Frank v. Canada (Attorney General)
Between
Gillian Frank and Jamie Duong, Applicants (Respondents), and
The Attorney General of Canada, Respondent (Appellant)
Gillian Frank and Jamie Duong, Applicants (Respondents), and
The Attorney General of Canada, Respondent (Appellant)
[2015] O.J. No. 3820
2015 ONCA 536
Docket: C58876
Ontario Court of Appeal
G.R. Strathy C.J.O., J.I. Laskin and D.M. Brown JJ.A.
Heard: January 6, 2015.
Judgment: July 20, 2015.
Docket: C58876
Ontario Court of Appeal
G.R. Strathy C.J.O., J.I. Laskin and D.M. Brown JJ.A.
Heard: January 6, 2015.
Judgment: July 20, 2015.
(257 paras.)
Appeal From:
On appeal from the judgment of Justice Michael A.
Penny of the Superior Court of Justice, dated May 2, and amended May 15, 2014,
with reasons reported at 2014 ONSC 907.
Reasons for judgment were delivered by G.R. Strathy
C.J.O., concurred in by D.M. Brown J.A. Separate dissenting reasons were
delivered by J.I. Laskin J.A.
· G.R. STRATHY C.J.O.:--
A. INTRODUCTION
1 Section
3 of the Canadian Charter of Rights and Freedoms states that every Canadian citizen has the right to vote -- a right
the Supreme Court has described as lying at the heart of Canadian democracy.1 This appeal asks whether that right can be taken away from Canadian
citizens who have lived outside Canada for more than five years.
2 Gillian
Frank and Jamie Duong, the respondents, are Canadian citizens. They have lived
and worked in New York State for most of their adult lives, but plan to return
if they can find suitable work. They were not able to vote in the last federal
election because they had lived outside Canada for more than five years. They
brought an application in the Superior Court of Justice to declare
unconstitutional the provisions of the Canada Elections
Act, S.C. 2000, c. 9 ("CEA") denying the vote to most citizens2 who have resided
outside Canada for more than five years.
3 The
application judge held that Parliament cannot take away the voting rights of
non-resident Canadian citizens -- even long-term non- residents. He struck down
the impugned provisions of the CEA, because in his view they violated s. 3 of the Charter, were not saved by s. 1, and were
therefore of no force and effect.
4 I
would allow the appeal of the Attorney General of Canada. My reasons can be
summarized as follows.
5 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.
6 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.
7 I
will begin by explaining the factual and legislative background underlying this
appeal. I will then summarize the reasons of the application judge and the
positions taken by the parties in this court. Finally, I will analyze the
issues. The appellant acknowledges the impugned legislation breaches s. 3 of
the Charter, so the real
battleground of the appeal is the s. 1 analysis.
B. BACKGROUND
The affected population
8 In
2009, some 2.8 million Canadians, or 8% of the country's population, had lived
abroad for more than a year. Of those, about 1.4 million citizens of voting age
had been non-resident for more than five years. While some of those were public
servants, military personnel or diplomats who had special voting rights, it is
conceded that over one million Canadian citizens who have lived outside Canada
for more than five years have no voting rights as a result of the impugned
legislation.
9 The
evidence establishes that a very small percentage of non-resident citizens
affected by the impugned legislation take advantage of the right to vote. In
the last federal election, in 2011, only 6,000 non-resident votes were
recorded.3
Brief history of
residence as a voting requirement
10 Residence
has historically played a prominent role in defining eligibility to vote in
Canadian federal elections. At one time, actual physical presence in the
electoral district on polling day was required in order to vote. This strict
requirement was gradually relaxed for some members of the electorate. A desire
to accommodate soldiers posted abroad was a driving force behind many of the
reforms.
11 Beginning
in the early 1900s, soldiers and war correspondents engaged in active duty were
exempted from the residency requirement. In 1915, "postal voting" was
implemented to allow soldiers to cast their ballots if they were absent on
election day. In 1917, the residency exemption was widened by The Military Voters Act, 1917, S.C. 1917, c. 34, to permit voting by
all members of the military who were British subjects, regardless of their age,
gender or length of absence.
12 Advance
voting was introduced in 1920 for commercial travellers, railwaymen and
sailors. It was extended to members of the Royal Canadian Mounted Police and
the armed forces in 1934 and to military reservists in 1951. In 1945, proxy
voting was introduced for Canadians held as prisoners of war.
13 Similar
rights were gradually extended to public service employees and members of
military families stationed abroad. In 1960, advance voting rights became
available to all resident electors, if they swore they would be absent from the
polling division on election day. The oath requirement for advance voting was
removed in 1977.
14 In
1970, diplomats and other public servants posted outside Canada and their
dependants gained access to a form of remote voting through the special voting
rules in the CEA. Civilian
employees of the military, such as teachers and administrative support staff,
became eligible in 1977. This enabled these non-resident groups to vote by mail
using a "special ballot".
15 The
right of Canadian citizens to vote was enshrined in the Charter in 1982. It was not until 1993, however, that legislative changes
were made to facilitate voting by citizens who were temporarily residing
outside of Canada, regardless of their reason for non-residence.
16 In
1993, after deliberations by several parliamentary committees, a Royal
Commission on Electoral Reform and Party Financing and the recommendations of a
House of Commons Special Committee on Electoral Reform, Parliament introduced
sweeping changes to the CEA. Part
of this reform included extending the special voting rules to temporary
non-residents, who had been living outside Canada for less than five years and
who intended to return to Canada. This regime is described in greater detail in
the next section.
The current legislative
scheme
17 Part
1 of the CEA, entitled
"Electoral Rights", provides the basic rules for voting in Canada.
Canadian citizens 18 years of age or older are qualified electors (s. 3). They
are entitled to vote for a Member of Parliament for the electoral district in
which they ordinarily reside (s. 6).
18 Section
127 recognizes three methods of voting in federal elections:
in person at a polling
station on polling day;
in person at an advance
polling station during the period provided for the advance poll; or
by means of a special
ballot issued in accordance with Part 11. [Emphasis
added.]
19 This
appeal concerns the third method -- the special ballot voting procedure
referred to in s. 127(c). This allows eligible citizens to submit their special
ballot outside the polling district in which it will be counted. Eligibility
for this method of voting is defined in s. 11 of the CEA:
· Any of the following persons may vote in accordance with Part
11:
a Canadian Forces
elector;
an elector who is an
employee in the federal public administration or the public service of a
province and who is posted outside Canada;
a Canadian citizen who
is employed by an international organization of which Canada is a member and to
which Canada contributes and who is posted outside Canada;
a person who has been
absent from Canada for less than five consecutive years and who intends to
return to Canada as a resident;
an incarcerated elector
within the meaning of that Part; and
any other elector in
Canada who wishes to vote in accordance with that Part. [Emphasis added.]
20 Section
11(d) establishes the temporal limit on non-resident voting rights that is the
focal point in this appeal. Citizens who have been living outside Canada for
five years or more are not eligible to vote, unless they fall within one of the
other exceptions.4
21 Non-resident
citizens who are eligible to vote under s. 11 must apply and meet the
additional criteria prescribed in Part 11 of the CEA. Division 3 of Part 11, spanning ss. 220-230, deals specifically
with the "electors temporarily resident outside Canada" referred to
in s. 11(d). These provisions require the Chief Electoral Officer
("CEO") to maintain a register of electors who may access the special
ballot procedure. In order to qualify for inclusion on the register, non-resident
Canadians must file an application and meet the three criteria set out in s.
222(1). The citizen must be a person who:
at any time before
making the application, resided in Canada;
has been residing
outside Canada for less than five consecutive years immediately before making
the application; and
intends to return to
Canada to resume residence in the future.
22 Section
222(2) creates an exception to the five-year limit for various non- resident
citizens who are entitled to vote provided they previously resided in Canada
and intend to return to resume residence in the future. This exception applies
to any individual who is:
employed outside Canada
in the federal public administration or the public service of a province;
employed outside Canada
by an international organization of which Canada is a member and to which
Canada contributes;
a person who lives with
an elector referred to in paragraph (a) or (b); or
a person who lives with
a member of the Canadian Forces or with a person referred to in paragraph
191(d) [which describes: "a person who is employed outside Canada by the
Canadian Forces as a teacher in, or as a member of the administrative support staff
for, a Canadian Forces school."]
23 To
summarize, in order to vote, a non-resident citizen who does not fit within the
exceptions in s. 222(2) must: (a) have previously resided in Canada; (b) have
resided outside Canada for less than five years; and (c) have indicated an
intention to resume residence in Canada in the future.
24 The
non-resident citizen is entitled to select a place of residence for the purpose
of counting his or her vote. That place can be any one of: the person's last
place of ordinary residence in Canada; the place of ordinary residence of his
or her spouse, common law partner, other relative, or relative of the spouse or
common law partner; the place of ordinary residence of a person in respect of
whom the elector is a dependant; or the place of ordinary residence of a person
with whom the elector would live, but for his or her residing temporarily
outside Canada (s. 223(1)(e)).
25 Sections
227-229 describe the method of remote voting. The CEO mails a special ballot to
the non-resident's foreign address. The non-resident must return the ballot by
mail or other designated means and it will be counted as long as it arrives by
6:00 p.m., local time, on polling day.
26 A
non-resident's name is deleted from the register once he or she has resided
outside Canada for five consecutive years or more: s. 226(f).
The respondents
27 The
respondents are Canadian citizens who live and work in New York State. They
attended university in the U.S. and remained there to pursue careers in their
chosen professions.
28 Gillian
Frank was born in Toronto. He attended high school and completed undergraduate
studies in Canada and served in the Canadian Forces. At the time of this Charter application, he was 34 years old, had
been living in the U.S. for 13 years and was completing post-doctoral studies.
He has family in Toronto and he travels to Canada approximately four times each
year. He has not sought immigration status in the United States, other than on
a temporary basis, and is not entitled to vote in American elections. He has
paid U.S. taxes since 2001.
29 Jamie
Duong was born in Montreal and lived in Canada until grade 10 before attending
school in Vermont. After high school, he attended Cornell University, where he
now works. He has spent most of his adult life in the U.S. and has been
resident there since 2006. He is a U.S. citizen, pays U.S. taxes and votes in
U.S. elections. He does not file a Canadian tax return. He has family in
Montreal and he returns to Canada several times each year during the summer and
holidays.
30 The
respondents have expressed interest in returning to Canada if they can secure
employment in their fields. In the meantime, they wish to vote in Canadian
elections. They brought this constitutional challenge after discovering they
were disqualified from voting in the 2011 federal election, based on the
five-year limit in s. 222(1)(b).
C. THE DECISION OF THE APPLICATION JUDGE
31 After
noting the respondents' strong ties to Canada and their absence because of
employment, the application judge observed that "many Canadians living
abroad have strong connections to Canada and care deeply about the
country". He described the connections as both socio-cultural and
economic. He then summarized the legislative scheme and the history of
non-resident voting in Canada.
Breach of s. 3
32 The
application judge found the legislative restrictions on the voting rights of
non-residents breached s. 3 of the Charter. He held that s. 3 clearly contains "no limits on the right to
vote other than citizenship" and "[a]ny limitation on the scope of
the right ... constitutes a breach of s. 3 which must then be justified under
s. 1." He referred to Sauvé v. Canada (Chief
Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519
("Sauvé #2"), where
McLachlin C.J. stated at para. 11:
· I conclude that s. 3 must be construed as it reads, and its ambit
should not be limited by countervailing collective concerns, as the government
appears to argue. These concerns are for the government to raise under s. 1 in
justifying the limits it has imposed on the right.
33 He
observed that in spite of the long history of residence as an element of the
Canadian electoral process, the Charter makes citizenship the only requirement to vote. The framers of the Charter could easily have included residence
if it was meant to be an additional requirement, but did not.
The CEA does not identify residence as a qualification to vote and instead
uses residence as a "mechanism for regulating the voting process",
akin to the means of "regulating a modality of the universal
franchise" referred to by McLachlin C.J. at para. 37 of Sauvé #2. He rejected the Attorney General's
submission that the right could have internal limitations on the basis of
fairness to resident citizens.
34 The
application judge rejected the appellant's submission that "allowing
non-residents to vote is unfair to resident Canadians because resident
Canadians live here and are, on a day-to-day basis, subject to Canada's laws
and live with the consequences of Parliament's decisions" (paras. 86-90).
35 He
gave four reasons for rejecting this argument:
it was "precisely
the sort of 'countervailing collective concern' which cannot be used to limit
the ambit of a clearly articulated constitutional right";
non-residents live with
the consequences of the law because they frequently visit, have family here and
the laws may affect them in the future;
non-residents may be
subject to Canadian laws, even though the laws may not be capable of extra-
territorial enforcement against them; and
"the logic of the
[appellant's] argument would dictate that all non-resident Canadians should be
prohibited from voting, without exception. Non-resident voters are equally 'not
subject to Canada's laws' and could equally affect election outcomes in close
ridings whether they have been non-resident for four or six years."
36 He
concluded that the Charter
guarantee of the right to vote creates a protective umbrella to limit the power
of the government to take away the right to vote.
37 The
application judge distinguished residency requirements for provincial and
territorial elections, finding that non-residents of a province would not have
a sufficient attachment, whereas citizenship establishes the necessary
connection to Canada. He concluded that the impugned provisions designate
non-residents as unworthy of the franchise in a manner that violates s. 3.
Justification under
section 1
38 After
finding the impugned provisions infringe s. 3, the application judge proceeded
with an Oakes analysis to
determine whether the infringement is justified under s. 1: R. v. Oakes, [1986] 1 S.C.R. 103.
Pressing and
substantial objective
39 He
identified the two pressing and substantial objectives put forward by the
Attorney General of Canada as "fairness to resident voters" and
"concerns over electoral fraud." At the outset, he observed that
"the rhetorical nature of the government objectives ... render[ed] them
suspect" and "broad, symbolic objectives" were "inherently
problematic".
40 He
was troubled that substantive fairness was "almost always in the eye of
the beholder". He noted the low turnout from non-resident voters in prior
elections, which was "entirely dwarfed by the non-resident Canadian Forces
and incarcerated electors." He compared the fairness objective to an
argument that resident citizens would consider it unfair for incarcerated
electors to influence an election outcome, but held such stereotypes and vague
generalizations have been rejected by Canadian courts.
41 The
application judge found the second objective -- "concerns over electoral
fraud" -- to be speculative and without any evidentiary foundation. There
were no documented problems associated with non-resident voting on which to
base this objective.
42 Although
not inclined to view the objectives as pressing and substantial, he nevertheless
proceeded to the proportionality stage of the analysis to determine whether
they were in fact capable of justifying the infringement.
Proportionality
Rational connection
43 At
the rational connection stage, the application judge characterized the Attorney
General's argument as treating non-residents as "unworthy" because
having been away for more than five years they had lost their connection to
Canada. He considered that the government was attempting to protect the voting
rights of residents from being "de-valu[ed]" by the unworthy
non-residents. This, he said, was the same argument rejected in Sauvé #2 and it was inconsistent with s. 3 and
with the respect for personal dignity that lies at the heart of Canadian
democracy.
44 He
observed that the evidence showed that non-resident Canadians maintained
connections to Canada in a number of ways. Although non- residents would lose
their affinity to Canada over time, there was no rational connection between
this general trend and the five-year limitation imposed by the legislation.
More broadly, the Attorney General had not established a rational connection
between any temporal limit on non-resident voting rights and the objectives of
fairness and preventing electoral abuse.
Minimal impairment
45 The
application judge observed that the impugned provisions prevented informed and
connected citizens like the respondents from voting, while enfranchising
resident electors who may be uninformed and disinterested. As a result, it was
overbroad. Even if the provisions advanced the government objectives, they were
not minimally impairing because they created a blanket prohibition that failed
to account for exceptionally informed and connected non- residents like the
respondents. Further, the appellant had not established that a five-year
cut-off was a reasonable basis to separate the informed and connected from the
uninformed and unconnected.
46 The
application judge dismissed international comparisons, noting that Canada, as a
world leader in voter enfranchisement, had already taken a more liberal
approach to the voting rights of people with mental disabilities and prisoners.
47 Moreover,
he found less impairing means were available to achieve the government
objective of ensuring a sufficient connection to Canada. Specifically, the act
of voting itself is a "self-testing mechanism" to ensure non-
residents are sufficiently interested in and connected to Canada, given the
procedural steps and knowledge required by the process. Therefore, he concluded
the means failed the minimal impairment test.
Final balancing
48 The
application judge found that it was at this final stage that "the lack of
substantive evidence of any actual problem resulting from non-resident voting
comes home to roost." The vague assertions of unfairness and speculative
concerns over electoral abuse could not outweigh the substantial interference
with the rights of Canadian citizens to vote. The impact on Canadian elections
would be, at most, "slight". At the same time, the provisions
deprived citizens who cared deeply about Canada and lived abroad for legitimate
reasons from having a voice in Canadian political life. He concluded that the
importance of this fundamental right could not be ousted by the alleged
salutary benefits put forward by the Attorney General. Therefore, the impugned
provisions could not be saved by s. 1.
Remedy
49 As
a result, the application judge declared ss. 11(d), 222(1)(b) and (c),
223(1)(f), 226(f) and the word "temporarily" in ss. 220, 222(1) and
223(1)(e) to be of no force or effect; and read into s. 11(d) the words
"an elector who resides outside Canada".
50 On
June 23, 2014, Sharpe J.A. dismissed the appellant's motion for a stay pending
the outcome of this appeal: Frank v. Canada (Attorney
General), 2014 ONCA 485.
D. THE POSITIONS OF THE PARTIES
Appellant
51 The
appellant's primary position, and the one I will focus on, is that the
residency requirement fulfills the pressing and substantial objective of
preserving the social contract at the heart of Canada's system of
constitutional democracy. It ensures citizens are both subjectively connected
to Canada through their knowledge and affiliation and objectively connected
through holding citizenship responsibilities and duties to obey domestic laws.
The connection between having a voice in making the laws and being obliged to
obey them is what gives the laws legitimacy.
52 Limiting
the voting rights of non-residents is rationally connected to the diminished
connection non-residents have to Canada, both subjectively and objectively.
Absence from Canada attenuates a citizen's participation in the social contract,
as few Canadian laws apply extra-territorially.
53 Parliament
has extended the right to vote by mail to non-residents who intend to return to
Canada after a temporary absence of up to five years to resume their
obligations as citizens. It has also created exceptions for other individuals
who are reasonably presumed to be returning to Canada. These exceptions do not
undermine the rational connection, but instead demonstrate the means chosen are
minimally impairing. Many non-residents who fall within the exceptions
demonstrate their participation in Canada's social contract through committed
public service. International comparators verify that five years is a
reasonable temporal limit on non-resident voting rights.
54 Moreover,
the impugned measures do not permanently strip non-residents of the right to
vote. They only limit the right as long as those non- residents choose to live outside Canada. Residence, like
age, is a way of regulating the modality of voting and does not speak to
"worthiness". The five-year rule is therefore entitled to deference.
Five years corresponds to the maximum life of Parliament and is a reasonable
and minimally impairing temporal line for regulating the right to vote.
55 The
deleterious impact is mitigated by the likelihood that non-residents can
participate in the foreign polity. Further, the limitation is not permanent and
non-resident citizens may choose to return to Canada and regain the right to
vote.
Respondents
56 The
respondents defend the reasons of the application judge. They say the right to
vote is a fundamental right of citizenship, which is protected by the Charter and does not depend on residence.
Residence is not a primary component of the electoral system. It is simply an
organizational framework for the allocation of votes in that system. The
impugned legislation strips away the voting rights of the respondents,
committed and engaged citizens with strong connections to Canada.
57 The
respondents submit the vague and symbolic objectives advanced by the government
should be rejected. They argue that the government has failed to identify any
demonstrated problem with non-resident voting that could justify the
infringement. Moreover, the purported objective is undermined by its
unprincipled exceptions for other groups of non-residents.
58 At
the proportionality stage, they submit five years is an arbitrary limit with no
rational connection to the objective advanced by the appellant. They re- assert
the application judge's conclusion that the measures are overbroad by capturing
non-residents such as the claimants who maintain a strong connection to Canada.
Moreover, the measures are overly drastic, as the completion of the procedural
requirements for non-resident voting in itself evidences a sufficient
connection.
59 In
the final balancing, the impact on the voting rights of non-residents outweighs
the symbolic benefits advanced by the appellant. The measures leave
non-resident citizens with no voice in the direction of the country. In turn,
this has a serious deleterious impact on their dignity and belonging.
BCCLA
60 The
British Columbia Civil Liberties Association ("BCCLA") was granted
leave to intervene in this appeal as a friend of the court and limits its
submissions to the issues of pressing and substantial objective and rational
connection. It argues for a stringent justification standard requiring the
government objective to be directed at a concrete harm and supported by cogent
evidence. Abstract and rhetorical objectives cannot be used to insulate Charter breaches from judicial scrutiny and
evidence, not "common sense" or logical reasoning, must establish a
rational connection between the impugned legislation and its objective. It says
the appellant failed to demonstrate that the impugned legislation is directed
at any specific harm.
61 The
primary objective of "fairness to resident voters" is framed in vague
and abstract terms. Resident voters are not a vulnerable group in need of
protection. There is nothing inherently unfair about non-residents voting and
there is no evidence that resident voters share the appellant's view of any
unfairness in non-resident votes being counted. Further, the historical
evidence suggests that non-resident voter participation will be limited.
62 At
the rational connection stage, the BCCLA submits the application judge's
findings are entitled to deference. The application judge found non- residents
maintain connections to Canada and it is easy for them to stay informed about
Canadian politics.
63 Non-residents
do not withdraw from the fictitious social contract any more than prisoners.
Further, the appellant's proposition that non-residents are not subject to
Canadian laws is flawed. Parliament has complete jurisdiction to legislate
extra-territorially. Parliament has exercised this authority conservatively to
date, but this could change and the provisions prevent non- residents from
having a voice in that change. Therefore, there is no rational basis on which
to impose a temporal limit on the voting rights of non-resident voters.
CCLA
64 The
Canadian Civil Liberties Association ("CCLA") was also granted leave
to intervene in this appeal and limits its submissions to the role of equality
values in the final balancing of proportionality under Oakes.
65 The
CCLA asserts that Charter rights
must be read harmoniously with broader Charter values and the language of s. 3 -- extending the right to vote to
"every citizen" --
places equality at its core. It argues the legislation creates a distinction
that undermines the dignity, self-autonomy and worth of non-resident Canadians
based on an extraneous personal characteristic. Denying non- residents the
right to vote does not protect a modality of the right to vote, it sends the
message that non-residents do not deserve to vote. It creates a class of
approximately 1.4 million Canadian citizens who are treated differently based on
non-resident status.
66 Citizenship
and age are the only legitimate qualifications on the right to vote. The harm
to the s. 3 Charter rights of
non-residents, combined with the harm to equality values, outweighs any
salutary benefits put forward by the government.
Chief Electoral Officer
67 The
CEO was also granted leave to intervene as a friend of the court, but makes no
submissions on the merits of the appeal. Rather, he seeks to ensure the court
is properly informed about voting procedures and the potential impact of the
court's decision on the operations of Elections Canada.
68 The
CEO has informed the court that the next federal election must take place by
October 19, 2015. If the court were to allow the appeal, the CEO will be required
to contact certain non-resident electors to determine their eligibility to vote
in accordance with the decision of this court.
E. ANALYSIS
Introduction
69 The
meaning and significance of citizenship is central to this appeal. I will put
the issues in context by explaining how one obtains Canadian citizenship and
the rights and responsibilities attaching to citizenship.
Obtaining citizenship
70 A
person can obtain Canadian citizenship through birth, descent or
naturalization. The following are entitled to citizenship, under s. 3 of the Citizenship Act, R.S.C. 1985, c. C-29:
a person born in
Canada;
a person born outside
Canada who has at the time of birth at least one Canadian parent who was either
born in Canada or naturalized in Canada;5 or
a person who receives a
grant of Canadian citizenship.
71 In
order to obtain a grant of citizenship through naturalization under s. 5 of the
Citizenship Act,6an applicant over 18 years of age must:
have permanent resident
status in Canada;
have lived in Canada and
complied with income tax requirements for at least four of the previous six years
since becoming a permanent resident;
intend to continue to
reside in Canada, work outside Canada in the military or public service, or
reside outside Canada with a spouse, common-law partner or parent who is a
Canadian citizen in the military or public service;
if under 65 years of
age, have an adequate knowledge of one of the two official languages;
if under 65 years of
age, demonstrate an adequate knowledge of the responsibilities and privileges
of citizenship, such as voting in elections and obeying the law, and an
understanding of Canadian history, values, institutions and symbols; and
not, among other things,
be under a removal order, in prison, under a probation order, on parole,
charged with or awaiting trial on an indictable offence, or convicted of an
indictable offence in the previous three years.
72 It
is significant to this appeal that applicants for Canadian citizenship through
naturalization must establish an objective connection to Canada through a
minimum period of residence and, if under 65 years of age, must demonstrate a
subjective awareness of the rights and responsibilities of citizenship.
Citizenship rights and
responsibilities
73 Once
acquired, Canadian citizenship provides exclusive access to several fundamental
political rights. Citizens have the right to vote and run for office, the right
to receive a passport, and an unqualified right to enter and remain in Canada.
The Charter entrenches the nexus
between citizenship and rights by guaranteeing only to citizens the right to
vote (s. 3), the mobility rights in s. 6(1) and minority language education
rights (s. 23).
74 Adding
a layer to citizenship, residence and physical presence can have an important
influence on the rights and obligations of Canadians. For instance, residence
is a requirement for entitlement to full health coverage and social assistance
in Ontario. Similarly, only resident citizens can be compelled to serve on a
jury. Residents, whether citizens or not, pay the full array of taxes that
support government programs. Most important, only residents are regularly
required to obey domestic Canadian laws. With limited exceptions, the laws
enacted by Parliament do not reach outside Canadian borders.
75 What
this means, on a practical level, is that while resident citizens may enjoy
greater privileges than non-resident citizens, they also bear greater
responsibilities and burdens.
Breach of s. 3 of the Charter
76 Although
the breach of s. 3 of the Charter
was conceded by the appellant, I will briefly address it to lay the foundation
for the s. 1 analysis. Section 3 provides:
· 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.
77 As
I noted at the beginning of these reasons, in Sauvé #2, McLachlin C.J. described the right of Canadian citizens to vote as
lying at the heart of Canadian democracy. It is a right that must be
interpreted liberally and can only be taken away for good reason.
78 In
Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, Iacobucci J. speaking for the
majority said, at para. 30, that the purpose of s. 3 is "to promote and
protect the right of each citizen to play a meaningful role in the political
life of the country. Absent such a right, ours would not be a true
democracy".
79 These
principles find expression in s. 6 of the CEA, which provides that a Canadian citizen 18 years of age or older is
entitled to have his or her name included in the list of electors for the
polling division in which he or she is ordinarily resident and to vote at the
polling station for that polling division.
80 Some
Canadian courts have suggested that the right to vote nevertheless contains
internal limits. For instance, the Yukon Court of Appeal concluded that
residence requirements for the right to vote in a territorial election did not
violate s. 3: Re Yukon Election Residency Requirements (1986), 1 Y.R. 23 (C.A.). This view appears to have been superseded
by the holding of McLachlin C.J. in Sauvé #2, at para. 11, that "s. 3 must be construed as it reads, and its
ambit should not be limited by countervailing collective concerns".
81 As
a result, the breach of s. 3 is straightforward. The legislation prevents a
particular group of Canadian citizens from voting in federal elections, thereby
violating their s. 3 rights. Countervailing interests and any justifiable
limitations are to be considered under s. 1: see Sauvé
#2; Figueroa.
Section 1 of the Charter
82 Section
1 guarantees the rights and freedoms set out in the Charter, "subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society."
83 Having
found a breach of s. 3, the question is whether the limit on voting rights of
non-resident citizens is reasonable and can be demonstrably justified in a free
and democratic society.
84 The
analysis requires that: (a) the objective of the legislation be pressing and
substantial; and (b) the means used to further that objective are
proportionate, namely, (i) rationally connected to the objective of the law,
(ii) minimally impairing of the Charter right, and (iii) proportionate in effect. See: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, at para. 139; R. v. Oakes; Health Services and Support -- Facilities
Subsector Bargaining Assn. v. British Columbia, 2007 SCC
27, [2007] 2 S.C.R. 391, at paras. 137-39.
85 The
onus lies on the party seeking to justify the limitation of the Charter right to prove these requirements on a
balance of probabilities: RJR-MacDonald v. Canada, [1995] 3 S.C.R. 199, at paras. 137-38.
Pressing and
substantial objective
Introduction
86 The
first step in the Oakes analysis
asks whether the objective of the infringing measure is sufficiently important
to be capable in principle of justifying a limitation on Charter rights and freedoms: RJR-MacDonald, at paras. 142- 44; Mounted Police Association of Ontario, at
para. 142. The objective must correspond to Parliament's intent at the time the
law was enacted: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 335. The objective must also be directly
connected to justifying the aspect of the legislation that infringes the right:
Vriend v. Alberta, [1998] 1
S.C.R. 493, at paras. 113-116. It must be consistent with the values of a free
and democratic society and should be directed at the realization of collective
goals of fundamental importance: Oakes, at p. 136.
87 In
Oakes, Chief Justice Dickson
pointed out that the s. 1 justification standard requires the court to have
regard to the purpose for which the Charter was entrenched in the Constitution -- to ensure that Canadian
society is free and democratic. He added, at p. 136:
· The Court must be guided by the values and principles essential to a
free and democratic society which I believe embody, to name but a few, respect
for the inherent dignity of the human person, commitment to social justice and
equality, accommodation of a wide variety of beliefs, respect for cultural and
group identity, and faith in social and political
institutions which enhance the participation of individuals and groups in
society. The underlying values and principles of a free
and democratic society are the genesis of the rights and freedoms guaranteed by
the Charter and the ultimate
standard against which a limit on a right or freedom must be shown, despite its
effect, to be reasonable and demonstrably justified. [Emphasis added.]
88 I
will return to the words in italics in the next section.
Objectives of the
legislation
89 The
objectives of the legislation can be determined through reasoning and common
sense, by reference to "the values and principles essential to a free and
democratic society": R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527, at para. 22.
90 The
appellant says two main objectives of the law are pressing and substantial.
First, it submits that the regime promotes the fairness of the electoral
process by protecting the social contract lying at the heart of Canada's constitutional
democracy. Second, it maintains the primacy of residence in Canada's system of
parliamentary representation, rooted as it is in geographically determined,
electoral district-based representation within Canada.
91 In
oral argument, the appellant focused primarily on the social contract
objective. The appellant described the social contract between citizens and the
government as having both subjective and objective dimensions. Subjectively,
the right to vote is premised on the electors' knowledge and affiliation with
their country and electoral district. Objectively, it is rooted in citizens'
obligations to obey the laws enacted by the Parliament they participate in
electing.
92 In
fairness to the application judge, it appears that the appellant did not
expressly invoke the social contract in its submissions before him. Instead, it
framed its submission as "fairness to resident voters", who live with
the consequences of the laws for which they vote.
93 For
the reasons that follow, however, I am satisfied that preserving the connection
between citizens' obligation to obey the law and their right to elect the
lawmakers -- strengthening the social contract -- is a pressing and substantial
objective that justifies the s. 3 Charter infringement. As a result, I will consider the other proposed
objectives only insofar as they relate to the social contract objective.
94 At
a general level, the social contract is about reciprocity between civic rights
and responsibilities. In the context of this case, it is founded on a mutuality
between the franchise and the citizen's obligation to obey the law -- between
political rights and political obligations. This notion finds strong support in
both political theory and Supreme Court jurisprudence.
95 In
Sauvé #2, both the majority and
the minority recognized the significance of the connection between the right to
vote -- having a say in the making of the law -- and the obligation to obey the
law. This social contract was endorsed by the majority at para. 31:
· In a democracy such as ours, the power of lawmakers flows from the
voting citizens, and lawmakers act as the citizens' proxies. This delegation
from voters to legislators gives the law its legitimacy or force.
Correlatively, the obligation to obey the law flows from the fact that the law
is made by and on behalf of the citizens. In sum, the legitimacy of the law and
the obligation to obey the law flow directly from the right of every citizen to
vote. As a practical matter, we require all within our country's boundaries to
obey its law, whether or not they vote. But this does not negate the vital
symbolic, theoretical and practical connection between having a voice in making
the law and being obliged to obey it. This connection, inherited from social contract
theory and enshrined in the Charter, stands at the heart of our system of constitutional
democracy.
96 The
Chief Justice synthesized this, at para. 44, with the observation that
"laws command obedience because they are made by those whose conduct they
govern". The connection between electing the lawmakers and being subject
to the laws gives the laws their legitimacy.
97 The
minority judgment in Sauvé #2
disagreed with the majority about the nature and implications of prisoners'
participation in the social contract. Nevertheless, it too endorsed a similar
concept of the social contract, at para. 115:
· The social contract is the theoretical basis upon which the exercise
of rights and participation in the democratic process rests. In my view, the
social contract necessarily relies upon the acceptance of the rule of law and
civic responsibility and on society's need to promote the same.
98 Indeed,
the minority took the social contract a step farther, recognizing its potential
to justify residency as a qualification for voting, at para. 118:
· It is for this same reason, the importance of the nexus between
voters and their community, that many jurisdictions qualify the right to vote
with residency requirements. This Court, in Haig v.
Canada, [1993] 2 S.C.R. 995, upheld residency
requirements as a reasonable qualification to the eligibility to vote in a
referendum. While it is clear that there was no breach of s. 3 of the Charter in that case since s. 3 does not apply
to referenda, Haig, supra,
generally seems to imply that residency requirements may be capable of being
reasonable qualifications upon the right to vote. This
reasonableness arises not only from practical concerns, but also from the nexus
between a particular individual's eligibility to vote in an election, their
relationship to the community, and the fact that it is that community which
will be subjected to the results of the election.
[Emphasis added.]
99 Given
the Supreme Court's recognition of the importance of the social contract, and
the majority's recognition that it "stands at the heart of our system of
constitutional democracy", I am satisfied that strengthening the social
contract qualifies as a pressing and substantial objective. Returning to the
words of Dickson C.J. in Oakes,
it promotes faith in political institutions that enhance the participation of
individuals and groups in our society.
Parliament's intent
100 It
remains necessary to ask whether Parliament's intention was to protect the
social contract when Bill C-114 was passed in 1993. The overall intention of
the special ballot provisions was to extend the franchise to certain non-resident citizens who were previously
unable to vote. It did so by providing a method of remote voting to qualified
non-resident citizens. The question is whether Parliament's intention in not
extending the franchise to all non-resident citizens was to protect the social
contract.
101 Although
not expressly stated in those terms, the underlying Hansard evidence reveals a
concern that the vote should be limited to non- residents having a sufficient
connection to Canada. For instance, during the Senate Standing Committee, Ms.
Margaret Bloodworth remarked:
· The feeling of the special committee, and it was a feeling that the
government agreed with, was that it is not unreasonable for a democratic
society to ensure that those voting in the election have some degree of
connection with the country.
· Is five years sure to succeed in a court challenge? I cannot give you
that kind of guarantee. I can say there is a reason behind the five years, in
the sense that it ensures that there is some degree of connection with the
country. Five years is also the maximum period of a parliament, so it is not a
number picked completely out of the air. It is a matter of judgment in the
end.
· I personally do not think it is unreasonable that people have some
personal connection with the country. There have been some exceptions put in
for people who have an obvious connection; public servants, either federal or
provincial, who happen to be out more than five years and also Canadians who
are working for international organizations that Canada is a part of because
normally, Canada has a direct interest in making sure Canadians work for those
organizations. We have tried to build in obvious exceptions where people do
have a direct ongoing connection with the country, but it will not give the
vote to people who have lived outside the country for 20 or 25 years. Those
kinds of people will not be able to vote.
102 In
the Special Committee on Electoral Reform, M.P. Jim Hawkes expressed a similar
view:
· People who have been non-resident in Canada for five years or less,
or something of that kind, makes me more comfortable. Somebody who's not lived
in this country for 40 years -- I'm not sure I want them voting, and I'm not
sure they have a close enough connection to satisfy me they're still Canadian.
They may have a passport that says they are, but if they're out of the country
on a two- or three-year contract doing something, then I think they are in a
different position. It's the temporary absence from Canada that pleases me the
most.
103 Admittedly,
these concerns were primarily directed at the subjective connections of
non-residents based on their knowledge and ties to Canada. However, the
objective component is an equally important part of this connection and was
implicit in the rationale underlying the law. The focus on this objective
component in this appeal could be fairly described as a "permissible shift
in emphasis": R. v. Butler,
[1992] 1 S.C.R. 452, at p. 496.
The application judge's
characterization of the objective
104 The
social contract objective of protecting a correspondence between the right to
elect lawmakers and being required to obey the law is well supported by
jurisprudence. The application judge acknowledged this argument, which he
described as the argument that "resident Canadians live here and are, on a
day-to-day basis, subject to Canada's laws and live with the consequences of
Parliament's decisions." He did not, however, in my respectful view, give
sufficient consideration to the nature of Canadian parliamentary democracy, the
social contract and the role played by residence in both. This caused him to
reduce residence to an organizing concept and to overlook the legitimizing
effect of the social contract.
105 Couched
as it was in terms of "unfairness to resident voters", it is
understandable that the application judge discounted the argument. He focused
on fairness to resident voters and the risks of electoral fraud. Instead, he
might have recognized that non-residents are generally not subject to Canadian
laws and do not share the same citizenship obligations.
106 The
application judge felt that non-residents live with the consequences of the law
because they visit Canada, have family here and may in the future be affected
by the laws. He also said that non-residents may be subject to Canada's laws
even though they may not be enforced against them. In my view, these
connections are tenuous. As a practical matter, Canada does not purport to
legislate extra-territorially in most cases. Nor does it attempt to enforce its
laws outside the country. While the respondents will be subject to Canadian
laws when they come to Canada, the same is true of any visitor. On a day-to-day
basis, the respondents are subject to an array of U.S. municipal, state and
federal laws that affect every aspect of their lives. Their tax dollars are
directed to the support of U.S. policies, programs and institutions, not
Canadian ones. They may well have an interest in Canadian politics, but their
taxes go to Washington, not Ottawa.
107 The
application judge suggested that the logic of the appellant's argument would
dictate that all non-residents should be prohibited from voting. This overlooks
the subjective element of the legislation. A short-term non- resident who
demonstrates an intent to return to Canada and to thereby voluntarily subject
him/herself to the laws is entitled to vote.
Consistent with the
goals of a free and democratic society
108 By
strengthening public confidence in the laws enacted by Parliament, the
legislation is consistent with the principles and values of a free and
democratic society.
109 The
respondents say that the impugned legislation is a regressive step in light of Canada's
history of leadership in the extension of the franchise, beginning with the
enfranchisement of women, and continuing with the reduction of the voting age
from 21 to 18, and the removal of limitations on the voting rights of judges,
prisoners and people with mental disabilities. They say the government has
identified no "problem" addressed by the legislation.
110 Given
the history of extension of the franchise in Canada, and the entrenchment of
the right of citizens to vote in the Charter, any restriction of that right must be carefully scrutinized. Canada
has evolved away from unjust limits on the right to vote based on wealth,
gender, or race. It is, however, consistent with the values of a "free and
democratic society" to require long-term residency as a pre-condition to
enjoying the full political rights flowing from citizenship. As one professor
of political science noted (Claudio López-Guerra, "Should Expatriates
Vote?" (2005) 13:2 Journal of Political Philosophy 216, at p. 220):
· [W]hether self-determination is understood simply as the election of
representatives or as a more radical notion of active and direct participation
in the citizenry, the implications are the same for the purpose of defining who
ought to have political rights in a democratic government -- the governed. [Emphasis added.]
Conclusion on the
pressing and substantial objective
111 The
impugned provisions have a sufficiently significant objective to meet the
"pressing and substantial" standard. I now turn to the
proportionality analysis mandated by Oakes.
Proportionality
112 This
second stage of the Oakes test,
the proportionality analysis, involves three considerations: (i) whether there
is a rational connection between the impugned legislation and a
constitutionally valid objective; (ii) if so, whether the right is minimally
impaired; and (iii) at the final balancing stage, whether the law's salutary
benefits outweigh its deleterious effects.
113 In
my view, the proportionality analysis turns on whether Parliament was entitled
to impose a maximum period of non-residency as a condition of entitlement to
vote. Less important is the particular period of time it chose. Whether five
years is an acceptable period of absence at which to draw the line falls to be
considered at the minimal impairment stage and not the rational connection
stage of the analysis.
Rational connection
114 In
Mounted Police Association, the
majority (per McLachlin C.J. and LeBel J.) observed at para. 143:
· The government must demonstrate that the infringing measure is
rationally connected to its objective. This test is "not particularly
onerous" (Little Sisters Book and Art Emporium v.
Canada (Minister of Justice), 2000 SCC 69, [2000] 2
S.C.R. 1120, at para. 228; Health Services, at para. 148). It is not necessary to establish that the measure
will inevitably achieve the
government's objective. A reasonable inference that the means adopted by the
government will help bring about the objective suffices (Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 40; Health Services, at para. 149). The assessment
is a matter of causal relationship.
115 The
rational connection must be established by evidence or by reason and logic: RJR-MacDonald, at paras. 153-154. As I will
explain below, I find that Canadian citizens who have been non-resident for
five years or more are largely not governed by the Canadian legal system;
therefore, excluding them from the franchise helps to strengthen the social
contract and enhance the legitimacy of the laws.
116 The
appellant supports the rational connection between the legislative objective
and the legislation by four arguments:
the social contract
theory discussed in Sauvé #2;
provincial and
territorial electoral legislation;
the electoral laws of
other Westminster democracies; and
international
jurisprudence.
117 I
will examine each of these.
Sauvé #2 and the social contract
118 As
I have noted above, in Sauvé #2,
the Chief Justice affirmed "the vital symbolic, theoretical and practical
connection between having a voice in making the law and being obliged to obey
it".
119 The
foundation of the government's objective is neither new nor revolutionary. In Sauvé #2 the Supreme Court of Canada referred
to the writings of John Stuart Mill as one of the sources of democratic theory.
So too were the works of Jean-Jacques Rousseau. In "The Social
Contract", Rousseau observed:
· The People, subject to the enactments of law, must be its authors,
for it belongs only to those who have combined together to order the conditions
of their society.7
120 Contemporary
scholars on the subject of citizenship, residence and the right to vote have
expressed similar views. For example, Professor Patti Tamara Lenard, in an
article entitled "Residence and the Right to Vote" (2015) 16:1
Journal of International Migration and Integration 119, makes the following
observation at pp. 120 and 125:
· According to ideal accounts of democratic theory, democratic states
are justified by their commitment to the equality of all those who are subject
to their rule. This equality finds its central expression in citizens'
protected, equal access to its collective decision-making procedures.
...
· [A]bsent a compelling explanation--those who are obligated to abide
by state laws, and those whose daily lives are shaped by them, have the right
to participate in selecting those who create them.
121 The
rational connection between the objective and the legitimacy of the laws is
eloquently captured in the words of former Chief Justice of the Ontario High
Court of Justice James C. McRuer, found in the Foreword to J. Patrick Boyer, Political Rights: The Legal Framework of Elections in Canada, (Toronto: Butterworths, 1981):
· Since primitive tribal times there has been a slow but persistent
struggle to define and regulate the exercise of power necessary for the
protection and welfare of those who in their own interest must live in some
form of association. The recognition that the source of
the power exercised must rest in those affected by its exercise has been an
idea of comparatively recent development in human history. It is a democratic idea.
· The growth of democratic ideas has been slow and spasmodic and even
now after eons of history only in a comparatively small segment of the world's
population do they prevail in the control of the internal affairs of
nations.
· It is fundamental to the democratic idea that there be a social
acknowledgement that not only must the source of the power to govern lie with
those subject to the power, but they must have a right to define and limit its
exercise. [Emphasis added.]
See also López-Guerra, at 234: "Participation
in a democratic process should be restricted to those who will be subject to
the rulings of that government."
122 In
Sauvé, a majority of the Supreme
Court found that denying penitentiary prisoners the right to vote was not
rationally connected to the stated objectives of enhancing respect for the law
and imposing legitimate punishment. The court held, at paras. 42-53, that the
former was a variant on the "unworthiness rationale" and the latter
was not achieved by removing the vote. Inmates remain subject to the law even
if they choose not to obey it. Non- resident citizens, on the other hand, are
generally no longer subject to Canadian law. They have opted out of the social
contract in a way that inmates have not. It is the obligation to obey the law,
not obedience to the law, which animates the social contract.
Provincial and territorial legislation
123 Residence
is a determinant of voter eligibility in all provinces and territories, with
most requiring a minimum period of residence. The Saskatchewan Court of Appeal,
the Yukon Territory Court of Appeal and the Nunavut Court of Justice have found
a rational connection between these residence requirements and the fairness and
integrity of the electoral process: Storey v.
Zazelenchuk (1984), 36 Sask.R. 103 (C.A.); Anawak v. Nunavut (Chief Electoral Officer),
2008 NUCJ 26, 172 A.C.W.S. (3d) 391; Re Yukon Election
Residency Requirements (1986), 1 Y.R. 23 (C.A.).
Westminster Democracies
124 Residence
is a requirement of the electoral laws of the other Westminster democracies.
The U.K., Australia and New Zealand limit the voting rights of non-resident
citizens to those temporarily resident abroad, albeit with different time
limits -- 15 years in the U.K., six years in Australia and three years in New
Zealand: see Representation of the People Act 1985, (U.K.) 1985, c. 50, s. 1, as amended by s. 141(a) of Political Parties, Elections and Referendums Act 2000, (U.K) 2000, c.41; Commonwealth Electoral Act
1918 (Aus) No. 27, 1918, as amended, s. 94; Electoral Act 1993, (N.Z.) 1993 No. 87, s. 80.
The New Zealand time limit is re-set if the non-resident returns to the country
between absences.
International jurisprudence
125 The
appellant also refers to international jurisprudence, including the decisions
of the European Court of Human Rights in Shindler v. the
United Kingdom, No. 19840/09, 7 May 2013, at p. 27; and Hilbe v. Liechtenstein (dec.), No. 31981/96,
[1999] VI E.C.H.R. 453, at p. 459, both of which affirmed the importance of
limiting the right to vote to those who would be most directly affected by the
law.
126 In
Hilbe, the court said at p. 459:
· In the present case the court considers that the residence
requirement which prompted the application is justified on account of the
following factors: firstly, the assumption that a non-resident citizen is less
directly or less continually concerned with his country's day-to-day problems
and has less knowledge of them; secondly, the fact that it is impracticable for
the parliamentary candidates to present the different electoral issues to
citizens abroad and that non-resident citizens have no influence on the
selection of candidates or on the formulation of their electoral programmes; thirdly, the close connection between the right to vote in
parliamentary elections and the fact of being directly affected by the acts of
the political bodies so elected; and, fourthly, the legitimate concern the
legislature may have to limit the influence of citizens living abroad in
elections on issues which, while admittedly fundamental, primarily affect
persons living in the country. [Emphasis added.]
127 In
Shindler the court said, at para.
107, that it was satisfied that the legislation "pursues the legitimate
aim of confining the parliamentary franchise to those citizens with a close
connection with the United Kingdom and who would therefore be most directly
affected by its laws".
128 The
respondents distinguish the provincial voting cases and the decisions of the
European Court of Human Rights. These decisions are indeed distinguishable, but
they nevertheless affirm the interest of the polity in limiting enfranchisement
to its residents.
129 The
authorities, provincial and international, provide strong support for the
logical connection between limits on non-resident voting and the legitimacy and
fairness of the electoral system.
Application to the case at hand
130 In
my view, the focus of the application judge's analysis was misdirected by the
government's assertion that long-term non-residents do not have the same
connection to Canada as residents. This caused the debate to be cast as whether
non-resident citizens were worthy of the vote, comparing it to the treatment of
criminals discussed in Sauvé #2.
As a result, he overlooked Canada's democratic tradition and the importance of
the social contract between Canada's electorate and Parliament. This, in turn,
tainted the proportionality analysis. As the Supreme Court noted in Toronto Sun Newspapers Ltd. v. Canada, 2010
SCC 21, [2010] 1 S.C.R. 721, at para. 20, "[A]ll steps of the Oakes test are premised on a proper
identification of the objective of the impugned measure." As I will
explain, the mischaracterization of the objective of the measure skewed the
rational connection analysis because the application judge treated the
legislation as declaring long-term non- residents to be unworthy.
131 The
appellant's main argument is not that longer-term non-residents lack a sense of
commitment to Canada. Rather, the legislative objective is to maintain the
connection between the voters, the lawmakers and the laws. Non- residents are
not directly "governed" by Canadian laws. Once a citizen's non-
residence becomes long-term rather than temporary, it is reasonable for the
government to place limits on that citizen's entitlement to vote. That limit is
important, but not because the longer-term non-resident is unworthy due to a
lack of engagement in Canadian affairs. It is because the longer-term non-
resident has voluntarily withdrawn from the social contract and has submitted
him/herself to another political and legal order.
132 Two
of the interveners, the BCCLA and CCLA, argued that Parliament has jurisdiction
to pass more extra-territorial laws than it does, and can potentially have a
greater impact on non-residents. They argued that the reduced obligations of
non-resident citizens are as much a choice of Parliament as the choice of non-residents.
133 While
Parliament has the power to make laws having extra-territorial application,
there is a presumption against extra-territorial application of the law.8 Moreover, Canada exercises restraint by not purporting to legislate
extra- territorially out of respect for the sovereignty of foreign states and
because such laws would be largely unenforceable.
134 In
Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, La Forest J. recognized this legislative
restraint, at p. 1095:
· [It is] one of the basic tenets of international law, that sovereign
states have exclusive jurisdiction in their own territory. As a concomitant to
this, states are hesitant to exercise jurisdiction over matters that may take
place in the territory of other states. Jurisdiction being territorial, it
follows that a state's law has no binding effect outside its
jurisdiction.
135 Similarly,
in R. v. Hape, LeBel J. noted the
state's limited authority over its foreign nationals, at para. 60:
· Under international law, a state may regulate and adjudicate
regarding actions committed by its nationals in other countries, provided
enforcement of the rules takes place when those nationals are within the
state's own borders. When a state's nationals are
physically located in the territory of another state, its authority over them
is strictly limited. [Emphasis added.]
136 He
then observed, at para. 69:
· Simply put, Canadian law, whether statutory or constitutional, cannot
be enforced in another state's territory without the other state's
consent.
137 A
statement to a similar effect is found in John H. Currie, Public International Law, 2nd ed. (Toronto:
Irwin Law, 2008) at p. 335:
· States being in essence territorially-defined entities, the starting
point for their enforcement jurisdiction is naturally territorial. In other
words, it is a starting presumption in international law that, within its
borders, a state is sovereign and free to exercise plenary enforcement
jurisdiction with respect to persons and property situated within those
borders. The necessary corollary of this presumption, which is based on
territorial sovereignty, is that the enforcement
jurisdiction of a state is in fact limited to its territory absent some special rule of international law or
other basis permitting the exercise of such jurisdiction abroad. Otherwise, a state exercising enforcement jurisdiction in the
territory of another state would necessarily be violating the exclusive
jurisdiction of that state over all enforcement measures within its
territory." [Italics in original; underlined emphasis added.]
138 The
truth is that most of Canada's laws have little practical impact on
non-resident citizens. While there are unquestionably some Canadian laws that
are expressly intended to apply extra-territorially, these are, equally
unquestionably, the exceptions.9
139 The
same is true of the application judge's suggestion that non- resident citizens
are "subject" to Canadian laws. While the interests of non- resident
citizens may be affected by certain Canadian laws, most Canadian laws have no
impact on them unless and until they come into the country. They are not governed by Canada's legal regime in the same
way as residents. López-Guerra makes this point at pp. 232-33:
· While expatriates could comply with taxation and conscription laws to
some extent, they cannot be subject to the entire legal system in the same
terms as those residing within the country.
...
· Individuals are governed by the entire legal system only when they
live under the jurisdiction of the state, and only then should they have the
right to elect representatives entitled to discuss and vote on every
issue.
140 In
my view, the application judge understated the significance of residence in our
electoral system. Residence is not merely a "mechanism for regulating the
voting process", as he stated at para. 85 of his reasons. Nor is it simply
an "organizing principle" as the respondents contend. Residence of
the elector, either in Canada, or temporarily resident outside Canada with an
intention to return, provides the subjective and objective connection between
the electorate and lawmakers.
141 There
is, therefore, 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 is a reasonable means by which to differentiate between
temporary non-residents and longer-term non-residents who have voluntarily
removed themselves from the social contract.
142 The
respondents' argument that "[t]here is no rational connection between five
years and the alleged social contract" conflates the first two stages of
the proportionality test. Whether five years is a reasonable duration of
absence from Canada at which to draw the line is properly considered under the
minimal impairment portion of the analysis.
143 I
do not regard the exemption of military personnel, public servants posted
abroad and employees of international organizations as inconsistent with this
rational connection. Nor do I accept the suggestion that, as a matter of logic,
these citizens should also be subject to a five-year limit. Unlike the
respondents, these citizens have not voluntarily severed their connections with
Canada in the pursuit of their own livelihoods -- they have done so in the
service of their country. This service to the country is its own unique form of
connection to Canada, notwithstanding their physical absence. It is also
significant that military personnel may be tried for criminal offences
committed outside Canada by virtue of s. 67 of the National
Defence Act, R.S.C. 1985, c. N-5, and similarly, an
offence committed by federal public service employees posted abroad may be
deemed to have been committed in Canada by virtue of s. 7(4) of the Criminal Code.
Minimal impairment
144 I
now consider whether the means used impair the protected right as minimally as
reasonably possible. I do not find it necessary to consider the respondents'
argument that the impairment of the right is "overly drastic". That
argument was premised on the idea that the administrative inconvenience of
voting abroad was barrier enough to prove that that those who voted from abroad
had a strong connection to Canada. However, this appeal is not being decided on
the basis of the degree of engagement with Canada, and therefore worthiness to
vote, of non-resident citizens. The issue is not whether there is a less
intrusive degree of impairment of an individual's right to vote. Citizens are
either allowed to vote or not; there are no degrees of voting. Therefore,
whether the means used minimally impair the right turns on whether five years
is a reasonable cut-off.
145 The
application judge held that the means used did not minimally impair voting
rights of non-resident citizens, because the five-year limitation and the
requirement that the voter intended to return to Canada were overly broad. He
reasoned that the law excluded well-informed non-resident citizens like the
applicants, but allowed resident electors, who might be uninformed and
disinterested, to vote.
146 He
asked whether the five-year limit was a reasonable means of separating the
informed from the uninformed, and concluded that it was not. As in the rational
connection analysis, he focused on whether the individual voter was worthy of
being enfranchised, concluding that the Sauvé principles against unfair disenfranchisement applied.
147 I
agree that whether someone has been away from Canada for more than five years
does not have a direct correlation with his or her political knowledge;
however, the five-year limit is not a filter for political knowledge. Rather,
the duration of absence is a means by which to determine whether the citizen is
temporarily away from Canada or not.
148 There
was evidence before the application judge that Canada is one of a minority of
Commonwealth countries that provide any mechanism to permit non-residents to vote. Many do not allow it at
all. All the "Westminster democracies" restrict non-resident voting.
149 Any
particular time limit for a citizen's absence from the country is bound to
involve an exercise of judgment. If the section allowed for voting after a
longer period of absence from Canada, it might accommodate more people, but it
would not necessarily impair the rights of non-resident citizens any less. The
same competing rights and principles would remain in play. Any
"cut-off" point will produce some arbitrariness at its boundaries,
but if it is a principled rule it is capable of constituting a reasonable
limit.
150 Parliament
could have chosen a period longer than five years, and the record was thin as
to the rationale for enacting a five-year, as opposed to some other, time
limit. The corresponding limit in the United Kingdom was an absence of 15
years, for example. However, the government did provide rationales for using a
period of less than five years as a measure of temporary residence.
151 Five
years is the maximum life of a Parliament. Thus, the regime permits a citizen
to be away for a full electoral cycle and still maintain the right to vote. A
citizen who returns to reside in Canada within the electoral cycle will become
subject to the laws of the government he or she participated in electing. The
duration of a term of an elected official has been pointed to as a reasonable
standard by which to choose an appropriate time limit: López- Guerra, at p.
226.
152 Five
years is generally enough time to complete a university degree, a common reason
for Canadian citizens to spend time abroad.
153 In
considering whether the chosen limit is minimally impairing, it is of some
assistance to consider the record with respect to the practices in other
countries. The fact that Canada chose to draw the line for external voting at a
length of time within the range of that drawn in two similar jurisdictions (six
years in Australia and three years in New Zealand) is some evidence that five
years is within the realm of reasonable policy choices that were available to
Parliament to make.
154 The
Supreme Court in Sauvé #2 (at
paras. 13-14) held that a "stringent justification standard" must be
applied to a limitation on a core democratic right. While this might narrow the
range of reasonable options from which Parliament may choose, it cannot mean
that the courts are entitled to craft their own policy ideals to replace those
chosen by Parliament. It also cannot mean that courts may consider alternatives
at the minimal impairment stage that do not achieve the government's objective:
Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 54. If the government
had drawn the line for non-resident voting at ten or 15 years so as to infringe
the s. 3 rights of fewer citizens, its ability to strengthen the connection
between those who make the laws and those who are governed by the laws would
diminish. Because five years falls within the reasonable range of policy
choices as the point at which to differentiate between temporary non- residents
and longer-term non-residents who have voluntarily removed themselves from the
social contract, the means chosen were minimally impairing.
Final balancing
155 Even
if the first two requirements of the proportionality test are met, the effects
of the measures adopted on the persons whose rights are limited must be
proportional to the benefits of the pressing and substantial objective served
by the limitation. By definition in a s. 1 analysis, the effect of the impugned
law will be to limit Charter
rights. The courts must look beyond this to assess the severity of the
deleterious effects of the law. The more severe the effects, the more important
the legislative objective must be: Oakes, at p. 140.
156 In
this case, the salutary effects of the legislation are the solidification of
the bond between the electorate and the elected. The representative nature of
our government is a core democratic principle. The legitimacy of elected
representatives is strengthened by the fact that they are elected by, and are
answerable to, those who live in the jurisdiction.
157 The
deleterious effects are measured. There is no outright ban on non-resident
voting. In fact, the impugned sections enacted the first provisions that made
voting generally available to non-resident civilians. The right to vote is only
denied to those who withdraw from the social contract by leaving Canada on a
long-term basis. In so doing, they cease to be subject to most Canadian law and
thereby relinquish their right to a voice in that law. The voters' rights are
not "stripped"; nor are they permanently denied. Their choice is
reversible and, as Canadian citizens, they are free to return to Canada at any
time and remain without restriction. They are entitled to vote as soon as they
return to reside in Canada.
158 The
intervener CCLA argued that in this final balancing process the court should
consider Charter values, and in
particular the value of equality. Its submission was not that the court should
embark on a full-blown s. 15 Charter analysis, but that the court should be mindful of equality principles
and not create a class of "second class" citizens, namely long-term
non-resident voters. I am not persuaded that the proposed analysis is called
for in every case.
159 In
its proportionality analysis, the court must compare "the harm which may
be prevented with the harm of the infringement itself": Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (Attorney
General), [1998] 1 S.C.R. 877, at para. 125. While in
some cases the "harm of the infringement" might include an aspect of
discrimination, that is not so in the case before us. Non-resident voters are
not treated differently because they are less worthy of the vote. The
legitimate reasons for their differential treatment are set out above. I am of
the view that the salutary effects outweigh the legislation's deleterious
effects.
F. CONCLUSION
160 The
impugned provisions violate s. 3 of the Charter, but I find that they are saved by s. 1. I would allow the appeal
and set aside the order of the application judge.
G.R. STRATHY C.J.O.
D.M. BROWN J.A.:-- I agree.
D.M. BROWN J.A.:-- I agree.
· J.I. LASKIN J.A. (dissenting):--
A. Overview
161 Section
3 of the Canadian Charter of Rights of Freedoms guarantees every Canadian citizen the right to vote in a federal or
provincial election. The framers of the Charter considered this right so important that they did not allow
Parliament or a provincial legislature to override it. Since the enactment of
the Charter, our courts have
invalidated federal legislation which, despite s. 3, had deprived groups of
Canadian citizens of the right to vote -- persons with mental disabilities,
prisoners, even judges. The present case raises the constitutionality of the
last significant piece of federal legislation denying the right to vote to a
group of Canadian citizens. That group comprises some, but not all, Canadian
citizens who have lived outside Canada for more than five years.
162 The
application judge, Penny J., struck down this legislation. He found that it
breached s. 3 of the Charter and
that the government had not justified the breach under s. 1. My colleagues
accept that this legislation, which precludes the two respondents and over one
million other Canadian citizens from voting in a federal election, breaches s.
3. But they have concluded that the breach is demonstrably justified under s. 1
of the Charter.
163 I
disagree. Instead, I agree with Penny J.'s judgment, which I consider to be a
thorough and well-reasoned analysis of the issues under ss. 3 and 1 of the Charter. Therefore, in this dissent, I will
focus only on the new arguments put forward by Strathy C.J.O. to justify taking
away the respondents' right to vote.
164 Strathy
C.J.O. concludes that the breach of s. 3 of the Charter can be justified by "the pressing and substantial objective of
preserving the social contract at the heart of Canada's system of
constitutional democracy." In my colleague's opinion, this social contract
is founded on a connection between a citizen's right to elect our lawmakers and
our citizens' obligation to obey the law. He acknowledges that the Attorney
General "did not expressly invoke the social contract" before the
application judge. Nonetheless he says that the application judge
"overlooked" or did not give "sufficient consideration" to
this pressing objective -- an objective the Attorney General now claims
motivated the five-year non-residency limitation in the Canada
Elections Act, S.C. 2000, c. 9.
165 I
do not agree with the majority's judgment for any one of three reasons, which I
will elaborate on in this dissent. First, neither on the application before
Penny J., nor even on the later stay motion before Sharpe J.A., did the
Attorney General propose that this objective of preserving the social contract
justified breaching the respondents' s. 3 Charter rights. 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. Only in this court, for the first time, did the Attorney General rely
on this objective to try to meet its burden under s. 1. I am dubious whether
the Attorney General can fairly raise this new argument on appeal, without any
evidence before the court about the nature of the social contract and how it
animated the challenged legislation.
166 Second,
to meet its burden under s. 1, the Attorney General must rely on an objective
that reflects Parliament's intent at the time the challenged provisions were
enacted -- in this case, 1993, when the Canada Elections
Act was amended to extend the vote to non-resident
citizens who had been absent from Canada for less than five years. But the
objective the Attorney General and my colleagues now rely on does not do so.
The record before this court contains no evidence to show that when Parliament
enacted the five-year non-residency limitation in 1993, its intent was to
preserve or strengthen the social contract. To now rely on this objective runs
afoul of the well-recognized shifting purpose doctrine of Canadian
constitutional interpretation.
167 Finally,
even if the Attorney General could overcome these first two hurdles, in my
opinion, the preservation of the social contract does not satisfy the
government's stringent justification burden under s. 1. It is not a pressing
and substantial objective of the legislation and it does not meet the
proportionality requirements of the s. 1 Oakes test.
168 To
support their position that the government's pressing and substantial objective
is preservation of the social contract, the Attorney General and my colleagues
point to the Supreme Court of Canada's judgment in Sauvé
v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002]
3 S.C.R. 519. They also assert that residence in Canada provides the
"subjective and objective connection between the electorate and law
makers", which they say is the basis of democratic legitimacy. In my view
neither Sauvé nor the role of
residence in our electoral system supports the majority's position.
169 What
the Attorney General has done is to fasten onto a single paragraph -- paragraph
31 -- in the majority reasons of McLachlin C.J.C. in Sauvé, decided nine years after the legislation in question on this appeal
was passed. That paragraph, however, was written in a different context and for
a different purpose. It was written in the context of striking down legislation
that took away the voting rights of a group of Canadian citizens -- those
incarcerated in our country's prisons. It was not written for the purpose the
Attorney General and my colleagues seek to use it: to uphold legislation that
takes away voting rights from another group of Canadian citizens. On the
contrary, as I will try to show, the majority judgement in Sauvé supports the respondents' position.
170 For
my colleagues and the Attorney General, residence in Canada appears to be a
proxy for participation in the social contract, and thus is the philosophical
foundation of the right to vote. And in the years leading up to enactment of
the Charter, Canadian residence,
with few exceptions, was the defining criterion of the right to vote. But in
1982 the framers of the Charter
discarded Canadian residence for another defining criterion: Canadian
citizenship, and nothing more.
B. Background
171 Strathy
C.J.O. has summarized much of the relevant background, as well as the
provisions of the Canada Elections Act challenged in this litigation. Here, I add only the following brief
additional summary.
The challenged
legislation
172 The
Canada Elections Act prescribes
who can vote in a federal election, and by doing so, determines who cannot
vote. Section 3 sets out the qualifications for voting. There are but two:
being 18 years of age, which McLachlin C.J.C. said in Sauvé, at para. 37, merely regulates "a modality of the universal
franchise"; and being a Canadian citizen. Notably, even under the statute,
Canadian residence is not a qualification for voting.
173 But
then, in combination, ss. 11 and 222 set out who can vote, and by implication
who cannot. Section 11(d) is the main provision challenged on this appeal:
Any of the following
persons may vote in accordance with Part 11:
...
a person who has been
absent from Canada for less than five consecutive years and who intends to
return to Canada as a resident.
174 Part
11 of the Canada Elections Act
outlines the Special Voting Rules, which provide the only mechanism under which
Canadian citizens living outside of Canada may vote. Section 11 determines
eligibility for voting under Part 11. The combined result of ss. 11(d) and 222
(which falls under Part 11) is that any Canadian citizen who has been absent
from Canada for more than five years, even though intending to return to
Canada, is prohibited from voting.
175 Both
Gillian Frank and Jamie Duong have been absent from Canada for more than five
years. Both intend to return to Canada and reside here when they can find a job
in Canada. Yet both are prohibited from voting in a federal election.
176 There
are exceptions to the five-year non-residency limitation in s. 11(d). Sections
11 and 222 together exempt several groups of non-resident Canadian citizens
from disenfranchisement under s. 11(d). These include:
Members of the Canadian
Forces;
Employees in either the
federal or provincial public service, who have been posted outside
Canada;
Employees of an
international organization to which Canada belongs, who have been posted
outside Canada; and
Any person who lives
with a Canadian citizen in any one of these exempted groups
177 All
of these exempted Canadian citizens may vote in a federal election, even though
they may live outside Canada for decades and have no intention of returning to
this country.
The respondents Gillian
Frank and Jamie Duong
178 Each
respondent is a Canadian citizen. Each has family ties in Canada and cares
deeply about this country. Each has been living in the United States for more
than five years: Frank is finishing post-doctoral studies; Duong works at the
university where he graduated. But each respondent has applied for work in
Canada and each intends to return to Canada when offered employment here.
179 The
application judge set out the details of each respondent's background. I
reproduce verbatim that portion of his reasons.
Gillian Frank
· Dr. Frank has strong ties to Canada and cares deeply about this
country. He completed undergraduate studies at York University. During his
final year of high school and through part of his university career, Dr. Frank
was a member of the Canadian Forces and served in a communications regiment,
mostly on a part-time basis. He served full-time for one semester of high
school and during the 1998 ice storm in Eastern Ontario.
· Following his graduation from York University, Dr. Frank was accepted
on full scholarship for seven years for graduate studies to Brown University in
Providence, Rhode Island. While Dr. Frank now is completing post- doctoral
studies in the United States, he has applied (unsuccessfully to date) for every
academic job in Canada that is appropriate to his expertise and would advance
his career.
· Dr. Frank's wife is a Canadian citizen who was born and grew up in
Toronto. Dr. Frank's parents and immediate family, as well as his wife's
family, all live in Toronto. Dr. Frank and his wife now have one child. If Dr.
Frank is successful in obtaining an academic position in Canada, he will move
back to Canada without hesitation. Dr. Frank and his wife would prefer to raise
their child in Canada. They identify themselves as Canadian and hold values
that they associate with their Canadian heritages. Dr. Frank travels to Canada
approximately four times per year.
· At Brown University, he founded a Canadian club (with events
sponsored by Tim Horton's and Labatt). Since living in New York, he has joined
the Canadian Association of New York. He has participated on multiple occasions
in the Terry Fox run in Central Park. He is well-informed about Canadian
politics. Dr. Frank does not intend to permanently reside in the United States.
He wants to move to Canada and is making every effort to obtain an academic
position here. He is only in the United States because he has not been able to
obtain a job in Canada in his chosen profession. He has not sought immigration
status in the United States other than on a temporary basis.
Jamie Duong
· The Applicant, Jamie Duong, was born in Montreal, Quebec and
currently lives in Ithaca, New York. He is a citizen of both Canada and the
United States. He has voted in person in a number of Canadian federal and
provincial elections since being based in the United States...
· Mr. Duong also resides in the United States because of his
employment. He obtained his Bachelor of Science Degree from Cornell University
and, upon graduation, he converted part-time employment on campus into full-
time employment. He now holds a systems administrator information technology
position on campus.
· Mr. Duong has applied for positions in Canada related to his
expertise, without success. If he finds an appropriate professional position in
Canada, he will return to live here. Mr. Duong has strong ongoing connections
to Canada. His immediate family -- his parents and sister -- all live in
Montreal. He attended school in Montreal until grade ten and then transferred
to a school in Vermont. While he was attending high school and at Cornell
University, he spent his summer and almost every other holiday in Canada, both
at a family property in Nova Scotia and assisting his father at his computer
store in Montreal. Mr. Duong's family continues to own property in Canada. He
expects that partial ownership of two of the properties will be transferred to
him over the next several years. Mr. Duong also continues to return to Canada
regularly. He typically returns to Canada every Christmas, for a stretch during
the summer, and for other holidays through the year.
Section 3 of the Charter
180 Section
3 states:
· 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.
181 Before
the application judge, the Attorney General argued that s. 11(d) of the Canada Elections Act (and the accompanying
registration requirements in ss. 222, 223, and 226) did not breach s. 3 of the Charter. The application judge rejected this
argument. He found a breach.
182 On
appeal, the Attorney General abandoned this argument. He now concedes that the
legislation challenged in this litigation contravenes s. 3 of the Charter. Thus this appeal turns on s. 1 of the
Charter: has the government met
its burden to show that the breach of the respondents' s. 3 rights is
demonstrably justified -- a justification McLachlin C.J.C. emphasized in Sauvé must be "convincing"?
C. Discussion
183 As
stated in the overview, I dissent for three reasons:
184 The
pressing and substantial objective the Attorney General puts forward and on
which my colleagues rely -- preservation of the social contract -- is a new
argument, raised for the first time in this court. I do not think it fair to
either the respondents or the application judge, nor is it appropriate, to rely
on this new argument when the record contains no evidence to support it.
185 Parliament
did not have this objective in mind when it enacted the five-year non-residency
limitation in 1993.
186 The
objective itself is not pressing and substantial and does not meet the
proportionality requirements of the Oakes test.
New argument on appeal
187 The
Attorney General and my colleagues argue that the objective of preserving the
social contract justifies breaching the respondents' s. 3 rights. This is a new
argument made for the first time in this court. That it is a new argument is
evident from the reasons of the application judge and those of Sharpe J.A. on
the stay motion.
188 The
application judge set out in detail the objectives proffered before him by the
Attorney General. They were two: unfairness to resident voters and maintaining
the integrity of our electoral system.
· The Attorney General argues that Parliament's pressing and
substantial objectives in restricting non-resident voting were twofold:
to extend the right to
vote to non- resident citizens but not to the point of giving rise to
unfairness for Canada's resident voters and
to maintain the proper
functioning and integrity of Canada's electoral system and system of
parliamentary representation.
189 The
application judge then set out the Attorney General's reasons for each
objective:
· Regarding the first objective, non-resident voting is said to be
unfair for the following reasons:
Non-residents no longer
have the same substantial connection to Canada in terms of their citizenship
obligations. Resident voters remain subject to all laws enacted by those
elected while non-residents may only be affected by some laws.
Despite the internet and
access to news on national campaigns, non-residents will not be versed in local
issues to the same extent as residents, with local issues being an important
influence on the result of elections.
A single vote can decide
the outcome in Canada's electoral system (first past the post), magnifying the
unfair influence of non-resident votes particularly when their votes will be
most prevalent in a limited number of highly urbanized electoral
districts.
· Regarding the second objective, non-resident voting is said to raise
concerns over the integrity of the electoral and parliamentary representation
systems for the following reasons:
There are risks of
electoral fraud and ineffectiveness of any extraterritorial reach of the Act in
terms of its electoral finance regime.
Non-resident voting
could increase constituency demands of non-resident voters making it more
difficult for MPs to deliver effective representation to the residents in their
ridings.
190 Nowhere
in this detailed recitation of the Attorney General's position do we find any
mention of preserving the social contract. The reasons of the application judge
are so thorough, so comprehensive, and his description of the parties'
positions so detailed, I find it hard to believe he would not have addressed
the social contract objective had it been argued before him.
191 Nor
was the social contract raised at the stay motion. I have read the factum of
the Attorney General filed on his stay motion, which was heard in June 2014. It
does not mention a social contract. By contrast, his factum filed on appeal
mentions the social contract 27 times. And Sharpe J.A., in summarizing the
Attorney General's position, reiterated that it was based on unfairness to resident
voters. He noted, "In oral argument, counsel insisted that Parliament's
central concern was election fairness."
192 It
might seem that preservation of the social contract is merely a rhetorical
gloss on unfairness. But I see them as fundamentally different, both in form
and substance. The form, the label "social contract", obviously
differs from unfairness. So too does the substance. The fairness argument put
to the application judge is one-sided: residents are subject to more laws than
non- residents, so it would be unfair to residents to permit non-residents to
vote. Preservation of the social contract, however, as Strathy C.J.O. notes, is
not one-sided -- it rests on reciprocity and mutuality: only those obliged to
obey the laws can legitimately elect their lawmakers.
193 Furthermore,
the Attorney General has put forward no evidence about the nature or basis of
this social contract, which he uses to justify restricting the voting rights of
more than one million Canadian citizens. The Attorney General's argument
evidently presumes that the "social contract" has an objective and
identifiable content, closely linked to residence. Yet as I have said, in the
more than 9000 page application record, the social contract is not mentioned
once. The evidence he put forward in support of his fairness argument does not
address the social contract on which he now relies.
194 What
then follows? First, it is surely unfair to criticize the application judge for
failing to consider an argument not made before him. Second, this court has
understandably been wary about considering new arguments raised for the first
time on appeal. It will only do so if it has a proper evidentiary record and if
considering the new argument is not unfair to the responding parties: see, for
example, Kaiman v. Graham, 2009
ONCA 77, 245 O.A.C. 130, at para. 18.
195 The
responding parties have dealt with the social contract argument in their
factums, and have not suggested any unfairness. I am concerned, however, about
the record, or more accurately the absence of anything in the record that
touches on the social contract. Apart from the single paragraph in the majority
reasons in Sauvé -- which I will
come to -- we have almost nothing that bears on this objective. For that reason
I have serious doubts about whether this court should entertain this argument.
However, assuming it is entitled to do so, I turn to my other two objections.
(2) The government's
objective does not reflect Parliament's intent when the challenged legislation
was enacted.
196 As
Strathy C.J.O. notes at paragraph 86 of his reasons, the objective the
government relies on to justify the breach of a Charter right must correspond to Parliament's intent at the time the law was
enacted. In R. v. Zundel, [1992]
2 S.C.R. 731, at p. 761, McLachlin J., writing for a majority of the Court,
elaborated on this proposition:
· In determining the objective of a legislative measure for the
purposes of s. 1, the Court must look at the intention of Parliament when the
section was enacted or amended. It cannot assign objectives, nor invent new
ones according to the perceived current utility of the impugned provision.
[Citations omitted.]
197 Yet
the Attorney General has done precisely what the Supreme Court of Canada said
he cannot do -- he has invented a new objective after the provisions in issue
were enacted -- in this case, well after the non-resident voting limits were
enacted.
198 The
record before us about what motivated Parliament to pass the 1993 amendments is
meagre. As I will discuss, four parliamentary studies on voting rights -- two
before and two after the 1993 amendments -- all recommended removing any
residency limitation on Canadian citizens' constitutional right to vote.
Nonetheless, it seems that some parliamentarians were concerned, albeit without
any evidentiary support, that Canadian citizens away from the country for too
long may have lost their "affinity" or "connection" to the
country. To address this concern, the House of Commons passed the 1993
amendments to the Canada Elections Act, enacting the five-year non- residency limitation. The record is
unclear why Parliament chose five years as opposed to some other number. It
appears to have been a "middle of the road compromise".
199 What
is clear is that not a single parliamentarian, not a single study, recommended
a five-year non-residency limitation in order to preserve or strengthen our
social contract. No one expressed any concern that Canadians living abroad had
withdrawn from the social contract, and thus disentitled themselves from
voting. The notion of a social contract is entirely absent from the
parliamentary debates.
200 Strathy
C.J.O. acknowledges as much when he writes, at paras. 101-103 of his reasons,
that Parliament's concern was not expressly directed at protecting the social
contract, but that it was implicit in the rationale underlying the law. It is
implicit, in his view, because the social contract has both a subjective and an
objective component.
201 According
to the Attorney General, whose arguments my colleagues accept, the subjective
component rests on citizens' affinity to and knowledge of Canada. The objective
component rests on the connection between citizens' obligation to obey the laws
and their right to elect their lawmakers. My colleagues implicitly acknowledge
that the application judge addressed and had sound reasons for rejecting the
disenfranchisement of Canadian citizens based on the subjective component of
the social contract. But they say he did not address the objective component.
And though Parliament may have considered only the subjective component of
protecting the social contract when it passed the 1993 legislation, they say
defending the legislation on the basis of the objective component, on which the
government now relies, is a "permissible shift in emphasis". So it
does not, according to the Attorney General and my colleagues, run afoul of the
shifting purpose doctrine set out above in Zundel.
202 In
my opinion, this notion that the social contract has two components, a
subjective and an objective component, is an artifice, conjured up by the
Attorney General to avoid running up against the shifting purpose doctrine. No
evidence was presented about the nature of the social contract, much less about
its supposed objective and subjective components. And nothing in the reasons in
Sauvé supports this notion.
203 Paragraph
31 of Sauvé and even the writings
of 18th century political theorists such as John Stuart Mill and Jean-Jacques
Rousseau talk about the connection between citizens' obligation to obey the law
and the right to vote for those who make the laws. This is the so-called
objective component of the social contract. But none of these sources suggest a
link between an "objective" and a "subjective" aspect of
the social contract.
204 The
concerns of the parliamentarians in 1993 about non-resident citizens' affinity
to Canada and connection to this country had nothing to do with the
"objective" component of the social contract. Parliament did not
intend to preserve, protect, or strengthen the social contract when it passed
the 1993 legislation. This objective was invented by the government long after
1993; indeed, it appears to have been invented after this case was decided by
the application judge. The government's objective therefore cannot justify the
breach of the respondents' s. 3 rights. On this ground alone, this appeal must
fail.
205 Nonetheless
I will address the government's objective on its merits, on the assumption it
reflected Parliament's intent when the legislation was enacted.
(3) The objective of
preserving the social contract does not satisfy the government's burden under
s. 1 of the Charter
206 To
justify a Charter breach under s.
1, the government must show on a balance of probabilities that the infringing
measures further a constitutionally valid purpose or objective, and that the
means chosen to achieve that objective are reasonable and demonstrably
justified. This two-part test focuses on the legitimacy of the objective and
the proportionality of the means. Because the right at stake is a core
democratic right, judicial scrutiny of the government's justification should be
exacting, not deferential. See Sauvé, at paras. 7-9; 13-14. Contrary to the opinion of my colleagues, I
do not think that the government can meet either part of this two-part test.
· (a) The objective of preserving the social
contract is not a "pressing and substantial" objective
207 To
be a valid objective under s. 1, the government's objective in infringing the
respondents' Charter-protected
right to vote must be "pressing and substantial". Preserving the
social contract does not meet this standard. It is not supported by the four
parliamentary reports that examined voting rights in the period 1986 to 2006,
by the place of Canadian residence in our electoral system, or, in my opinion,
by the Supreme Court of Canada's judgment in Sauvé.
· (i) The four Parliamentary reports that examined voting rights
208 Voting
rights were considered in four parliamentary reports in the 20- year period
bracketing the 1993 legislation.
209 The
first report was the 1986 White Paper on Election Law Reform, published by the
Privy Council Office. This White Paper recommended comprehensive legislative
reform, including a recommendation that all Canadian citizens, at home or
abroad, be permitted to vote. After the White Paper, Bill C-79 was introduced.
It contained no non-residency limitation on the right of Canadian citizens to
vote. Bill C-79 was not passed before Parliament was dissolved in 1988.
210 The
second report was the 1991 report, Reforming Electoral
Democracy, issued by the Royal Commission on Electoral
Reform and Party Financing (the Lortie Commission). In this report, the multi-party
commission addressed (among other things) the concern of parliamentarians
debating Bill C-79 that some Canadians living abroad may not have a sufficient
connection to Canada. The Lortie Commission concluded that this concern did not
justify disenfranchising any Canadian citizens living abroad:
· Canadians live abroad for many reasons, including their occupation or
that of their spouse or parent; in many cases their presence abroad contributes
directly to the benefit of Canada or Canadian interests and ideals ... Nor is
it the case that all Canadians abroad have severed their ties to Canada.
· We conclude that the administrative difficulties of serving voters
living abroad do not constitute an acceptable justification for
disenfranchising these citizens. The United States, France, Germany, Australia
and Great Britain make provisions for voters living abroad to register and to
vote, as do Quebec and Alberta. In all of these cases, it has been recognized
that with modern telecommunications and the international press, the argument
that citizens living abroad cannot be informed about public affairs at home no
longer applies. Moreover, with increasing globalization of the world economy,
the number of Canadians travelling and living abroad will likely increase in
the coming years.
211 The
Commission said:
· [W]e should trust these Canadians. We should assume that they
continue to have a stake in Canada and keep themselves sufficiently informed as
citizens. In other words, we should not attempt to impose on citizens living
outside Canada conditions that are not imposed on those residing in
Canada.
212 After
the government received the Lortie Commission's report, it appointed a Special
Committee to review the report. The review led to Bill C- 114, which passed in
1993 and included the provisions challenged in this litigation.
213 The
third report was the 2005 report of the Chief Electoral Officer of Canada,
Jean-Pierre Kingsley: Completing the Cycle of Electoral Reforms:
Recommendations from the Chief Electoral Officer of Canada on the 38th General
Election (Ottawa: Elections Canada, 2005). He recommended removing the
limitation on voting for those Canadian citizens outside of Canada for five
years or more, but who intended to return to Canada as residents:
· In light of the Supreme Court of Canada's decision in Sauvé, it is questionable whether a Court
would find that denying the right to vote to individuals who have been absent
from Canada for a long time but who intend to return as residents is a
reasonable limit on the right that can be demonstrably justified in a free and
democratic society. It is indeed difficult to explain what pressing objective
is served by distinguishing between those who have been absent from the country
for five years as opposed to six, ten or twenty years.
214 The
fourth report was that of the House of Commons Standing Committee on Procedure
and House Affairs in 2006, Improving the Integrity of
the Electoral Process: Recommendations for Legislative Change. The Committee, which was directed to consider Kingsley's
recommendation, included members of all major political parties. It too
recommended removing the five-year limitation on the voting rights of
non-resident Canadian citizens. While giving evidence before the Committee, the
Committee Researcher commented:
· At this point in time there would be no problem that I see with
removing either the five-year limitation or, if you wish, removing the
requirement that they intend to return to Canada. It was just that in the early
1990s, because they were bringing in a new rule, a new provision, they built in
those two requirements.
215 One
of the Committee members, M.P. Michel Guimond was more pointed in his comments
about the five-year non-residency limitation. He asked: "Did this rule
fall from the sky or out of a tree?"
216 The
government did not reject the Committee's recommendation. Instead, it said that
the recommendation should be considered in the context of a comprehensive
review of the special voting rules. That review has never taken place. Nonetheless,
I question how the five-year non-residency limitation can be seen as furthering
a pressing and substantial government objective, when four parliamentary
reports have each recommended its abolition.
· (ii) The role of residence in Canada's
electoral system
217 In
the Attorney General's and my colleagues' view, Canadian residence plays a
crucial role in defining who should be entitled to vote in Canada. Residence,
in their opinion, is a pre-requisite for full participation in the social
contract. Permitting all non-residents to vote would erode the social contract
and undermine the legitimacy of our laws because it would allow non- residents
to participate in making laws that affect Canadian residents on a daily basis,
but which have little or no practical consequences for their daily lives.
Strathy C.J.O. says that the application judge erred by reducing the role of
residence to a mere organizing principle, and that he failed to recognize the
legitimizing effect of the social contract and the central place of residence
within it. I take a different view of the role of residence.
218 Broadly,
residence is, as the application judge said it was, an organizing principle to
facilitate voting. It should not be used as my colleagues use it, to undermine
voting rights. To do so would reduce non-residents to second class citizens and
discriminate against them solely because of where they live.
219 More
specifically, I cannot accept that residence is a marker of participation in
the social contract, as my colleagues contend, or that permitting all
non-residents to vote would somehow erode the social contract. I start with two
obvious points, each of which shows why my colleagues' position cannot be
sustained.
220 First,
the connection between residence and voting rights arose many years ago when
travel was difficult, people tended to lve their whole lives in one community,
and only male property owners could vote. Thus historically, Canadian residence
did largely dictate the right to vote in Canada, especially with the 1920
enactment of the Dominion Elections Act, R.S.C. 1927, c. 53.
221 But
much has changed since then. We live in a global community; travel is easy;
many people do not live in one community their whole lives; and we have long
since discarded the notion that only male property owners should be entitled to
vote. Undoubtedly, the framers of the Charter recognized these changes. They could have maintained Canadian
residence as the criterion defining the community of eligible voters. But,
wisely, they did not. Instead they provided a new criterion much more suited to
the world we now live in: the community defined by Canadian citizenship. As the
application judge said, at para. 91: "the framers and adopters of the Charter decided in 1982 that the "sufficient
interest at stake" to be able to exercise the democratic franchise under
our Constitution is Canadian citizenship."
222 Second,
even under the legislation in its present form and after the 1993 amendments,
Canadian residence is not a qualification for voting. The only qualifications
outlined in s. 3 of the Canada Elections Act are age and Canadian citizenship. And Parliament had good reason
for not making Canadian residence a qualification for voting, because under the
statute, many non-residents can vote. The judgment of the application judge
merely extended the vote to a broader class of non-residents. And for those
non-residents already entitled to vote under the Canada
Elections Act, either because they have lived abroad for
less than five years or because they are in a group exempted from the five-year
non-residency limitation, residence is a fiction. For voting purposes, all of
these non-residents may identify a residence where they have never lived -- in
other words, a "fictitious residence". Removing the five- year
residency rule will thus have no impact on the role of residence. It will
remain an important organizing feature of our electoral system.
223 I
agree that more laws, even many more laws, affect residents than non-residents.
But even among residents, legislation does not affect all citizens equally.
Thus I do not agree that the number of laws a Canadian citizen is subjected to
can be tied to the preservation of the social contract.
224 Yet
my colleagues seem to say that because non-residents are affected by far fewer
laws, they are not part of the Canadian social contract. I cannot accept that
this is so. Non-residents have the same obligation to obey the laws that affect
them as do residents. Non-residents pay Canadian income tax on their Canadian
income, and property tax on any real property they may own in Canada. They must
obey laws relating to their Canadian credit cards or bank accounts. As the
application judge rightly wrote, at para. 88 of his reasons:
· [N]on-resident Canadians can and do live with the consequences of
Parliament's decisions. The evidence is that many non-resident Canadians visit
their home frequently and intend to return. That is precisely the situation
with the two Applicants in this case. Parliament's decisions have lasting
effect. The fact that a Canadian does not live here now does not mean he or she
will not be affected by Parliament's decisions in the future. Furthermore, many
non-resident Canadians also have relatives here. Canadian laws affect the
resident parents, brothers, sisters, and children of non-resident and resident
Canadians alike.
225 For
these reasons, in my opinion, Canadian residence cannot be held out as a proxy
for participation in the Canadian social contract. Nor can I agree that
promoting the social contract by limiting the vote to residents and temporary
non-residents qualifies as a pressing and substantial government objective,
justifying a breach of the respondents' s. 3 rights.
· (iii) The Supreme Court of Canada's judgment
in Sauvé
226 Strathy
C.J.O. relies heavily on Sauvé --
especially para. 31 of McLachlin C.J.C.'s reasons -- in support of his argument
that preserving the social contract is a pressing and substantial government objective
of the five- year non-residency limitation. That paragraph, which I note
parenthetically is found not in the Chief Justice's analysis of the
government's objectives, but in her analysis of proportionality, reads as
follows:
· Denying penitentiary inmates the right to vote misrepresents the
nature of our rights and obligations under the law and consequently undermines
them. In a democracy such as ours, the power of lawmakers flows from the voting
citizens, and lawmakers act as the citizens' proxies. This delegation from
voters to legislators gives the law its legitimacy or force. Correlatively, the
obligation to obey the law flows from the fact that the law is made by and on
behalf of the citizens. In sum, the legitimacy of the law and the obligation to
obey the law flow directly from the right of every citizen to vote. As a
practical matter, we require all within our country's boundaries to obey its
laws, whether or not they vote. But this does not negate the vital symbolic,
theoretical and practical connection between having a voice in making the law
and being obliged to obey it. This connection, inherited from social contract
theory and enshrined in the Charter, stands at the heart of our system of
constitutional democracy.
227 It
is not for me to say whether the Chief Justice intended by this passage to
provide the federal government with a legitimate basis to deprive a group of
Canadian citizens of the right to vote. On my reading of the case, however, the
majority reasons of the Chief Justice actually support the position of the
respondents on this appeal. To try to show why that is so, I make the following
six points.
228 First,
para. 31 and indeed all of the majority reasons in Sauvé were directed at recognizing voting rights, not undermining them.
The social contract referred to in para. 31 was used to enfranchise citizens,
not to disenfranchise them. This paragraph states that even prisoners are
included in the Canadian social contract, and are thus entitled to vote. As I
read her reasons, the Chief Justice does not suggest that the social contract
is a basis for limiting voting rights.
229 Second,
I read the majority reasons in Sauvé as an uncompromising defence of the right of every Canadian citizen
to vote, even those convicted of the most heinous crimes. The Chief Justice
said at para. 35, quoting the South African Constitutional Court with approval:
"The voting of each and every citizen is a badge of dignity and of
personhood. Quite literally, it says that everybody counts." These
poignant words, respectfully, do not appear to lend any support to the Attorney
General's position on this appeal. Quite the opposite.
230 Other
passages in the Chief Justice's reasons similarly show that depriving
non-resident citizens of their right to vote cannot be justified. For example,
para. 32:
· Denying a citizen the right to vote denies the basis of democratic
legitimacy. It says that delegates elected by the citizens can then bar those
very citizens, or a portion of them, from participating in future elections.
But if we accept that governmental power in a democracy flows from the
citizens, it is difficult to see how that power can legitimately be used to
disenfranchise the very citizens from whom the government's power flows.
231 And
then, at para. 34:
· A government that restricts the franchise to a select portion of
citizens is a government that weakens its ability to function as the legitimate
representative of the excluded citizens, jeopardizes its claim to
representative democracy, and erodes the basis of its right to convict and
punish law-breakers.
232 And
then finally, at para. 41:
· The government's novel political theory that would permit elected
representatives to disenfranchise a segment of the population finds no place in
a democracy built upon principles of inclusiveness, equality, and citizen
participation. That not all self- proclaimed democracies adhere to this
conclusion says little about what the Canadian vision of democracy embodied in
the Charter permits.
233 Third,
a social contract is a symbolic representation of the relationship between
citizens and the state, based on one theory drawn from political philosophy.
Yet in her majority reasons the Chief Justice said that to qualify as a
pressing and substantial objective, a symbolic and philosophically- based
objective must be tethered to a specific harm, a specific problem, or at the
very least a potential harm if the legislation is struck down. And the
government must produce some evidence of this harm. Yet the Attorney General
has put forward no evidence of harm, real or potential, that would flow from
invalidating the five-year non-residency limitation -- no studies, no
complaints from Elections Canada, no concern from any other reputable source.
234 Fourth,
in Sauvé itself the Attorney
General argued that prisoners were not entitled to vote because they have opted
out of membership in the community. The majority rejected that argument.
Similarly here, the Attorney General argues that some longer-term non-resident
Canadian citizens should not be entitled to vote because they have opted out of
the social contract. In substance I see little difference between the two
arguments. Thus I would reject the Attorney General's argument in this case.
235 Fifth,
social contract theory was developed in the 18th century by political theorists
such as John Stuart Mill and Jean-Jacques Rousseau, when the right to vote was
the exclusive right of male property owners. Since then, governments have
gradually stripped away prohibitions on voting rights. As the Chief Justice
noted in Sauvé, at para. 33:
"The history of democracy is the history of progressive
enfranchisement." And: "Canada's steady march to universal suffrage
culminated in 1982 with our adoption of the constitutional guarantee of the
right of all citizens to vote in s. 3 of the Charter." The modern emphasis in voting rights is on equality and
inclusiveness. To maintain the five- year residency rule is a retrograde step
signalling a return to a measure of exclusiveness.
236 And
finally, in my opinion, the Attorney General and my colleagues have substituted
a philosophical justification for voting rights for the constitutional
guarantee in s. 3 of the Charter.
Although the relationship between citizens and legislators reflected in the
social contract may have justified the right to vote before 1982, the Charter redefined this relationship. It
defined the right to vote as inhering in citizenship, not in a notion of
reciprocity between those who make the laws and those who must obey them.
237 For
these reasons, I am not persuaded that preserving the social contract is a
pressing and substantial objective, which justifies depriving Gillian Frank and
Jamie Duong, and one million other Canadian citizens, of their right to vote.
238 As
in Sauvé however, I will discuss
and attempt to show that the government has not met the proportionality
requirements of the Oakes test.
· (b) The means chosen to achieve the
government's objective are not reasonable and demonstrably justified
239 Proportionality
-- the second part of the Oakes
test -- has three branches. The government must show:
240 The
denial of the respondents' right to vote is rationally connected to the
government's asserted objective, in that it will achieve or further that
objective;
241 The
respondents' rights are minimally impaired -- that is, the denial of their
right to vote does not go further than reasonably necessary to achieve the
government's objective; and
242 The
overall benefits of the challenged legislation outweigh its harmful effects on
the respondents.
No rational connection
243 In
my opinion, the denial of the respondents' right to vote is not rationally
connected to the government's asserted objective of preserving the social
contract or of its asserted concern to maintain the primacy of Canadian
residence in our electoral system. And the choice of a five-year non-residency
limitation bears no rational connection to these objectives. It was simply a
"middle of the road compromise". Canadians citizens abroad for just
under five years, or those in groups exempted from the non-residency limitation
for many more years, are entitled to vote, although they, like the respondents,
are not bound to obey the majority of domestic laws. Moreover, since even non-
resident citizens absent from Canada for more than five years remain subject to
and affected by the laws that do apply to them, excluding them from voting is
not rationally connected to the objective of preserving the social contract.
244 Strathy
C.J.O. says that the five-year non-residency limitation has nothing to do with
worthiness. I think it has everything to do with worthiness. The current scheme
for non-resident voting impliedly assumes that public servants posted abroad or
employees working in an international organizations, and even those living with
them, are worthy of voting, though they may be away from Canada for many years
and have no intention of ever returning. But Canadian citizens pursuing
postsecondary and post-doctoral studies abroad for seven, eight or ten years so
they can return to Canada as productive members of our society, and who care as
deeply about Canada as the public servant posted abroad, can no longer vote.
Nor can the Canadian citizen working for a Canadian corporation or a Canadian
bank who was sent to work in one of the corporation's or bank's overseas
offices.
245 These
Canadian citizens, abroad for a wide variety of reasons both personal and
professional, have not, as Strathy C.J.O. contends, "severed their
connections with Canada in the pursuit of their own livelihoods." They
often maintain strong ties and affinity to Canada. They have not renounced
membership in the Canadian polity. But under the legislation, the place of
their residence deems them unworthy to be entitled to vote.
246 The
words of McLachlin C.J.C. in Sauvé, at paras. 34-35, ring true in the present case: "A government
that restricts the franchise to a select portion of its citizens is a
government that ... jeopardizes its claim to representative democracy".
Denying a group of citizens the right to vote has the potential "to
violate the principles of equality rights and equal membership embodied in and
protected by the Charter."
No Minimal impairment
247 The
five-year non-residency limitation is an arbitrary line, which has no bearing
on a citizen's connection to Canada or on a citizen's obligation to obey the
laws that affect that citizen. Indeed, no marker of this connection is needed
beyond citizenship itself, or if citizenship itself is not enough, then as the
application judge said, citizenship together with the act of voting.
248 The
Attorney General contends that the groups of non-resident citizens entitled to
vote because they are exempt from the five-year limit, such as public servants
posted abroad, members of the Canadian Forces, or Canadian employees of
international organizations, are carefully tailored to electors who have or
will soon assume responsibilities as residents to obey our domestic laws. He
also asserts that the work of these citizens abroad "demonstrates a
different (and often more poignant) participation in Canada's social contract."
The Attorney General filed no evidence to support these contentions. These
groups may live outside Canada for decades and have no intention of ever
returning, but may still be entitled to vote. The government's attempt to meet
the minimal impairment branch of the proportionality test must therefore fail.
· (iii) Harmful effects outweigh benefits
249 Strathy
C.J.O. asserts that the benefit of the five-year non-residency limitation is
that it solidifies the bond between the electorate and the elected; and that
the harmful effects are measured because the legislation does not impose an
outright ban on non-resident voting. I disagree with my colleagues' assertions.
250 The
benefits of the five-year non-residency limitation are thin, especially because
already several groups of Canadian citizens who may live outside Canada for
many years are entitled to vote. These groups of citizens have no more
obligation to obey our laws than do Gillian Frank and Jamie Duong, yet unlike
Frank and Duong, they can participate in the election of our lawmakers. To the
extent the social contract is eroded when individuals not subject to the
majority of Canada's laws participate in electing our lawmakers, surely it has
already been eroded by the rules extending the vote to those individuals.
251 By
contrast, the harmful effects of depriving the respondents of their right to
vote are significant. Voting, participating in the selection of a country's
representatives, is a cornerstone of a free and democratic state. Depriving a
person of this most fundamental benefit of citizenship, constitutionally
guaranteed in Canada, must inevitably have a serious adverse impact. This
deprivation turns the respondents into second class citizens and so undermines
the values of equality and inclusiveness stressed in Sauvé and underlying our Charter rights.
252 Moreover,
laws made today affect how our country will be governed, not just in the
immediate future, but for years to come. Yet Canadian citizens abroad for more
than five years, such as the respondents, will have no voice in the future
direction of their country even though they have family here, intend to return
here, and thus will be affected by laws enacted while they are abroad.
253 In
this final balancing, these harmful effects on the respondents far outweigh any
benefits achieved by the challenged legislation.
(4) Provincial and
territorial legislation, international case law and the writings of political
theorists
254 Strathy
C.J.O. also relies on these sources to support his position. At para. 96 of his
reasons, the application judge dealt with the residency requirements in
provincial and territorial legislation. I agree with him that those
requirements are quite distinguishable from the legislation in question on this
appeal.
255 Likewise,
I agree with the application judge that international jurisprudence is of
limited or no assistance, both because of the deferential stance taken by
international tribunals and because Canada has been a leader in expanding
voting rights for its citizens.
256 Undoubtedly,
some modern political theorists support my colleagues' position, and in his
reasons Strathy C.J.O. has excerpted passages from their writings. But other
theorists do not: see, for example, Rainer Bauböck, "Stakeholder
Citizenship and Transnational Political Participation: A Normative Evaluation
of External Voting" (2006-07) 75 Fordham L. Rev. 2393; Ruth Rubio- Marin,
"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; David Owen, "Resident Aliens, Non-resident
Citizens and Voting Rights: Towards a Pluralist Theory of Transnational Political
Equality and Modes of Political Belonging," in Gideon Calder, Phillip Cole
& Jonathan Seglow, eds., Citizenship Acquisition and
National Belonging: Migration, Membership and the Liberal Democratic State (London: Palgrave Macmillan, 2009). These authors, among others,
reject the notion that extending voting rights to non-residents undermines
democratic legitimacy. However, no theoretical or philosophical writings on
either side of this debate were explored in the argument before us. I think
little is to be gained by reference to one or more of these scholarly writings.
D. Conclusion
257 For
the reasons of the application judge and these additional reasons, I would
dismiss this appeal.
J.I. LASKIN J.A.
