On January 11th 2019, the Supreme Court of Canada sent out a clear message: Canadian citizenship is equal and restrictions to Canadian democracy creating a form of second-class citizenship will not be tolerated.
Before Friday, Canadian citizens who had been residing outside of Canada for over 5 consecutive years or had no intention to return to Canada were considered “non-resident” electors and under the Canada Elections Act. They did not have the right to vote in Canadian elections. There were some exceptions to this rule, members of the military and government employees posted in other countries could continue to participate in Canadian democracy. For many Canadians living abroad who did not find themselves within the mentioned exception this was seen as quite the insult. Many Canadians living abroad continue to hold employment, family, and social ties to Canada and felt that it was unfair that in spite of their Canadian citizenship and strong connection to the country they were unable to benefit from Section 3 of the Canadian Charter of Rights and Freedoms, which guarantees them a fundamental democratic right to vote in a general federal or provincial election.
Two Canadians who were affected by this rule in the Canada Elections Act were Gill Frank and Jamie Duong. Dr. Frank and Mr. Duong were denied the right to vote in the 2011 federal election. Both individuals mentioned had been living the United States for employment purposes and had expressed their desire and willingness to return to Canada if they could find suitable jobs. Both Mr. Duong and Dr. Frank challenged the rule that prevented them from voting. They argued that the rule breaches section 3 of the Canadian Charter of Rights and thus it is unconstitutional.
This case was discussed at the Supreme Court of Canada where the Attorney General, representing the federal government, agreed with the appellants that the rule in the Canada Elections Act does in fact breach section 3 of the Canadian Charter of Rights and Freedoms. However, in Canadian law Charter rights may be breached if they are justified under section 1 of the Charter.
There is a well-established process that Canadian courts will follow when deciding whether a law that breaches the Charter is justified under section 1. The court will examine whether the law has a “pressing and substantial objective.” To assess this the courts will weigh the importance of the purpose of the law. If courts find that the purpose is indeed pressing and substantial, then they will decide whether it is “proportionate.” To make this decision the court will balance the purpose of the law with how the law goes about achieving that purpose. For a rule to be proportionate it must fulfill three criteria. First, it must be rationally connected to Parliament’s purpose. Second, it has to provide as little impairment to the charter right as possible. Lastly, it has to properly balance the positive and negative effects.
In Frank v. Canada (Attorney General), the Supreme Court embarked on this analysis. The majority of the court decided that the pressing and substantial objective requirement was fulfilled as fairness to voters living in Canada and fairness in elections are sufficiently important objectives. The second element of the analysis however, was not met. The Supreme Court did not believe that the rule was proportionate. According to the majority, the rule’s broad reach rendered more harm than necessary to Canadian citizens because it restricted those who had strong ties to Canada and would be affected by the legislations and policies adopted, from voting. Consequently, this didn’t encourage the purpose of electoral fairness. The majority also said that the rule’s negative effects outweighed its positive ones.
In response to the reasoning found in this analysis, the attorney general contented that the restrictions are justified because the right to vote should be reserved for Canadians who are most affected by Canadian laws and policies and who are actually forced to act in accordance to them. However, as Judge Wagner, eloquently said, “The disenfranchisement of these citizens not only denies them a fundamental democratic right, but also comes at the expense of their sense of self-worth and their dignity.” Canadians who have chosen to live abroad continue to pay tax on any income they may generate in Canada. Additionally, many of these Canadians have families who continue to live in Canada. Often these non-resident Canadians continue to be subject to Canadian laws that apply to them regardless of their location like rules relating to electoral advising and campaign financing and will be subject to all Canadian laws when they choose to return home. It would be a gross injustice to deny these people who are deeply affected by Canadian laws the right to participate in Canadian democracy.
The Supreme Court of Canada has declared the provisions within the Canada Elections Act restricting some Canadians the right to vote as unconstitutional. This decision carries a very important message, the right to vote is not a privilege or something that must be earned. The right to vote is a fundamental right that will be accorded to all Canadians regardless of their location.
This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.