On March 21, the Supreme Court of Canada heard the appeal Gillian Frank et al v Attorney General of Canada, which challenged the Canada Elections Act for violating Section 3 of the Charter. The Charter guarantees, “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.”
The challenged provisions of the Elections Act prohibits Canadian citizens who have lived abroad for more than five years from voting in a federal election. The Attorney General concedes this is a violation of Canadian expats’ right to vote, but submits it can be saved as a reasonable limit under Section 1 of the Charter.
To uphold a Charter violation under Section 1, the government must first prove the legislation has a pressing and substantial objective that is rationally connected to the violation. This step of the justification analysis is particularly at issue in this appeal.
At the Ontario Court of Appeal, the Attorney General raised in oral arguments the purpose of “upholding the social contract” to justify the limit. The majority accepted this purpose, however Laskin JA in dissent acknowledged there was no evidentiary basis for this purpose. He writes, “Indeed, in all of the material filed by the Attorney General on the application, I cannot find a single reference to this so-called social contract.” The Section 1 analysis is an essential step of the Charter framework, and must be applied rigorously to ensure Canadians rights are respected. In Sauvé, former Chief Justice McLachlin stated a limitation on the right to vote, which is essential to our democratic system, may only be permitted if it meets a “stringent justification” burden. Justice Laskin found this burden could not be met with the social contract purpose.
The Social Contract is a political doctrine which proposes “the quid pro quo for voting [is] being required to obey the laws of Canada.” In this appeal, the Appellant submits the Attorney General is using Section 1 to redefine the right to vote. The only limitation in the Charter is citizenship and to apply a “quid pro quo” purpose of social contract, changes the nature of this right.
The Appellant further submits there is no pressing and substantial objective, because there is no harm the legislation is attempting to address. Non-resident voting has been in place historically in Canada, and there are exceptions enumerated in the Elections Act to allow certain classes of non-residents to vote. There is framework in place to allow non-resident voters and no evidence of harm from these citizens voting.
This appeal is an opportunity for the Supreme Court to reaffirm the role of Section 1 in a Charter violation, and to hold the government to the standard of justification that has already been enumerated in Supreme Court jurisprudence.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.