Ontario Civil

Constitutional Law

Limit on voting rights of non-resident citizens violates s. 3 of Charter but saved by s. 1

Right to vote is protected by s. 3 of Canadian Charter of Rights and Freedoms. Respondents, Canadian citizens who lived and worked in U.S., not able to vote because they lived outside Canada for more than five years. They claimed provisions of Canada Elections Act denying vote to most citizens who resided outside Canada for more than five years was unconstitutional. Application judge struck down impugned provisions, finding they violated s. 3 of charter. Appeal by Attorney General of Canada allowed. Canada’s political system is based on geographically defined electoral districts. Citizens elect Member of Parliament to serve interests of their community. Electorate submits to laws because it has voice in making them. This is the social contract that gives laws their legitimacy. Permitting non-resident citizens to vote would erode social contract. Attorney General conceded breach of s. 3 of charter. Real issue was whether limit on voting rights of non-resident citizens is reasonable and can be demonstrably justified. To be justified, objective of legislation must be pressing and substantial, means used to further objective must be proportionate i.e. rationally connected to objective and minimally impairing and proportionate in effect. Preserving connection between citizens’ obligations to obey law and right to elect lawmakers, strengthening social contract, is pressing and substantial, promoting faith in political institutions that enhance participation. By strengthening public confidence in laws, the legislation is consistent with principles and values of free and democratic society. Canadian citizens non-resident for five years largely not governed by Canadian legal system. Excluding them from franchise helps to strengthen social contract and enhance legitimacy of laws. Residence of elector provides subjective and objective connection between electorate and lawmakers, providing rational connection between maintenance of social contract in constituency-based system of representation and limit on rights of long-term non-resident Canadians to vote. Duration of absence is reasonable means by which to differentiate between temporary non-residents and longer-term non-residents who voluntarily removed themselves from social contract. Five years falls within reasonable range. Means chosen were minimally impairing. Salutary effects of legislation, solidification of bond between electorate and elected, are outweighed by deleterious effects. Impugned provisions violate s. 3 of charter but are saved by s. 1.

Frank v. Canada (Attorney General) (Jul. 20, 2015, Ont. C.A., G.R. Strathy C.J.O., John Laskin J.A., and D.M. Brown J.A., File No. CA C58876) Decision at 239 A.C.W.S. (3d) 909 was reversed.  255 A.C.W.S. (3d) 109.

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