1 CHARTER CASE STUDY Name Course Date 1 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. 2 Supreme Court of Canada. 1 2 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 4 Anita Balakrishnan. 5 Anita Balakrishnan. 6 Anita Balakrishnan. 3 3 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 7 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. 8 4 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. 9 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/. 11 Andy J. Semotiuk. 10 5 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. 6 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.
