Frank v Canada (Attorney General), 2019 SCC 1 (11 January 2019)
Non-resident Canadian citizens who had been residing outside of Canada for five or more consecutive years (Non-Residents) lost the right to vote in Canadian federal elections under provisions of the Canada Elections Act, S.C. 2000, c 9 (the Act). Two Non-Residents Gillian Frank and Jamie Duong (Appellants) challenged this under the Canadian Charter of Rights and Freedoms (the Charter) and ultimately succeeded as the infringements on their voting rights were held to be unconstitutional.
The Appellants in this case had lived abroad for over five years, thus excluding them from the right to vote in Canadian federal elections. Both had left Canada to pursue University education in America however had continued to have strong ties to Canada. The right to vote in Canada arises under s. 3 of the Charter. The Appellants applied for a declaration that their fundamental, democratic voting right had been violated and therefore the impugned provisions were unconstitutional. However, there is a mechanism to justify infringements of the Charter contained in s. 1.
The Attorney General of Canada (AGC) argued that the objective of the infringing provisions under the Act was to "preserve the integrity of the electoral system and ensure fairness to voters living in Canada". The Ontario Superior Court of Justice held that this objective was insufficient for justification under s. 1 of the Charter. The AGC successfully appealed the decision to the Ontario Court of Appeal, where the AGC conceded that its objective did infringe the Act's s. 3 voting rights but that this was a sufficiently "pressing and substantial objective" to be justified under s. 1 of the Charter. The Non-Residents appealed this decision to the Supreme Court of Canada.
Upon appeal from the Court of Appeal, the majority considered that a breach of s. 3 of the Charter, a "core tenet of Canadian democracy", could not be justified under s 1. As a result, subs. 222(1)(b) and (c), 223(1)(f) and 226(f) of the Act were declared to be of no force. The words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” were struck from s 11(d) of the Act and were replaced with “an elector who resides outside Canada” and the word “temporarily” was struck from ss. 220, 222(1) and 223(1)(e) of the Act.
Considerations for justification under s. 1 of the Charter
The justification analysis provided for under s 1 of the Charter requires that the legislative objective must be properly stated. This is not just a reference to the legislative provisions alleged to be infringing but a clarification of what the infringing measure is and what objective it seeks to procure. The AGC had outlined this as referred to in the facts above.
Infringements on the rights provided for under the Charter, must meet two central criteria before being justified under s 1.
Criteria 1: Firstly, the objective of the measure must be pressing and substantial.
The AGC's objective was of sufficient importance to attract the s 1 analysis and the Court stated that such a justification can be "pressing and substantial" for the purposes of s 1 even where the objective "impairs the democratic rights of other citizens".
Criteria 2: Secondly, the means by which the objective is furthered must be proportionate (ie balancing of the societal interests with those of the affected individuals).
This limb entails three steps of consideration:
Is the infringing measure, rationally connected to its objective?
It was necessary for the AGC to demonstrate that the infringement of Non-Residents’ voting rights was rationally connected to the legislative objective of ensuring electoral fairness to resident voters. However no harm or evidence was presented to evince how voting by non-residents might compromise the fairness of the electoral system.
Evidence is required that the infringing measure impairs the right as little as reasonably possible.
It was considered that the limit on voting by non-residents is not minimally impairing. Adding to this, the temporal aspect of 'five years' was not demonstrated to be a threshold that could respond to the problem maintaining "integrity of the electoral system and ensure fairness to voters living in Canada". It was too wide and would capture Non-Residents who may still have had a commitment to Canada. Commitments here were considered to "arise through family, online media and visits home, and by contributing taxes and collecting social benefits."
It must be asked whether there is proportionality between the overall effects of the infringing measure and the legislative objective.
Here, the effect of disenfranchising Non-Residents from their voting rights is not outweighed by ensuring electoral fairness, as the "fairness" that would arise from the infringing measure is mere speculation. The Court said that the former effect inflicts harm without proof of additional harm being required.
This case explores and affirms the recognition of voting rights as a fundamental human right upon which any infringement needs to be considered against the most rigorous standard. The Court said that "[t]he disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity." This statement highlights the severity of any impediments voting, and that any infringing measure should be highly scrutinised as part of a balancing act between sometimes competing objectives and interests.
The decision is available here.
Elizabeth Arms is a lawyer at Ashurst.