Frank et al. v. Canada (Attorney General), (2015) 338 O.A.C. 218 (CA)

• Judge: Strathy, C.J.O., Laskin and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 06, 2015
• Jurisdiction: Ontario
• Citations: (2015), 338 O.A.C. 218 (CA);2015 ONCA 536

Frank v. Can. (A.G.) (2015), 338 O.A.C. 218 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.020

Gillian Frank and Jamie Duong (applicants/respondents) v. The Attorney General of Canada (respondent/appellant)

(C58876; 2015 ONCA 536)

Indexed As: Frank et al. v. Canada (Attorney General)

Ontario Court of Appeal

Strathy, C.J.O., Laskin and D. Brown, JJ.A.

July 20, 2015.

Summary:

Frank and Duong were Canadian citizens. They had lived and worked in New York State for most of their adult lives, but planned to return to Canada if they could find suitable work. They were not able to vote in the previous federal election because they had lived outside Canada for more than five years. They applied to declare unconstitutional the provisions of the Canada Elections Act (CEA) denying the vote to most citizens who had resided outside Canada for more than five years.

The Ontario Superior Court struck down the impugned provisions of the CEA because they violated s. 3 of the Charter, were not saved by s. 1, and were therefore of no force and effect. The Attorney General of Canada appealed.

The Ontario Court of Appeal, Laskin, J.A., dissenting, allowed the appeal. The majority of the court held that while the impugned legislation violated s. 3 of the Charter, it was saved by s. 1. Denying the right to vote to non-resident citizens whose absence exceeded five years was a reasonable limit on the Charter right.

Editor's Note: The Ontario Court of Appeal, per Sharpe, J.A., in a decision reported at (2014), 323 O.A.C. 73, dismissed the Attorney General's motion for a stay pending the outcome of this appeal.

Civil Rights - Topic 125

Voting and other democratic rights - Right to vote - Residency requirements - [See both Elections - Topic 2044 ].

Civil Rights - Topic 126

Voting and other democratic rights - Right to vote - Restrictions - [See both Elections - Topic 2044 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See both Elections - Topic 2044 ].

Elections - Topic 2044

Voters - Qualifications - Residence - An application was brought to declare unconstitutional the provisions of the Canada Elections Act (CEA) denying the vote to most Canadian citizens who had resided outside Canada for more than five years - The application judge struck down the impugned provisions of the CEA because they violated s. 3 of the Charter and were not saved by s. 1 - The Attorney General of Canada appealed - The Ontario Court of Appeal allowed the appeal - The court stated that "Canada's political system is based on geographically defined electoral districts. The citizens living in each riding elect a Member of Parliament to represent them. Their representative serves the interests of the community, speaks for the community and participates in making laws that affect the daily activities of all residents of the community. The electorate submits to the laws because it has had a voice in making them. This is the social contract that gives the laws their legitimacy. Permitting all non-resident citizens to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence for their own daily lives. This would erode the social contract and undermine the legitimacy of the laws. The legislation is aimed at strengthening Canada's system of government and is demonstrably justified in a free and democratic society. While the impugned legislation violates s. 3 of the Charter, it is saved by s. 1. Denying the right to vote to non-resident citizens whose absence exceeds five years is a reasonable limit on the Charter right" - See paragraphs 5 to 6.

Elections - Topic 2044

Voters - Qualifications - Residence - An application was brought to declare unconstitutional the provisions of the Canada Elections Act (CEA) denying the vote to most Canadian citizens who had resided outside Canada for more than five years - The application judge struck down the impugned provisions of the CEA because they violated s. 3 of the Charter and were not saved by s. 1 - The Attorney General of Canada appealed - The Ontario Court of Appeal allowed the appeal - The court held that while the impugned legislation violated s. 3 of the Charter, it was saved by s. 1 - Preserving the connection between the citizens' obligation to obey the law and their right to elect the lawmakers (strengthening the social contract) was a pressing and substantial objective - There was a rational connection between the maintenance of the social contract in a constituency-based system of representation and a limit on the rights of long-term non-resident Canadians to vote - The duration of a citizen's current absence was a reasonable means by which to differentiate between temporary non-residents and longer-term non-residents who had voluntarily removed themselves from the social contract - Because five years fell within the reasonable range of policy choices as the point at which to differentiate between temporary non-residents and longer-term non-residents who had voluntarily removed themselves from the social contract, the means chosen were minimally impairing - The salutary effects outweighed the legislation's deleterious effects - See paragraphs 76 to 160.

Cases Noticed:

Sauvé v. Canada (Chief Electoral Officer) et al., [2002] 3 S.C.R. 519; 294 N.R. 1; 2002 SCC 68, consd. [para. 1, footnote 1].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 38].

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; 306 N.R. 70; 176 O.A.C. 89; 2003 SCC 37, refd to. [para. 78].

Yukon Election Residency Requirements (1986), 1 Y.R. 23 (C.A.), refd to. [para. 80].

Mounted Police Association of Ontario et al. v. Canada (Attorney General) (2015), 466 N.R. 199; 328 O.A.C. 1; 2015 SCC 1, refd to. [para. 84].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 84].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 85].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 86].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 86].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 WA.C. 33; 2007 SCC 12, refd to. [para. 89].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 103].

Storey v. Zazelenchuk (1985), 36 Sask.R. 103 (C.A.), refd to. [para. 123].

Anawak v. Nunavut et al., [2008] Nunavut Cases Uned. 26; 2008 NUCJ 26, refd to. [para. 123].

Shindler v. United Kingdom, [2013] ECHR 19840/09, refd to. [para. 125].

Hilbe v. Liechtenstein, [1999] VI E.C.H.R. 453, refd to. [para. 125].

Toronto Star Newspapers Ltd. et al. v. Canada et al., [2010] 1 S.C.R. 721; 402 N.R. 206; 482 A.R. 66; 490 W.A.C. 66; 263 O.A.C. 4; 2010 SCC 21, refd to. [para. 130].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 133, footnote 8].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33, refd to. [para. 133, footnote 8].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 134].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 154].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 159].

Kaiman Estate v. Graham Estate (2009), 245 O.A.C. 130; 2009 ONCA 77, refd to. [para. 194].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 196].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 3]; sect. 3 [para. 1].

Canada Elections Act, S.C. 2000, c. 9, sect. 11(d) [para. 19]; sect. 127 [para. 18]; sect. 222(1) [para. 21]; sect. 222(2) [para. 22]; sect. 223(1)(e) [para. 24]; sect. 226(f) [para. 26]; sect. 227, sect. 228, sect. 229 [para. 25].

Authors and Works Noticed:

Bauböck, Rainer, Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting (2006-2007), 75 Fordham L. Rev. 2393, generally [para. 253].

Canada, Elections Canada, Completing the Cycle of Electoral Reforms: Recommendations from the Chief Electoral Officer of Canada on the 38th General Election (2005), generally [para. 213].

Canada, House of Commons Standing Committee on Procedure and House Affairs, Improving the Integrity of the Electoral Process: Recommendations for Legislative Change (2006), generally [para. 214].

Canada, Privy Council Office, White Paper on Election Law Reform (1986), generally [para. 209].

Canada, Royal Commission on Electoral Reform and Party Financing (Lortie Commission), 1991 Report, Reforming Electoral Democracy, generally [paras. 210, 211].

Currie, John H., Public International Law (2nd Ed. 2008), p. 335 [para. 137].

Kindred, Hugh M., and Saunders, Phillip M., International Law, Chiefly as Interpreted and Applied in Canada (7th Ed. 2006), pp. 567, 568 [para. 138, footnote 9].

Lenard, Patti Tamara, Residence and the Right to Vote (2015), 16:1 Journal of International Migration and Integration 119, pp. 120, 125 [para. 120].

López-Guerra, Claudio, Should Expatriates Vote? (2005), 13:2 Journal of Political Philosophy 216, pp. 220 [para. 110]; 226 [para. 151]; 232, 233 [para. 139]; 234 [para. 121].

McRuer, James C., Foreword to Boyer, J. Patrick, Political Rights: The Legal Framework of Elections in Canada (1981), generally [para. 121].

Owen, David, Resident Aliens, Non-resident Citizens and Voting Rights: Towards a Pluralist Theory of Transnational Political Equality and Modes of Political Belonging, in Calder, Gideon, Cole, Phillip, and Seglow, Jonathan, Citizenship Acquisition and National Belonging: Migration, Membership and the Liberal Democratic State (2009), generally [para. 253].

Rousseau, Jean-Jacques, The Social Contract (1762), in Barker, Sir Ernest (Ed.), Social Contract: Essays by Locke, Hume, and Rousseau (1980) 167, pp. 203-204 [para. 119].

Rubio-Marin, Ruth, Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants (2006), 81 N.Y.U. L. Rev. 117, generally [para. 253].

Counsel:

Peter M. Southey, Gail Sinclair and Peter Hajecek, for the appellant;

Shaun O'Brien and Amanda Darrach, for the respondents;

Alessandra Nosko, for the intervener, Chief Electoral Officer;

Mark J. Freiman and Jameel Madhany, for the intervener, Canadian Civil Liberties Association;

Brendan van Niejenhuis and Justin Safayeni, for the intervener, British Columbia Civil Liberties Association.

This appeal was heard on January 6, 2015, before Strathy, C.J.O., Laskin and D. Brown, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was released on July 20, 2015, including the following opinions:

Strathy, C.J.O. (D. Brown, J.A., concurring) - see paragraphs 1 to 160;

Laskin, J.A., dissenting - see paragraphs 161 to 254.