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CHARTER CASE STUDY
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The supreme court of Canada ruled that the government was not justified in denying
ballots to two Canadians who had lived in the united states for five consecutive years or
more. The decision was arrived at after a five-to-two split1. The supreme court had granted
an appeal from the appellants from the court of appeal. The court's decision struck down the
Canada Elections Act that prohibited people who had been in Canada for less than five
consecutive years and intended to return to Canada from voting. The judge who first heard
the case ruled that the law limiting the right to vote was not justified, a decision that was later
overturned by the court of appeal.
The appellants, Gillian Frank and Jamie Duong traveled to the US for further studies
at ivy league universities. They planned on returning to Canada after finding suitable
employment. However, they were denied ballots in the 2011 elections due to the restrictions
outlined in the Canada Election Act. The denial came even though Frank's traveled to Canada
frequently as his wife and the immediate family lived there. The Act's prohibitions applied to
everyone regardless of whether they were paying tax or not or whether they had an interest in
domestic affairs. Shortly before the ruling was made, the Treadau government passed bill-76
The Elections Modernization Act, which removed the restrictions. The Act, however, failed
to address the issue of whether future governments could impose the restrictions again or
stricter restrictions2. The decision was in line with the lower court ruling that found the law
limiting voting unjustified and unconstitutional. The judges in the majority decision were
Chief Justice Richard Wagner and Justices Andromache Karakatsanis, Michael Moldaver,
Clément Gascon, and Malcolm Rowe. The judges' primary reasoning was whether the
government represented by the Attorney General of Canada (AGC) met the criteria for
limiting a right guaranteed by the charter of rights and freedoms. Section 3 of the charter
Supreme Court of Canada, “SCC Case Information - Search,” Supreme Court of Canada, December 3, 2012,
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17446/index.do.
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Supreme Court of Canada.
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upholds the right of every citizen to "…vote in an election of members of commons of a
legislative assembly and qualify for membership therein."3 Section 1 of the charter holds that
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society."4
The judges held that the government needed to meet two criteria to limit voting under
section one. The two criteria are, one, the objection of measure must be pressing and
substantial. Two, how the objective is furthered must be appropriate, requiring a rational
connection to the objective, minimal impairment of the right, and proportionality between the
measure's objective and effects. The judges wrote that there was little evidence"… to justify
the government's choice of five years as a threshold or how it is tailored to respond to a
specific problem."5 They also ruled that the five years were over-inclusive, and it applies to
people it was originally not intended to apply more broadly than necessary.
The charter does not allow Canadians to vote in any province as they are only to vote
in the voting districts that they reside. According to the judges, the residence is only a
foundation of the Canadian electoral system that establishes voters' connections to certain
districts but should not hinder people's ability to vote. According to judge Rowe," the salutary
effect of promoting fairness for resident Canadians are outweighed by the deleterious effects
of denying long-term non-resident Canadians the right to vote in federal elections."6
Russel Brown and Suzanne Côté dissented and wrote that the appeal was not whether
the alleged infringement on the right to vote but rather whether the law's limit was
Anita Balakrishnan, “Supreme Court of Canada Upholds Voting Rights for Canadians Living Abroad,”
Canadian Lawyer (Canadian Lawyer, January 11, 2019),
https://www.canadianlawyermag.com/news/general/supreme-court-of-canada-upholds-voting-rights-forcanadians-living-abroad/275773
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Anita Balakrishnan.
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Anita Balakrishnan.
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Anita Balakrishnan.
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unreasonable. They defended the law saying that "Parliament was quite properly striving to
shape the boundaries of the right by enacting legislation governing the terms on which
elections are conducted, by drawing the line at citizens who have a current relationship to the
community in which they seek to cast a ballot."7 Expatriates who had not lived in the country
for five consecutive years were deemed to lack a current relationship with the community.
They also established that the adverse effects were reversible about the right to vote.
According to them, Canadian citizens who had been restricted from voting are still eligible to
vote as long as they establish the residence in Canada. Therefore, the restriction is not an
infringement on the right to vote as it did not permanently restrict citizens from voting. They
liked the restriction on the age requirement in voting, which represents a distinction based on
all citizens' experimental situations that fall under the category. The distinction is based on
moral worth, thus should be upheld.
The dissenting judges' principle was that parliament should be able to limit nonresident's right to vote. The proposal does not necessarily mean that parliament has unlimited
authority in the matter; rather, it should only be allowed to do so for the right set of reasons.
They were willing to give parliament the benefit of the doubt, which is an exhibition of them
being deferential to parliament8.
The ruling set important precedence on similar cases in the future. First, globalization
trends have resulted in constant migration among people searching for job opportunities;
hence the number of Canadian expatriates is likely to increase. The notion of tying the right
to vote to ownership of property, therefore, seems outdated. Similarly, Canada's political
community, like most democratic nations, is defined by citizenship rather than residency. The
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Anita Balakrishnan.
Gowling WLG, “Supreme Court of Canada - Frank v. Canada (Attorney General),” Lexology, January 14,
2019, https://www.lexology.com/library/detail.aspx?g=88ca89c6-5fc0-4667-983d-8f478b36df33.
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Elections Modernization Act passed by the government shortly before judgment failed to
address whether future governments could enact voting limitations. Future governments
could introduce similar restrictions, especially if they are unpopular with the expatriate
community9. However, the ruling impedes such from occurring in the future, thus guiding
where legislation did not.
The court recognized the liberal perspective that the denial of the right to votes inflicts
harm on citizens. Proof additional harm arising from the restrictions is therefore not
necessary to prove the harm incurred. Such restrictions affect the non-resident citizens
democratic right and their dignity since their voice is not heard.
The ruling has also set global precedence, given that other countries are facing the
same issues and may learn from Canada. Canada recognizes the need to disfranchise
expatriates who maintain close interest and connections back home. The Act recognizes the
concerns of the government's concerns on the constitutionality and fairness of elections. The
ruling strengthens democracy by allowing more people to vote. As of 2019, the number of
expats eligible for voting was at over 3 million. A large number of votes could also take the
countries to the next level as three million is a sizable chunk of the population given that the
liberal party won the 2015 elections with 6.9 million votes10. South Africa and Nepal are
examples of countries that face similar issues as both countries have a sizable chunk of
people as expatriates11. As such, the ruling sets a precedence for future Canadian cases but
internationally, thus boosting Canada's standing among nations.
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Gowling WLG,.
Andy J. Semotiuk, “Canadian Ex Pats In The U.S. Win Right To Vote Back Home,” Forbes (Forbes
Magazine, January 16, 2019), https://www.forbes.com/sites/andyjsemotiuk/2019/01/16/canadian-ex-pats-in-theu-s-win-right-to-vote-back-home/.
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Andy J. Semotiuk.
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The ruling is very relevant concerning the present dynamic world. People need not be
restricted to a single country, especially Canada, Mexico, and the USA, to minimize border
restrictions. More Canadians are bound to work abroad; hence the ruling is very convenient.
The ruling is adequate hence should not be changed unless it is being modified in citizens'
interests and democracy. Parliament should not be allowed to tamper with people's right to
vote as it may not be genuine at times due to political interests.
Frank V Canada (AGC), in its ruling, set precedence aimed at safeguarding the
citizen's right to vote. As the ruling held, the right to vote should not be determined by a
person's residency; rather, it should be determined by citizenship. Therefore, this ruling has
set a precedent that is useful and applicable to Canada and other countries.
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Bibliography
Balakrishnan, Anita. “Supreme Court of Canada Upholds Voting Rights for Canadians
Living Abroad.” Canadian Lawyer. Canadian Lawyer, January 11, 2019.
https://www.canadianlawyermag.com/news/general/supreme-court-of-canada-upholdsvoting-rights-for-canadians-living-abroad/275773.
Semotiuk, Andy J. “Canadian Ex Pats In The U.S. Win Right To Vote Back Home.” Forbes.
Forbes Magazine, January 16, 2019.
https://www.forbes.com/sites/andyjsemotiuk/2019/01/16/canadian-ex-pats-in-the-u-swin-right-to-vote-back-home/.
Supreme Court of Canada. “SCC Case Information - Search.” Supreme Court of Canada,
December 3, 2012. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17446/index.do.