THE Supreme Court of Canada on Friday released its decision in Frank and Duong v. Canada (Attorney General), a case challenging the constitutionality of parts of the Canada Elections Act that deny many Canadian citizens the right to vote in federal elections if they have lived outside of Canada for more than five years. Last month, the federal government repealed the law that restricts voting to non-residents.
The decision found that the restriction of voting rights for expat citizens unjustifiably violated section 3 of the Canadian Charter, and ruled that the provisions – which had been in force until recently – should be struck down. A majority of judges found that there was simply no evidence to show that non-resident voting compromised electoral fairness. As the majority wrote: “[t]he right to vote is a fundamental democratic right, not a mere privilege,” which cannot be denied to Canadians who have decided to live abroad. The decision highlighted the global nature of modern society and the fact that many Canadians overseas have maintained very strong ties to the country.
The BC Civil Liberties Association (BCCLA) intervened in the case to argue that government interference with citizens voting rights should be strictly limited. The BCCLA submitted that, in this case, the government failed to identify any specific, concrete harm caused by expat citizens voting in Canadian federal elections. The BCCLA also argued that the government failed to provide any rational connection between its decision to limit fundamental democratic freedoms of Canadian citizens, and the objectives of its voter laws.
Kate Oja, counsel with the BCCLA, stated: “The decision reinforces the right to vote as a fundamental right and the cornerstone of democracy – not something that Canadians must earn from the government.”
The case was initially brought before the Ontario Superior Court by Gillian Frank and Jamie Duong – two Canadian citizens living in the United States who were prevented from voting in the 2011 federal election. Both men have resided outside of Canada for over five years but have maintained strong connections to Canada, returning to visit their families multiple times a year, and wishing to return to Canada should they find appropriate employment. The Ontario Superior Court found the impugned provisions of the Elections Act unjustifiably denied voting rights to Frank and Duong, and issued an immediate declaration of invalidity. The Ontario Court of Appeal overturned that decision, finding a breach of section 3 of the Charter but allowing the government’s appeal as a justifiable limit on the right to vote.
As of 2009, an estimated 2.8 million Canadians had lived abroad for over a year, and over a million non-resident Canadians were ineligible to vote because of the old law, in force until last month.
The Supreme Court’s Reasons for Judgment can be located here
The BCCLA’s factum can be located here
The BCCLA was represented by Brendan van Niejenhuis, Stephen Aylward, and Justin Safayeni of Stockwoods LLP in Toronto.