote can be justified, because some specification of the right to vote (whether to account for age, or the currency of relationship between electors and the communities they represent) is necessary. As well, the Act contains a range of restrictions on voting — including withholding the vote from Canadian citizens who have never before lived in Canada and Canadian citizens under the age of 18 — which are no less the product of principled and unavoidably philosophical reasoning than is the long-term non-resident restriction. The limitations analysis must be flexible enough to account for Parliament’s ability to legislate in pursuit of philosophical, moral or otherwise normative considerations. The appropriate inquiry in limitations analysis is, therefore, not whether Parliament’s legislative objective rests on such considerations, but whether the objective that it pursues is pressing and substantial.
In this case, the restriction at issue is a residence requirement. Residence has been described as a fundamental requirement of the right to vote. While citizenship is a necessary requirement to vote, it is therefore not the only constitutionally permissible limit. Citizenship is a status. It does not itself indicate a relationship of any currency to a particular Canadian community. Parliament, not unreasonably, deemed residence or recent residence to be indicative of this relationship. The fact that the Act includes certain exceptions to the residence rule supports the notion that a relationship of currency is essential. Preserving a relationship of currency between electors and their communities by limiting long‑term non-resident voting ensures reciprocity between exercising the right to vote and bearing the burden of Canadian laws. The reciprocity principle justifies limiting non-resident voting precisely because long-term non‑residents are not generally subject to Canadian laws. It is unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district. Preserving the relationship between electors and their communities through limits on long-term non-resident voting also protects the integrity of the Canadian electoral system, which is founded on geographical representation. The s. 3 voting right is premised upon electors voting for a representative of their community. This regional structure must therefore inform any consideration of the electoral system, and Canadians’ participation therein. Limiting long-term non-resident voting ensures that the electors residing in a particular constituency, who share a community of interests that is typically derived at least in part from geographical proximity, retain the power to decide for themselves who would best advance those shared interests on their behalf in the House of Commons.
The second question in the limitations analysis asks whether the means that Parliament selected to pursue its objective are proportionate to the rights limitation — i.e., whether the measure is rationally connected to the objective; whether the measure minimally impairs a claimant’s Charter rights; and whether there is proportionality between the effects of the measure and the objective. The inquiry is not to ask what the Court prefers, but whether the limit was one that Parliament could reasonably impose. This is particularly so in the case of a challenge to Canada’s election laws, in respect of which the Court has previously held that a natural attitude of deference is required. In this case, the means by which Parliament chose to pursue its objective are proportionate. A five‑year non-resident cut‑off was a reasonable and constitutionally permissible demarcation. The measure is rationally connected to the objective of preserving a relationship of currency between electors and their communities because it logically distinguishes short-term from long‑term non-residents. Five years corresponds to the maximum length of a Parliament, thereby ensuring that all non-residents can vote in at least one election after leaving Canada, and it is sufficiently long to permit students who travel abroad to study to complete their programs without foregoing the ability to vote. The limit is also minimally impairing because, on balance, a five‑year time period falls within the range of reasonable options that were open to Parliament and within the range of limits adopted by other internationally respected liberal democracies sharing Canada’s parliamentary framework. Opening the vote to long-term non‑residents would not be an example of progressive enfranchisement; rather, it would be a regressive development, undermining the longstanding and entirely salutary practice in Westminster parliamentary democracies of privileging local connections in deciding who may elect local representatives.
In the final balancing, the salutary effects of preserving the integrity of Canada’s geographically based electoral system and upholding a democratically enacted conception of the scope of the right to vote in Canada are significant. The deleterious effect of denying some citizens the right to vote is not insubstantial, but it is tempered by the fact that the restriction is reversible rather than permanent, as 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 deleterious effects of the limit are therefore of less significance, and are outweighed by the salutary effects.
Cases Cited
Cited by Wagner C.J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; distinguished: Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76; explained: Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; referred to: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Vriend v. Alberta, [1998] 1 S.C.R. 493; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, [2017] 1 S.C.R. 93; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Zundel, [1992] 2 S.C.R. 731; Storey v. Zazelenchuk (1984), 36 Sask. R. 103; Reference Re Yukon Election Residency Requirements (1986), 1 Y.R. 23; Anawak v. Nunavut (Chief Electoral Officer), 2008 NUCJ 26, 172 A.C.W.S. (3d) 391.
Cited by Rowe J.
Distinguished: Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; considered: Reference re Yukon Election Residency Requirements (1986), 1 Y.R. 23; referred to: Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912.
Cited by Côté and Brown JJ. (dissenting)
Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 453; Bracken v. Niagara Parks Police, 2018 ONCA 261, 141 O.R. (3d) 168; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Heywood, [1994] 3 S.C.R. 761; Ruparel v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 615; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; R. v. Morgentaler, [1993] 3 S.C.R. 463; R. v. Butler, [1992] 1 S.C.R. 452; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527.
Statutes and Regulations Cited
Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Canada Elections Act, S.C. 2000, c. 9, ss. 3 , 6 , 8 , 11 (d), 127 , 191 (d), 220 , 222 , 223(1) (e), (f), 226 (f), Part 11.
Canadian Charter of Rights and Freedoms, ss. 1 , 3 , 33 .
Citizenship Act, R.S.C. 1985, c. C‑29, s. 3 .
Constitution Act, 1867 , preamble, ss. 21 , 22 , 37 to 40 , 52 , 69 to 72 .
Constitution Act, 1982, s. 52 .
Dominion Elections Act, S.C. 1920, c. 46.
Election Act, R.S.O. 1990, c. E.6, s. 15(1.1).
Election Act, R.S.Q., c. E‑3.3, s. 1.
Electoral Boundaries Readjustment Act, R.S.C. 1985, c. E-3 .
Nunavut Elections Act, S. Nu. 2002, c. 17, ss. 4(12), 7(1).
Patent Act, R.S.C. 1985, c. P‑4 .
Authors Cited
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APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J. and Laskin and Brown JJ.A.), 2015 ONCA 536, 126 O.R. (3d) 321, 338 O.A.C. 218, 388 D.L.R. (4th) 1, 340 C.R.R. (2d) 323, [2015] O.J. No. 3820 (QL), 2015 CarswellOnt 10870 (WL Can.), setting aside a decision of Penny J., 2014 ONSC 907, 119 O.R. (3d) 662, 372 D.L.R. (4th) 681, 310 C.R.R. (2d) 17, [2014] O.J. No. 2098 (QL), 2014 CarswellOnt 5850 (WL Can.). Appeal allowed, Côté and Brown JJ. dissenting.
Shaun O’Brien and Amanda Darrach, for the appellants.
Sean Gaudet and Gail Sinclair, for the respondent.
Jean-Vincent Lacroix and Dominique A. Jobin, for the intervener the Attorney General of Quebec.
Bradley E. Berg and Max Shapiro, for the intervener the Canadian American Bar Association.
Sean Sutherland and Colin Feasby, for the intervener the Canadian Expat Association.
Louis Century and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.
Mark J. Freiman and Jameel Madhany, for the intervener the Canadian Civil Liberties Association.
Avvy Yao-Yao Go, for the intervener the Chinese and Southeast Asian Legal Clinic.
Brendan van Niejenhuis, Michael Sobkin and Stephen Aylward, for the intervener the British Columbia Civil Liberties Association.
The judgment of Wagner C.J. and Moldaver, Karakatsanis and Gascon JJ. was delivered by
The Chief Justice —
I. Overview
[1] Voting is a fundamental political right, and the right to vote is a core tenet of our democracy. Its primacy is entrenched in s. 3 of the Canadian Charter of Rights and Freedoms , 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.” Any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification.
[2] Canada’s history has been one of progressive enfranchisement. The right to vote in federal elections was originally restricted to property-owning men aged 21 or older, but the franchise has gradually been extended to include almost all citizens aged 18 or older. Women, racial minorities, individuals formerly described as having a “mental disease”, penitentiary inmates, and Canadian residents living abroad in service of Canada’s armed forces and public administration were once excluded but now have the right to vote.
[3] This case calls into question one of the last restrictions on the right to vote in federal elections: residence. Canadian citizens who reside abroad for less than five consecutive years and who intend to return to Canada maintain their right to vote in Canadian federal elections. But once non-resident citizens have lived abroad beyond that five-year period, they are disenfranchised.
[4] The respondent, the Attorney General of Canada (“AGC”), concedes that the limit on the voting rights of non-residents breaches s. 3 of the Charter . It follows that the central question in this appeal is whether this is a reasonable limit that can be demonstrably justified under s. 1. I conclude that it cannot. The vague and unsubstantiated electoral fairness objective that is purportedly served by denying voting rights to non-resident citizens simply because they have crossed an arbitrary five-year threshold does not withstand scrutiny.
[5] In particular, the AGC has failed to show that limiting the voting rights of non-resident citizens is minimally impairing. 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. It is also clear that the measure improperly applies to many individuals with deep and abiding connections to Canada and to Canadian laws, and that it does so in a manner that is far broader than necessary to achieve the electoral fairness objective advanced by the AGC. The disenfranchisement of these citizens not only denies them a fundamental democratic right, but also comes at the expense of their sense of self-worth and their dignity. These deleterious effects far outweigh any speculative benefits that the measure might bring about.
[6] Accordingly, I would allow the appeal. The limit on the voting rights of non-residents violates s. 3 of the Charter and is not saved by s. 1.
II. Background
[7] This appeal stems from a challenge by two Canadian citizens, Dr. Gillian Frank and Jamie Duong, the appellants in this Court, of the denial of their right to vote in a Canadian federal election on the basis that they have lived abroad for longer than five years.
[8] Dr. Frank resides in the United States. He lived in Toronto until the age of 21. After having obtained a university degree in Canada, he was accepted on a full scholarship for graduate studies at Brown University in Providence, Rhode Island. He is currently completing post-doctoral studies and living in Princeton, New Jersey. Dr. Frank’s wife is also a Canadian citizen, and the members of his immediate family live in Toronto. He travels on a Canadian passport and is not entitled to vote in the United States. Dr. Frank has applied, as yet unsuccessfully, for work in Canada. He states that he would return to Canada without hesitation if he were to find a suitable academic position in this country.
[9] Mr. Duong was born in Montréal. He attended Cornell University in Ithaca, New York, where as a student he worked part time on campus at a job that he subsequently converted into a permanent position. He currently lives in Fairfax, Virginia. The members of his immediate family live in Montréal, and he visits Canada regularly. He also expects partial ownership of several family-owned properties in Canada to be transferred to him in the near future. Mr. Duong has applied, without success, for a suitable position in Canada. Like Dr. Frank, Mr. Duong expresses a desire to return to Canada should he find appropriate employment.
[10] Dr. Frank and Mr. Duong both tried to vote in the Canadian federal election in May 2011. Both were notified that they were not entitled to receive a ballot, because they had been residing outside Canada for more than five years. In response, they challenged the provisions of the Canada Elections Act, S.C. 2000, c. 9 (“Act ”), that deny them the right to vote — i.e., ss. 11 (d), 222(1) (b) and (c), 223(1) (f), 226 (f) and the word “temporarily” in ss. 220 , 222(1) and 223(1) (e). Specifically, the appellants argue 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 violate their rights under s. 3 of the Charter .
[11] The Act is a comprehensive statute which regulates federal elections in Canada. Its central purposes are to enfranchise all persons who are entitled to vote, and to protect the integrity of the democratic process (Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76, at paras. 35 and 38). In contrast to s. 3 of the Charter , which enshrines the constitutional right of every Canadian citizen to vote, the Act establishes specific rules with respect to qualification as an elector and to voting entitlements, as well as voting mechanisms, in pursuit of its broad enfranchising purpose.
[12] Under the Act , everyone who is a Canadian citizen and is 18 or older is qualified as an elector (s. 3 ). A person who is qualified as an elector is entitled to vote at the polling station for the polling division in which he or she is ordinarily resident (s. 6 ). In other words, a qualified elector is entitled to vote at the place in Canada where he or she ordinarily resides. This is known as the “residence requirement”.
[13] Despite the residence requirement, there is an existing legislative scheme which allows certain non-resident citizens to vote from abroad by means of a “special ballot” (s. 127 ). The special ballot procedure is the only mechanism by which citizens who do not reside in Canada can vote.
[14] Eligibility for voting by way of special ballot is set out in s. 11 of the Act , which reads:
Any of the following persons may vote in accordance with Part 11:
(a) a Canadian Forces elector;
(b) an elector who is an employee in the federal public administration or the public service of a province and who is posted outside Canada;
(c) a Canadian citizen who is employed by an international organization of which Canada is a member and to which Canada contributes and who is posted outside Canada;
(d) a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident;
(e) an incarcerated elector within the mean