Supreme Court Of Canada Releases Its Decision On The Right To Vote Of Canadians Living Abroad

In a landmark decision released last week, the Supreme Court of Canada has removed the restriction on voting for Canadian citizens living abroad. In Frank v. Canada (Attorney General), 2019 SCC 1, plaintiffs Gillian Frank and Jamie Duong challenged the constitutionality of ss. 11(d) and 222 of the Canada Elections Act ("CEA") on the grounds that they infringe the right to vote protected by s. 3 of the Canadian Charter of Rights and Freedoms. Before the decision, the CEA did not allow Canadian citizens to vote in federal elections if they had been out of the country for five consecutive years or more, with some special exemptions. The Supreme Court not only extended this timeframe, but struck it down altogether; Canadian electors, that is, citizens otherwise eligible to vote, will henceforth retain their voting rights despite residing outside the country for any length of time, as long as they have lived in Canada at some point.

Chief Justice Wagner for the majority reasoned that, due to the importance of voting rights, any limits to them must be carefully scrutinized by the Court. The Attorney General of Canada conceded during argument that s. 3 of the Charter was breached by the relevant provisions of the CEA, so the Court's analysis turned on a s. 1 test to determine whether the breach was justified.

On the first branch of the test, the Court found that the objective of the limiting provisions was indeed pressing and substantial, as they sought to protect the integrity of the voting system in Canada, however, the residential limits on voting did not stand up to a proportionality analysis.

The Court found that there had been no evidence presented of a rational connection between residence-related limitations on voting and the integrity of the electoral system. It noted that the Attorney General had failed to produce any records of complaints, studies, or other evidence indicative of any harmful effects of allowing out-of-country citizens to vote. In fact, there had instead been four government studies on voting rights that advocated for the removal of residence-based limits. Wagner C.J. also noted Canada's position on the world stage as a leader in progressive enfranchisement, for example, it is one of only a handful of democracies that allows voting rights to those with mental disabilities. It therefore rejected evidence in the form of similar residential voting restrictions in other countries, deeming them unhelpful comparisons.

The...