Absentee Voting, Part II

Five and a half years ago, I wrote a comment on Slaw questioning why the Canada Elections Act precluded most non-resident Canadians from voting. The prohibition bothered me on a very personal level: I had many Canadian friends and acquaintances living abroad long-term, who almost without exception felt closely connected to Canada and invested in its future. Moreover, the ban was plainly inconsistent with the Charter, it lacked any clearly articulated justification, and it had been widely criticized. Yet no one seemed particularly moved to do much about it.

Well, I’m happy to admit I was mistaken. Someone did feel moved to do something about it. Two years ago, two Canadian citizens living in New York, Gillian Frank and Jaime Duong, represented by Shaun O’Brien of Cavalluzzo Shilton McIntyre Cornish LLP, brought an application in Ontario Superior Court seeking to strike down the prohibition. Last Friday, they succeeded.

I will not pretend to be impartial: I am absolutely thrilled. This decision is indisputably wonderful news for democracy in Canada. It is particularly welcome coming at a time when so many people – myself included – have felt that democracy is under threat. From the federal government’s monumentally ill-advised Fair Elections Act, to the continuing revelations about Ontario’s McGuinty government throwing away hundreds of millions of dollars to sway the last election, to the reality show farce of Toronto’s mercurial Mayor Ford, it hasn’t been an encouraging time to believe in the importance of the franchise.

Yet in Frank et al. v. A.G. Canada, 2014 ONSC 907, Mr. Justice Michael A. Penny unreservedly reaffirms how much this basic right matters:

In the impugned sections of the Act, the government is making a decision that some people, whatever their abilities, are not worthy to vote – that they do not “deserve” to be considered members of the community and hence may be deprived of the most basic of their constitutional rights. But this is not the lawmakers’ decision to make. The Charter makes this decision for us by guaranteeing every citizen’s right to vote and by expressly placing all citizens under the protective umbrella of the Charter through constitutional limits on the power of the government to limit a citizen’s right to vote. To deny non-resident Canadians the right to vote would be to deny an important means of maintaining the connection of the non-resident to his or her native land. […]

The slight impact on Canadian elections, assuming any, of allowing non-resident citizens to vote cannot outweigh the seriousness of the s. 3 breach in this case. Many Canadian citizens who reside outside the country for legitimate employment-related or other reasons and who maintain strong ties to and care deeply about Canada, are prevented from having a voice in Canada’s political life, while many others, both inside and outside the country, who may be less connected or concerned, are allowed to vote. [at paras. 97 and 150]

Congratulations to Messrs. Frank and Duong, and full credit to their counsel, the estimable Ms. O’Brien, for her impressive and exceptionally meaningful victory. This is in the very finest traditions of the bar.