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Frank & Duong v. Canada (Attorney General)

This case concerns the disenfranchisement of non-resident Canadian citizens. Subject to certain specific exceptions, under the Canada Elections Act, non-resident Canadian citizens who have lived outside Canada for five consecutive years or more are not entitled to vote in federal elections unless and until they re-establish residence in Canada. Two Canadian citizens residing in the US for more than five years brought a challenge to the law on that basis that the provisions taking away their right to vote violate section 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 law violates section 3 voting rights. Justice Penny found that the only limit on the right to vote is citizenship, and that residence is not a fundamental pre-condition to exercising the right to vote. The judge went on to find that the objectives of the law put forward by the government – democratic fairness and mitigating electoral fraud – were not supported by evidence and did not amount to pressing and substantial objectives. The judge further found that there was no rational connection or minimal impairment between those objectives and the five-year period past which the right to vote is extinguished for non-resident citizens.

The BCCLA is an intervener in this case. The BCCLA’s submissions support the application of a strict standard of justification concerning the “pressing and substantial objectives” put forward by the government when seeking to limit individuals’ rights.

The BCCLA’s argument in this case can be found here.

The BCCLA is represented by Brendan van Niejenhuis and Justin Safayeni of Stockwoods LLP.

Court of Appeal for Ontario

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