(July 28, 2015) On July 20, 2015, in Frank v. Canada (Attorney General) (2015 ONCA 536, CANLII), the highest court of Ontario upheld the validity of a section of the Canada Elections Act that prohibits long-term Canadian expatriates from voting in federal elections. In a split decision, the justices of the Court of Appeal for Ontario overturned a Superior Court of Justice ruling, in which the judge had found that the restriction was unconstitutional. The Ontario court ruling effectively bars 1.4 million Canadian citizens from voting in the upcoming federal election. (Peter H. Russell & Semra Sevi, Reframing the Debate over Expat Voting, MACLEAN’S (July 22, 2015).)
Section 11(d) of the Canada Elections Act states that citizens having lived outside of Canada for more than five years are no longer eligible to vote in federal elections. (Canada Elections Act, S.C. 2000, c. 9, s. 11(d), Justice Laws website.) The restriction dates back to 1993, and the law provides for only a few specific exemptions from it, notably, for government officials and military personnel. (Frank v. Canada (Attorney General), paras. 16 & 19.) The restriction was tightened in 2007, when Elections Canada started to apply it more strictly, no longer accepting short visits as constituting the start of a new five-year period. (Colin Perkel, Long-Term Expats Don’t Have Right to Vote in Federal Elections, Court Rules, CBC NEWS.)
Court of First Instance Ruling
Two Canadian citizens who had lived outside of Canada for more than five years initiated the challenge to the Canada Elections Act in the Ontario Superior Court of Justice after being refused the right to vote in the last federal election. They argued that section 11(d) violated section 3 of the Canadian Charter of Rights and Freedoms by denying the right to vote to Canadian citizens abroad. (Frank v. Canada (Attorney General), para. 2.) Section 3 ensures the right to vote, which has been described by the Supreme Court of Canada as lying at the heart of Canadian democracy (Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, para. 1, Judgments of the Supreme Court of Canada website.) The Superior Court judge ruled in favor of the applicants, stating that the restriction was arbitrary and unconstitutional. The judge agreed with their contention that the conditions imposed on expats by section 11(d) were in violation of section 3 of the Canadian Charter of Rights and Freedoms. The judge pointed out that the applicants had strong ties to Canada and a vested interest in Canadian politics. According to his interpretation of section 3, the only requirement for the exercise of the right to vote is Canadian citizenship. (Frank v. Canada (Attorney General), paras. 31 & 32.)
Having determined that section 3 of the Charter was being violated, the judge found that the violation was not justified under its section 1. Section 1 allows for the violation of certain rights when it is justified in a “free and democratic society.” (Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.), s. 1, Justice Laws website.) In applying the Oakes test, which determines whether or not a law or a provision of law is justified under section 1, the judge found that section 11d failed the test. The violation of the fundamental right to vote could not be justified by “the vague assertions of unfairness and speculative concerns over electoral abuse” of the government, the judge stated. (Frank v. Canada (Attorney General), para. 48).
Ontario Court of Appeal Ruling
The split decision of the appeals court revolved around the notion of a “social contract,” on the basis of which the majority justified the violation of election rights under section 1 of the Charter. The social contract refers to the relationship between a Canadian citizen, his electoral riding (i.e., district), and his Member of Parliament. Members of Parliament are elected to represent the particular interest of their riding. As stated by the Court of Appeal, “the social contract is about reciprocity between civic rights and responsibilities. In the context of this case, it is founded on a mutuality between political rights and political obligations.” (Id. para. 94.)
Oakes Test Application
In applying the Oakes test to the Canada Elections Act, the majority of justices found that there was “a pressing and substantial objective” to section 11(d), which was “preserving the connection between citizens’ obligation to obey the law and their right to elect the lawmakers.” (Id. para. 93.) The two majority justices stated that section 11(d) was rationally connected to the accomplishment of this objective. They pointed out that the first instance judge had not considered the social contract, and that his judgment of the rational connection was tainted by the misconception that the law declares Canadian expats unworthy of the right to vote. (Id. para. 130.)
The appellant’s main argument is not that longer-term non-residents lack a sense of commitment to Canada. Rather, the legislative objective is to maintain the connection between the voters, the lawmakers and the laws. Non-residents are not directly ‘governed’ by Canadian laws. Once a citizen’s non-residence becomes long-term rather than temporary, it is reasonable for the government to place limits on that citizen’s entitlement to vote. That limit is important, but not because the longer-term non-resident is unworthy due to a lack of engagement in Canadian affairs. It is because the longer-term non-resident has voluntarily withdrawn from the social contract and has submitted him/herself to another political and legal order. (Id. para. 131.)
The Court rejected the claim that Canadian citizens abroad are subject to Canadian laws, stating that the extraterritorial application of Canadian laws is minimal and that most Canadian laws have no effect on them unless they return to Canada. (Id. paras. 137-138.)
On the question of minimal impairment, another criterion of the Oakes test, in this case, the minimal impairment of the right to vote, the justices found that “[b]ecause five years falls within the reasonable range of policy choices as the point at which to differentiate between temporary non-residents and longer-term non-residents who have voluntarily removed themselves from the social contract, the means chosen were minimally impairing.” (Id. para. 154.)
In connection with the Oakes test criterion of proportionate effects (the balancing of rights), in this case the balancing of the right to vote and the importance of the social contract, the two majority justices found that the salutary effects of protecting the social contract outweighed the violation of section 3 for Canadian expats.
In this case, the salutary effects of the legislation are the solidification of the bond between the electorate and the elected. The representative nature of our government is a core democratic principle. The legitimacy of elected representatives is strengthened by the fact that they are elected by, and are answerable to, those who live in the jurisdiction.
The deleterious effects [of the legislation] are measured. There is no outright ban on non-resident voting. … The right to vote is only denied to those who withdraw from the social contract by leaving Canada on a long-term basis. (Id. paras. 156-157.)
Justice John Larkin, the dissenting judge, was in agreement with the court of first instance. Larkin pointed out the absence of any mention of the “social contract” in the appellants first instance claim and questioned the right to raise an argument based on the social contract on appeal. (Id. para. 165.) Another key failing of the decision, according to the dissenting opinion, was that the objective of the law as proposed by the Attorney General and the majority was not proven to be the objective of the Parliament of Canada at the time of the law’s enactment. Lastly, Laskin found that the social contract argument could not justify what in his view was a violation by the Canada Election Act’s section 11(d) of the Charter of Rights and Freedoms. (Id. paras. 166-167.)
Prepared by Julia Heron, Law Library Intern, under the supervision of Tariq Ahmad, Senior Legal Research Analyst.