Denying long-term non-resident citizens the right to vote infringes their s. 3 Charter rights

Supreme court | Public Law | Elections | Voters

Applicants were two Canadian citizens who had been living in United States for more than five years for educational and employment reasons. Applicants had very strong connections to Canada. Applicants’ application for declaration striking down provisions of Canada Elections Act, extinguishing their right to vote through provision limiting exception to residence requirement to those absent from Canada for less than five years and intending to return to live in Canada, was granted. Crown’s appeal was allowed. Applicants appealed. Appeal allowed. Vague and unsubstantiated electoral fairness objective purportedly served by denying voting rights when non-resident citizens crossed arbitrary five-year threshold was not reasonable limit that could be demonstrably justified under s. 1 of Charter. Regardless of whether this type of limit could be rationally connected to objective of ensuring non-resident citizens had sufficient connection to Canada in terms of subjective commitment and extent to which they were affected by Canadian laws, limitation was not minimally impairing. There was little to justify choice of five years as threshold or to show how it was tailored to respond to specific problem. Measure applied to many individuals with deep and abiding connections to Canada in manner far broader than necessary to achieve electoral fairness objective. Disenfranchisement denied citizens fundamental democratic right and came at expense of their sense of self-worth and dignity, which deleterious effects far outweighed any speculative benefits that measure might bring about.

Frank v. Canada (Attorney General) (2019), 2019 CarswellOnt 154, 2019 CarswellOnt 155, 2019 SCC 1, 2019 CSC 1, Wagner C.J.C., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellOnt 10870, 2015 ONCA 536, G.R. Strathy C.J.O., John Laskin J.A., and D.M. Brown J.A. (Ont. C.A.).

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