The Ontario Court of Appeal’s July 20, 2015 judgment in Frank v. Canada has attracted significant media attention. Chief Justice Strathy (Justice Brown concurring) overturned an application judge’s decision and upheld the constitutionality of legislation that removed the federal voting rights of most non-resident Canadian citizens who have lived abroad for five years. Justice Laskin wrote a vigorous dissent. (We previously discussed Justice Sharpe’s refusal to grant a stay of the application judge’s decision here.)

The decision also raised an issue of appellate practice, about the circumstances in which the government can recast its justification for a rights-infringing law on appeal. The Court was divided on this issue as well.

Background

The Attorney General of Canada (the “Attorney General”) conceded that the legislation at issue infringed the voting rights guaranteed by s. 3 of the Canadian Charter of Rights of Freedoms (the “Charter”). Before the application judge, the Attorney General argued that the legislation was justified under s. 1 of the Charter because, among other reasons, it furthered the pressing and substantial objective of “fairness to resident voters”.

On appeal, the pressing and substantial objective the Attorney General emphasized was “preserving the social contract” – the social contract being a political theory that posits that the electorate submits to the laws because of its role in making them.

Chief Justice Strathy’s Majority Reasons

Despite concerns raised by Justice Laskin, Chief Justice Strathy did not engage in an in-depth analysis as to whether the Court should consider this primary pressing and substantial objective put forward by the Attorney General on appeal. This may have been because the respondents did not appear to object to the Court addressing this argument. Moreover, Chief Justice Strathy appeared to believe that this objective was implicit in the “fairness to resident voters” objective presented to the application judge:

[92]      In fairness to the application judge, it appears that the appellant did not expressly invoke the social contract in its submissions before him. Instead, it framed its submission as “fairness to resident voters”, who live with the consequences of the laws for which they vote.

He addressed concerns about fairness to the application judge as follows:

[104]    … The application judge acknowledged [the social contract] argument, which he described as the argument that “resident Canadians live here and are, on a day-to-day basis, subject to Canada’s laws and live with the consequences of Parliament’s decisions.” He did not, however, in my respectful view, give sufficient consideration to the nature of Canadian parliamentary democracy, the social contract and the role played by residence in both. This caused him to reduce residence to an organizing concept and to overlook the legitimizing effect of the social contract.

[105]    Couched as it was in terms of “unfairness to resident voters”, it is understandable that the application judge discounted the argument. […]

Chief Justice Strathy accepted the pressing and substantial nature of this objective, and found the legislation to be constitutional under s. 1 of the Charter. In doing so, he noted that the application judge’s “mischaracterization of the objective” led him to erroneously conclude that there was no rational connection between the legislation and its objective.

Justice Laskin’s Dissent

Justice Laskin held that it was “evident” that the objective of preserving the social contract was a new argument raised for the first time on appeal and was “dubious” that the Attorney General could raise it. He could find no evidence of this position in the detailed decisions of the application judge or Justice Sharpe on the stay motion. (The social contract was not mentioned once in the factum for the stay motion but was mentioned 27 times on the factum for the appeal.) Justice Laskin did not conclusively decide that the Court should not entertain this argument, perhaps because it did not affect his proposed disposition of the appeal, and perhaps because the respondents did not object to addressing the argument. In obiter dicta, he nonetheless expressed serious doubts about the proper course of action:

[192]    It might seem that preservation of the social contract is merely a rhetorical gloss on unfairness. But I see them as fundamentally different, both in form and substance. The form, the label “social contract”, obviously differs from unfairness. So too does the substance. The fairness argument put to the application judge is one-sided: residents are subject to more laws than non-residents, so it would be unfair to residents to permit non-residents to vote. Preservation of the social contract, however, as [Chief Justice] Strathy […] notes, is not one-sided – it rests on reciprocity and mutuality: only those obliged to obey the laws can legitimately elect their lawmakers.

[193]    Furthermore, the Attorney General has put forward no evidence about the nature or basis of this social contract, which he uses to justify restricting the voting rights of more than one million Canadian citizens. The Attorney General’s argument evidently presumes that the “social contract” has an objective and identifiable content, closely linked to residence. Yet as I have said, in the more than 9000 page application record, the social contract is not mentioned once. The evidence he put forward in support of his fairness argument does not address the social contract on which he now relies.

[194]    What then follows? First, it is surely unfair to criticize the application judge for failing to consider an argument not made before him. Second, this court has understandably been wary about considering new arguments raised for the first time on appeal. It will only do so if it has a proper evidentiary record and if considering the new argument is not unfair to the responding parties […]

[195]    The responding parties have dealt with the social contract argument in their factums, and have not suggested any unfairness. I am concerned, however, about the record, or more accurately the absence of anything in the record that touches on the social contract. […] For that reason I have serious doubts about whether this court should entertain this argument.

Justice Laskin proceeded to explain why he would dismiss the appeal for several other reasons.

Conclusion

Given the issues of constitutional law raised in Frank, which divided the Court of Appeal, it would seem quite possible that Supreme Court will grant leave to appeal the decision. If it does so, it will be interesting to observe how it analyzes these issues of appellate practice.