Canada: Supreme Court Strikes Down Expatriate Voting Restrictions: No "Social Contract" Justification

On January 11, 2019, a majority of the Supreme Court of Canada (SCC) ruled in Frank v. Canada (Attorney General) (Frank) that certain provisions in the Canada Elections Act (CEA), which denied federal voting rights to Canadian citizens who resided outside of Canada for more than five consecutive years, are unconstitutional. The majority concluded that the restrictions unjustifiably infringed the right to vote of "every citizen of Canada" in section 3 of the Charter of Rights and Freedoms (Charter).

BACKGROUND

Frank began with a constitutional challenge to the CEA by two Canadian citizens who were denied the right to vote in a federal election because they lived abroad for over five years.

At first instance, Justice M. Penny of the Ontario Superior Court of Justice observed that the Charter guarantees the right to vote based only on citizenship, not residence. Over a million Canadian citizens had been living abroad for more than five years and were subject to the voting restrictions at issue. He found that the impugned provisions infringed section 3 of the Charter and were not saved by section 1 (which allows reasonable limits of Charter rights). In so doing, he noted that the federal government's stated objectives of maintaining fairness to resident voters and the electoral system were not supported by concrete evidence.

On appeal at the Court of Appeal for Ontario, the government conceded the breach of section 3. However, it reframed the legislative objective and asserted that the residency requirement in the CEA, which limited non-resident voting preserved a "social contract" between state and citizen founded on a connection between a citizen's right to elect its lawmakers and obligation to obey the law. In a 2-1 decision, Chief Justice Strathy for the majority reversed the lower court, finding that preserving the social contract was a valid legislative objective and that the violation of section 3 was justified under section 1 of the Charter. In dissent, Justice J. Laskin was skeptical of the social contract objective, which he noted was a new argument that did not correspond with Parliament's intent when the law enacted.

SCC DECISION

Chief Justice R. Wagner, writing for a majority of the SCC, allowed the appeal and concluded that the residence requirements in the CEA unreasonably disenfranchised citizens in a manner that was not saved by section 1 of the Charter. Justice M. Rowe concurred in the result, albeit for different reasons. Justices Côté and Brown dissented.

In considering the nature of the right, the majority emphasized that voting is a fundamental political right which cannot be limited without a compelling justification, and that intrusions on this core right must be reviewed on a "stringent" justification standard: "[R]eviewing courts must examine the government's proffered justification carefully and rigorously in this context rather than adopting a deferential attitude."

On the legislative objective, the majority concluded that preserving the social contract was not a pressing and substantial objective for limiting the right to vote. As the Chief Justice stated: "social contract theory is just that: a theory. Preserving it is not an objective" and "the 'social contract' model that has been advanced in this case is devoid of content, and problematically vague". The majority agreed that promoting electoral fairness was a pressing and substantial objective, but that "denying voting rights to non-resident citizens simply because they have crossed an arbitrary five-year threshold does not withstand scrutiny."

Moving to the question of whether the means chosen by Parliament to pursue the electoral fairness objective were proportionate to the limitation of the right, the majority concluded that the voting restrictions were over-inclusive (and thus not minimally impairing), the five-year limit was arbitrary, and there was little evidence the measures were tailored to respond to a specific problem. The majority noted that the government failed to show any correlation between how long a Canadian has lived abroad and their degree of subjective commitment to Canada. Rather, it accepted that in a globalized world many Canadians living abroad "have deep political, familial, financial or cultural roots in Canada". It further recognized that non-resident citizens live with the consequences of Canadian legislation: "many laws have extraterritorial application and confer both benefits and burdens on non-resident citizens, including laws with respect to taxation, criminal law, foreign anti-corruption measures, government benefits and citizenship".

In determining that the infringement was not minimally impairing, the majority noted that: "[m]any of Canada's best and brightest citizens live abroad — and indeed are encouraged to do so — for such purposes as pursuing educational and professional opportunities, and in the course of their endeavours, they are often ambassadors of Canadian values", and that denying these citizens the right to vote "not only strikes at the heart of their fundamental rights, but also comes at the expense of their dignity and their sense of self-worth".

IMPLICATIONS

Following the decision in Frank, Canadian citizens who have lived outside the country for five years or more will be able to vote in federal elections. This result is particularly important for those who are not entitled to vote in their county of residence (meaning the voting restrictions had amounted to a complete disenfranchisement). The effect of the decision parallels a package of electoral reforms that came into effect with the passage of Bill C-76 in December 2018 (legislation introduced during the appeal). However, the decision goes further to constitutionalize the outcome beyond the policy reach of the government of the day.

More broadly, the majority's rejection of the social contract justification and its overall section 1 analysis indicate that government arguments for limiting Charter rights will continue to be closely scrutinized and subject to evidentiary requirements.

Blakes acted as counsel to the intervener the Canadian American Bar Association in this appeal.

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© 2018 Blake, Cassels & Graydon LLP.

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