FRANK v. CANADA (ATTORNEY GENERAL), 2019 SCC 1

A law that prohibits people from voting in federal elections if they have been residing outside Canada for more than five years is unconstitutional, the Supreme Court ruled.

The Canada Elections Act lays out the laws for the general election in Canada. The Act states that any person of the age of 18 or older can vote if he or she normally lives in Canada. In this case, one of the laws contained in the Act was contested. It said that people who had been living overseas for less than five years and were preparing to return to Canada could now vote in federal elections. People who had lived overseas for more than five years usually did not vote. (Some exceptions were made, including for military and government workers posted to other countries.)

Two Canadian residents, Dr. Frank and Mr. Duong, were not allowed to vote in the 2011 Canadian federal election. This was because they’ve been living outside of Canada for more than five years. Both had close relations with Canada and wished to return if they could find suitable employment. Both Mr. Duong and Dr. Frank also contested the law that prohibited them from voting. They argued that it violated Section 3 of the Charter of Rights and Freedoms of Canada because it restricted them their right to vote, and so it was unconstitutional. Section 3 states (partly) that any resident of Canada has the right to vote in a federal election.

The Attorney General, on behalf of the federal government, has agreed that the law is in violation of Section 3. However, contended that in certain cases, infringements of the rights of the Charter could be permitted. Section 1 of the Charter notes that certain rights can be restricted, but only if the restriction is fair and can be justified in a free and democratic society. The judge who first heard the case said that the law restricting the right to vote was not warranted. The Court of Appeal objected and claimed that the law was constitutional. The majority of the Supreme Court ruled that the law ignored Section 3 and that Section 1 was not justified, so that the rule was repealed. It said that Canadian citizens should be permitted to vote in federal elections, even though they have been living overseas for more than five years. The majority noted that Section 3 did not mention anything about residency

In determining if a statute that contradicts the Charter is justified under Section 1, the courts first consider whether the law has a “pressure and meaningful purpose.” If it does, they will then decide whether it is “proportional” (i.e. whether it balances the intent of the rule and how it is achieved). In this situation, the majority said that the fairness of voters living in Canada and the fairness of elections were important priorities. But it said that the law was not proportionate. In order to be proportionate, it must be rationally (or logically) related to the intent of the Parliament. Second, the right to the Charter must be restricted as least as possible. Thirdly, positive and poor results need to be correctly balanced. In this situation, there was no proof that anybody had ever argued about non-resident voting, so the law did not appear to be rationally tied to the purpose of equal elections. But the majority did not need to make a clear vote on this since the law did not follow the other two conditions.

It harmed citizens’ interests more than necessary because it was so wide that people with close links to Canada were denied their right to vote. The majority also said that the negative consequences of the law outweighed the good ones. This decision indicates that the right to vote is a necessary and essential political right, not a simple luxury.