Frank v. Canada (Attorney General), 2019 SCC 1
Constitutional law — Charter of Rights — Right to vote — Residence
The combined effect of ss. 11 (d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more the right to vote in a federal election unless and until they resume residence in Canada. The constitutionality of these provisions was challenged by two non‑resident Canadian citizens, who applied for a declaration that their right to vote entrenched in s. 3 of the Charter was infringed, and that the impugned provisions were unconstitutional. The application judge agreed, found that the impugned provisions could not be saved under s. 1 of the Charter , and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal. Although the Attorney General of Canada conceded that the impugned provisions breach s. 3 of the Charter , the violation of s. 3 was found to be justified.
Held 7-2 (Côté and Brown JJ. dissenting): The appeal should be allowed. Sections 222(1) (b) and (c), 223(1) (f) and 226 (f) of the Canada Elections Act are declared to be of no force or effect; the words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” are struck from s. 11(d) of the Act and are replaced with the words “an elector who resides outside Canada”; and the word “temporarily” is struck from ss. 220, 222(1) and 223(1)(e) of the Act.
Per Wagner C.J. and Moldaver, Karakatsanis and Gascon JJ.: As conceded by the Attorney General of Canada, the limit on the voting rights of long-term non-resident citizens breaches s. 3 of the Charter . This limit cannot be justified under s. 1 . In particular, the Attorney General of Canada has failed to show that limiting the voting rights of non-resident citizens is minimally impairing.
Since voting is a fundamental political right, and the right to vote is a core tenet of Canadian democracy, any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification. Intrusions on this core democratic right are to be reviewed on a stringent justification standard. Reviewing courts must examine the proffered justification carefully and rigorously rather than adopting a deferential attitude. Two central criteria must be met for a limit on a Charter right to be justified under s. 1 . First, the objective of the measure must be pressing and substantial. Second, the means by which the objective is furthered must be proportionate; this requires a rational connection to the objective, minimal impairment of the right, and proportionality between the effects of the measure and the objective. The proportionality inquiry is both normative and contextual, and requires that courts balance the interests of society with those of individuals and groups.
The integrity of the justification analysis requires that the legislative objective be properly stated. The relevant objective is that of the infringing measure, not, more broadly, that of the provision. In this case, the Attorney General of Canada has centrally and consistently asserted that the voting restrictions in question advance the objective of maintaining the fairness of the electoral system to resident Canadians. This is a sufficiently important legislative objective to ground the s. 1 analysis, and it can be a pressing and substantial concern even if the measures taken to achieve that objective impair the democratic rights of other citizens. This objective is sufficiently precise to continue the justification analysis.
The question at the first step of the proportionality inquiry is whether the measure that has been adopted is rationally connected to this objective. In cases where such a causal connection is not scientifically measurable, one can be made out on the basis of reason or logic. In this case, it must be shown that the infringement of non-residents’ voting rights is rationally connected to the legislative objective of ensuring electoral fairness to resident voters. Here, there is no evidence of the harm that these voting restrictions are meant to address. No complaint has been identified with respect to voting by non-residents, and no evidence has been presented to show how voting by non-residents might compromise the fairness of the electoral system. Furthermore, it has not been definitively shown that a limit of any duration would be rationally connected to the electoral fairness objective. Overall, however, it is not necessary to come to a firm conclusion on this point in view of the result at the minimal impairment stage.
The second component of the proportionality test requires evidence that the measure at issue impairs the right as little as reasonably possible. In this case, the limit on voting by non-residents is not minimally impairing. There is little to justify the choice of five years as a threshold or to show how it is tailored to respond to a specific problem. As well, the five-year limit is overinclusive. It improperly applies to people to whom it is not intended to apply, and it does so in a manner that is far broader than necessary. While it seeks to bar people from voting who lack a sufficient connection to Canada, no correlation has been shown between, on the one hand, how long a Canadian citizen has lived abroad and, on the other hand, the extent of his or her subjective commitment to Canada. Many non‑resident citizens maintain deep and abiding connections to Canada through family, online media and visits home, and by contributing taxes and collecting social benefits. Likewise, no correlation has been shown between residence and the extent to which citizens are affected by legislation. Non-resident citizens do live with the consequences of Canadian legislation: they are subject to Canadian legislation during visits home; Canadian laws affect the resident families of non-resident Canadians; some Canadian laws have extraterritorial application; government policies can have global consequences; and Parliament can alter the extent to which Canadian electoral legislation applies to non-resident citizens, which would make the constitutional right to vote subject to shifting policy choices.
At the final stage of the s. 1 analysis, it must be asked whether there is proportionality between the overall effects of the Charter -infringing measure and the legislative objective. In this case, any salutary effects of ensuring electoral fairness are clearly outweighed by the deleterious effects of disenfranchising non-resident Canadians who are abroad for five years or more. The benefits of the impugned legislation are illusory and speculative. It is unclear how the fairness of the electoral system is enhanced when long-term non-resident citizens are denied the right to vote. The deleterious effects on affected non-resident citizens, on the other hand, are serious. Denial of the right to vote, in and of itself, inflicts harm on affected citizens; proof of additional harm is not required. The disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity.
Per Rowe J.: There is agreement that the appeal should be allowed. The limit on voting in federal elections for citizens who have not been resident in Canada for five years or more constitutes an unjustified infringement of s. 3 of the Charter . However, any evaluation of this kind of limit should acknowledge the significance and centrality of residence to Canada’s system of representative democracy, and should not foreclose the possibility that residence requirements in another context might be constitutional.
Residence is significant because it establishes a connection to a particular electoral district and to the concerns of persons living there. While this aspect of Canada’s representative democracy is not constitutionally entrenched, residence has been historically and remains today more than just an organizing mechanism. It is foundational to Canada’s electoral system. However, its significance does not elevate residence to an inherent limit on the s. 3 right to vote.
Section 3 protects the right to vote, but it does not follow as a corollary that there is a right to vote in the constituency or province of one’s choosing. The provinces and territories have each crafted residence requirements that reflect the concerns and circumstances that are particular to their jurisdiction. The concession by the Attorney General of Canada that the impugned residence requirements infringe s. 3 does not prejudice provincial or territorial governments in arguing that their legislation does not do so. Different considerations will apply at the s. 1 analysis of any established or conceded breach of s. 3 at the provincial or territorial level, and evidence of the circumstances relating to the various residence requirements in each of the provinces and territories may well affect the analysis.
In this case, promoting electoral fairness for resident Canadians is a pressing and substantial objective, and the impugned measures are rationally connected to this objective. If the law’s legitimacy derives from the fact that those who are subject to it are the ones who indirectly create it, then it is unfair that individuals who are not subject to or affected by the law can decide for those who are. Long-term non-residents are likely to be less connected to any Canadian community. Individuals who have not lived in a constituency for over five years are less likely to be informed about the issues affecting that constituency, and long‑term non-resident voters who have no intention to return will not feel the impacts of federal laws and policies as they manifest themselves at the local level. Similarly, at the national level, those who have not lived in Canada for a long time are likely to be less connected to Canada and are affected by Canadian law to a far lesser degree than are resident Canadians.
However, the impugned measures ultimately do not withstand s. 1 scrutiny, as the salutary effects 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. The primary salutary effect of the impugned measures is that long-term non-residents will not cast a decisive vote in a constituency in which they are not resident, and therefore, the local representative will not be selected (in part) by individuals from outside the constituency. However, this salutary effect has not been shown to be consequential: there is almost no evidence of the impact that long-term non-residents would or could have had either locally or nationally if permitted to vote, and the evidence that exists suggests that the impact would likely be negligible, since a very small number of Canadians living abroad who are currently eligible to vote choose to exercise that right. By contrast, the deleterious effects of the provisions on long-term non-residents are clear: they cannot vote. While they may not feel the local consequences of particular federal policies in the constituencies in which their votes would be counted, they stand nonetheless to be affected by certain federal laws and policies. Furthermore, the right to vote is not merely instrumental. Denying long-term non-residents the right to vote denies them the opportunity to participate, through their vote, in the formation of policy and the functioning of public institutions.
The fundamental point of disagreement with the majority lies in the proper judicial approach to the limitations analysis under s. 1 of the Charter . No right is absolute, including Charter rights such as the s. 3 right to vote. However, to speak of an “infringement” based solely on the fact that an impugned measure imposes a limit on a Charter right distorts the s. 1 analysis. The Charter cannot and should not be read so as to ever allow for justified infringements. The text of s. 1 speaks not of reasonable and demonstrably justifiable infringements, but of reasonable and demonstrably justifiable limits. A reasonable limit is inherent in the right itself, shaping the right’s outer boundaries. A right is infringed only where the right, as reasonably limited, is breached; as such, an “infringement” is a limit that is not justified. A conceptually sensible and textually faithful account of the s. 1 analysis thus properly focuses on whether a limit on a Charter right is justified. The issue presented by this appeal, then, is not whether the limit to the right to vote effected by the restriction on long-term non-resident voting justifies an infringement of s. 3 , but whether that limit is unreasonable, such that s. 3 is infringed.
The first step in the limitations analysis is to identify the objective behind the impugned measure and determine whether it is sufficiently important to justify the limit on a Charter right. Identifying the objective of a rights-limiting measure enacted by a legislature raises the methodological difficulty that the objective may not be immediately apparent. The difficulty is augmented where the impugned limitation arises by the absence of legislative action. Context — being both the present and past state of the law — is essential to the proper characterization of the objective. However, there should be some circumspection in relying upon parliamentary debates to identify the legislative objective of a provision, as the intent of particular members of Parliament is not the same as the intent of Parliament as a whole.
Here, there is a clear and readily discernable purpose behind the legislative design as a whole: Parliament sought to privilege a relationship of some currency between electors and their communities. This objective is sufficiently pressing and substantial to survive scrutiny under s. 1 . 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 a line at citizens who have a current relationship to the community in which they seek to cast a ballot. Parliament is permitted, within limits, to shape the scope of voting rights under s. 1 . While most Charter rights are negative in the sense that they preclude the state from acting in ways that would impair them, the right to vote is a positive entitlement. It requires legislative specification in order for the right to be operative. Limits to the right to vote can be justified, because some specification of the right to vote (whether to account for age, or the currency of relationship between electors and the communities they represent) is necessary. As well, the Act contains a range of restrictions on voting — including withholding the vote from Canadian citizens who have never before lived in Canadaand Canadian citizens under the age of 18 — which are no less the product of principled and unavoidably philosophical reasoning than is the long-term non-resident restriction. The limitations analysis must be flexible enough to account for Parliament’s ability to legislate in pursuit of philosophical, moral or otherwise normative considerations. The appropriate inquiry in limitations analysis is, therefore, not whether Parliament’s legislative objective rests on such considerations, but whether the objective that it pursues is pressing and substantial.
In this case, the restriction at issue is a residence requirement. Residence has been described as a fundamental requirement of the right to vote. While citizenship is a necessary requirement to vote, it is therefore not the only constitutionally permissible limit. Citizenship is a status. It does not itself indicate a relationship of any currency to a particular Canadian community. Parliament, not unreasonably, deemed residence or recent residence to be indicative of this relationship. The fact that the Act includes certain exceptions to the residence rule supports the notion that a relationship of currency is essential. Preserving a relationship of currency between electors and their communities by limiting long‑term non-resident voting ensures reciprocity between exercising the right to vote and bearing the burden of Canadian laws. The reciprocity principle justifies limiting non-resident voting precisely because long-term non‑residents are not generally subject to Canadian laws. It is unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district. Preserving the relationship between electors and their communities through limits on long-term non-resident voting also protects the integrity of the Canadian electoral system, which is founded on geographical representation. The s. 3 voting right is premised upon electors voting for a representative of their community. This regional structure must therefore inform any consideration of the electoral system, and Canadians’ participation therein. Limiting long-term non-resident voting ensures that the electors residing in a particular constituency, who share a community of interests that is typically derived at least in part from geographical proximity, retain the power to decide for themselves who would best advance those shared interests on their behalf in the House of Commons.
The second question in the limitations analysis asks whether the means that Parliament selected to pursue its objective are proportionate to the rights limitation — i.e., whether the measure is rationally connected to the objective; whether the measure minimally impairs a claimant’s Charter rights; and whether there is proportionality between the effects of the measure and the objective. The inquiry is not to ask what the Court prefers, but whether the limit was one that Parliament could reasonably impose. This is particularly so in the case of a challenge to Canada’s election laws, in respect of which the Court has previously held that a natural attitude of deference is required. In this case, the means by which Parliament chose to pursue its objective are proportionate. A five‑year non-resident cut‑off was a reasonable and constitutionally permissible demarcation. The measure is rationally connected to the objective of preserving a relationship of currency between electors and their communities because it logically distinguishes short-term from long‑term non-residents. Five years corresponds to the maximum length of a Parliament, thereby ensuring that all non-residents can vote in at least one election after leaving Canada, and it is sufficiently long to permit students who travel abroad to study to complete their programs without foregoing the ability to vote. The limit is also minimally impairing because, on balance, a five‑year time period falls within the range of reasonable options that were open to Parliament and within the range of limits adopted by other internationally respected liberal democracies sharing Canada’s parliamentary framework. Opening the vote to long-term non‑residents would not be an example of progressive enfranchisement; rather, it would be a regressive development, undermining the longstanding and entirely salutary practice in Westminster parliamentary democracies of privileging local connections in deciding who may elect local representatives.
In the final balancing, the salutary effects of preserving the integrity of Canada’s geographically based electoral system and upholding a democratically enacted conception of the scope of the right to vote in Canada are significant. The deleterious effect of denying some citizens the right to vote is not insubstantial, but it is tempered by the fact that the restriction is reversible rather than permanent, as any adult Canadian citizen can still exercise the right to vote at any point, provided that he or she re‑establishes residence in Canada. Thus, the restriction at issue is not a permanent denial of the right to vote. Just like the age requirement, it represents a distinction based on the experiential situation of all citizens in that category; it is not a distinction based on moral worth. The deleterious effects of the limit are therefore of less significance, and are outweighed by the salutary effects.
Reasons for Judgment: Wagner C.J. (Moldaver, Karakatsanis and Gascon JJ. concurring)
Concurring Reasons: Rowe J.
Joint Dissenting Reasons: Côté and Brown JJ.
Neutral Citation: 2019 SCC 1
Docket Number: 36645