Toronto – Tomorrow, the Court of Appeal for Ontario will begin hearing Frank v. AG Canada. This case concerns the right of Canadian citizens to vote in federal elections while residing outside the country.

Subject to limited exemptions such as military service or work for certain organizations abroad, non-resident Canadian citizens who have lived outside Canada for five consecutive years or more are not permitted to vote in federal elections unless and until they re-establish residence in Canada. Two Canadian citizens residing in the United States for over five years brought a challenge to the law on the basis that the provisions of the Canada Elections Act violate their right to vote protected by s. 3 of the Canadian Charter of Rights and Freedoms. Section 3 provides that “every citizen of Canada has the right to vote in an election of members of the House of Commons.”

The claim was successful at the Ontario Superior Court, where the judge found that the only limit on the right to vote is citizenship, and that residence is not a pre-condition to exercising that fundamental democratic right. The court went on to rule that the government’s stated objectives for the law, namely, democratic fairness and mitigating electoral fraud, were not supported by evidence and did not amount to pressing and substantial objectives for a law that restricts the right to vote. The five year period beyond which the right to vote is extinguished for non-resident Canadians was also found not to be rationally connected or minimally impairing even if the government objectives were accepted as sufficiently pressing and substantial.

The BCCLA is an intervener in this case before the Court of Appeal for Ontario. The BCCLA argues in favour of applying a strict standard of justification when assessing government action that seeks to limit individuals’ rights. In this case, the BCCLA submits that the government has failed to identify a specific, concrete harm that it seeks to remedy, or to provide any evidentiary basis on which it may be concluded that such harm exists. Moreover, the BCCLA argues that there is no rational connection between the deprivation of the fundamental democratic rights of non-resident voters and the government’s objectives.
The BCCLA is represented Brendan van Niejenhuis and Justin Safayeni of Stockwoods LLP.

The BCCLA’s argument in this case is available here.

• What: Court of Appeal for Ontario to hear oral arguments in Frank v. AG Canada
• When: Oral arguments to begin on Tuesday, January 6, 2015
• Where: Court of Appeal for Ontario (Toronto, ON)
• Who: Representatives of the BCCLA available for comment