News & Events News Supreme Court strikes down federal voting limits on Canadian expatriates

Supreme Court strikes down federal voting limits on Canadian expatriates

January 12, 2019

The Lawyer’s Daily talks to Louis Century about a landmark judgment on voting rights

On January 11, 2019, the Supreme Court of Canada released its decision in Frank v. Canada (Attorney General), an appeal challenging a provision of the Canada Elections Act that stripped the right to vote from Canadian citizens who lived outside Canada for more than 5 years.

A majority of the Court held that the provision violated s. 3 of the Canadian Charter of Rights and Freedoms (the right to vote) and could not be justified in a free and democratic society. In its review of the decision.

The Lawyer’s Daily spoke to Louis Century who acted for the intervenor David Asper Centre for Constitutional Rights in the appeal:

Louis Century of Toronto’s Goldblatt Partners, who with University of Toronto law professor Audrey Macklin represented the intervener David Asper Centre for Constitutional Rights, said the judgment is important because the majority reaffirmed — rather than watered down — its stance in Sauvé v. Canada (Chief Electoral Officer) 2002 SCC 68, that the right to vote is fundamentally important.

“When an elected government removes the right to vote of a group of citizens, Parliament harms not only the rights holder who is denied the franchise, but also its own democratic legitimacy,” Century said.

He added that “there was some concern that, faced with the circumstances of non-resident citizens, the Supreme Court might dilute the law under s. 3, which could have real negative consequences for the democratic rights of citizens within Canada as well. Instead, Chief Justice Wagner doubled down on Sauvé. In no uncertain terms, he said limits on the right to vote will be ‘carefully scrutinized and cannot be tolerated without a compelling justification.’ ”

Century said the majority also vindicated Justice John Laskin’s powerful dissent in the Ontario Court of Appeal below which rejected the “social contract theory” as a justification for infringing democratic rights under s. 1 — a point which could be useful for future constitutional cases.

“The court took issue with the objective [of the law] as ‘problematically vague’ and ‘devoid of content’,” he noted. “More specifically, it accepted an argument advanced by the Asper Centre that the social contract objective essentially collapsed any distinction between the objective of the law and the law itself — between means and end.”

Yet Century noted that the point of s. 1 is to test the law against its purpose. “That cannot happen if the government advances an objective that is really a disguised way of describing the law itself,” he pointed out. “In this case, the government essentially said ‘we need to exclude non-resident citizens from democracy in order to advance a conception of democracy (the ‘social contract’) in which non-residents are excluded.’ It’s circular.”

Century said the majority’s insistence on a meaningful distinction between means and end is important for analysis under both Charter s. 1 and s. 7 (fundamental justice). “Although the court accepted a related objective as electoral fairness as pressing and substantial, the reasons rejecting the social contract objective will give constitutional litigators another tool to argue that vague objectives should fall at the first stage of the Oakes test,” he said.

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