Ontario Court of Appeal Denies Over A Million Long-Term Canadian Expats Right to Vote

Update:

The Court of Appeal for Ontario, overruled a May 2, 2014 Superior Court of Appeal decision today, that stated that Canadians living outside of Canada for five (5) or more years, should be allowed to participate in the Federal Election by voting. The rule disenfranchising Canadians who have been abroad for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and their knowledge of domestic politics.
The Court of Appeal for Ontario, overruled a May 2, 2014 Superior Court of Appeal decision today, that stated that Canadians living outside of Canada for five (5) or more years, should be allowed to participate in the Federal Election by voting. The rule disenfranchising Canadians who have been abroad for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and their knowledge of domestic politics. The Appeal Court was invited to rule on the constitutionality of sections 11(d) and 222(1)(b) of the Canada Elections Act, which denies Canadian expats who have been living outside of the country for more than five years from voting in Federal Elections. The Court agreed that this was a violation of section 3 of the Charter.

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Allowing Canadians who have lived abroad for more than five years to vote in federal elections would be unfair to those who live in Canada, Ontario’s top court ruled Monday.

In a split decision, the Court of Appeal overturned a ruling that had restored the right of more than one million long-term expats to vote.

Canada’s “social contract” entails citizens submitting to laws because they had a voice in making them through voting, the ruling states.

“Permitting all non-resident citizens to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence for their own daily lives,” Justice George Strathy wrote for the majority of the court’s judges.

“This would erode the social contract and undermine the legitimacy of the laws.”

Today's Court of Appeal of Ontario decision will ensure that expats living outside of Canada, for five (5) or more years, will not be registered to vote or able to vote in the October 19, 2015 decision.
Today’s Court of Appeal for Ontario decision will ensure that expats living outside of Canada, for five (5) or more years, will not be registered to vote or able to vote in the upcoming October 19, 2015 Federal Election.

Strathy said the relevant part of the Canada Elections Act aimed to strengthen the country’s system of government. While it infringed on the rights of the expats, he said, the infringement is reasonable and can be justified in a free and democratic society.

This summer, as many as 1.4 million Canadians living abroad lost their right to cast ballots in the Oct. 19 federal election because they are expats. Harper knew when he insisted on the change to the voting laws, that most of those 1.4 million Canadians would not vote Conservative and this is the reason that he insisted upon this restriction on voting from abroad.
This summer, as many as 1.4 million Canadians living abroad lost their right to cast ballots in the upcoming Oct. 19/15  federal election because they are expats.
Harper knew when he insisted on the change to the Canada Election Act, that most of those 1.4 million Canadians would not vote Conservative and this is the reason that he insisted upon this restriction on Canadians voting from abroad. He also ensured that Canadians cannot used use the Voter Information Card (VIC) as a proof of identity and address, although 400,000 used the VIC in the 2011 Federal Election.  It appears that Harper is making it harder to vote, rather than easier to vote in Federal Elections.

Two Canadians living in the United States — Montreal-born Jamie Duong and Toronto-born Gillian Frank — launched the constitutional challenge, arguing the five-year rule was arbitrary and unreasonable.

Both argued they had only left for educational and employment opportunities and still had strong attachments to Canada and a stake in its future.

The Supreme Court of Canada. The Federal government appealed the May 2, 2015 Superior Court of Justice decision allowing expats to vote. No doubt, today's Court of Appeal for Ontario's decision (not allowing citizens living outside of Canada for five (5) or more years) will be appealed (by Gillian Frank & Jamie Duong) to the Supreme Court of Canada. Chances are the Supreme Court will disagree with the Court of Appeal's decision, but not in time for the October 19, 2015 Federal Election.
The Supreme Court of Canada. The Federal government appealed the May 2, 2015 Superior Court of Justice decision allowing expatriates to vote. No doubt, today’s Court of Appeal for Ontario’s decision (not allowing citizens living outside of Canada for five (5) or more years) will be appealed (by Gillian Frank & Jamie Duong) to the Supreme Court of Canada. Chances are the Supreme Court will disagree with the Court of Appeal’s decision, but not in time for the October 19, 2015 Federal Election.

In May last year, Superior Court Justice Michael Penny threw out the voting ban, noting that mass murderers have the right to cast ballots, but long-term expats who care deeply about the country do not. Penny also said expats could well be subject to Canadian tax and other laws.

The Appeal Court said Penny’s judgment was clouded by the government’s assertion that expats “do not have the same connection” to Canada as residents.

“This caused the debate to be cast as whether non-resident citizens were worthy of the vote,” said Strathy. “As a result, he overlooked Canada’s democratic tradition and the importance of the social contract between Canada’s electorate and Parliament.”

In a dissenting opinion, Justice John Laskin said he considered Penny’s judgment to be persuasive. He also said the government never argued that “preserving the social contract” justified the charter breach. Either way, Laskin said, it is not a good reason to limit voting rights.

As a result of the federal government's appeal of the Superior Court decision, over a million Canadians living outside of Canada will not be able to vote in the October 19, 2015 Federal Election. This decision is headed to the Supreme Court of Canada, but won't get there quick enough to allow expats to vote in the October 19, 2015 Federal Election.
As a result of the federal government’s appeal of the Superior Court decision, over a million Canadians living outside of Canada will not be able to vote in the October 19, 2015 Federal Election. This decision is headed to the Supreme Court of Canada, but won’t get there quick enough to allow expats to vote in the October 19, 2015 Federal Election.

The rule disenfranchising Canadians who have been abroad for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and their knowledge of domestic politics.

However, the five-year clock reset for those who returned even for short visits until 2007, when Elections Canada began enforcing a requirement for expats to “resume residency” in Canada to regain their right to vote abroad.

The Conservative government had argued the five-year rule was reasonable and in line with international norms.

Although the legislation technically applies to more than one million expats, records show only about 6,000 of them actually voted in the 2011 election.

On Friday, the government won another court case, allowing it to bar the use of voter information cards as a valid form of identification.

In his 25-page decision, Superior Court Justice David Stinson refused to grant an injunction against the provision that strips the use of voter information cards as a form of identification. In 2011, 400,000 voters used the voter information card as valid ID as part of a pilot project. Although Justice Stinson found that there was a serious issue to be tried and that there would indeed be irreparable harm to any disenfranchised voters, he denied the injunction. Instead of fully considering the third part of the test for an injunction (balance of convenience), the court relied on an alleged rule that an interlocutory injunction cannot be granted in elections cases where there was a constitutional challenge to electoral legislation. The decision has already been appealed to the Divisional Court because the applicants argue that no such rule exists. If the stay of the new amendment is not ultimately granted and quickly, as many as four million Canadians -- including numerous students, Aboriginals, elderly living in care facilities, and homeless individuals -- may be unable to vote in the federal election due to an inability to prove both residence and identity.
Although 400,000 voters used the Voter Information Card (VIC) above, as a form of identification in the 2011 Federal Election. Harper’s Conservatives passed the Fair Election Act (and a provision in June 2014 which removed the right of the Chief Electoral Officer to accept a VIC as proof of identity and addresswhich prohibited this Card to be used as a form of I.D. in the upcoming October 19, 2015 Federal Election. In his 25-page decision, Superior Court Justice David Stinson refused to grant an injunction against the provision that strips the use of voter information cards as a form of identification. Citizen groups fearing that this prohibition would prevent as many as four (4) million Canadians (Aboriginals, students, elderly living in seniors residences, and the homeless) could be prevented from voting due to an inability to establish their identity and residence, went to the Superior Court to apply for an injunction. Justice Stinson heard the injunction. In his 25-page decision, Superior Court Justice David Stinson refused to grant an injunction against the provision that strips the use of voter information cards as a form of identification. His ruling quoted a rule, which states that an interlocutory injunction can’t be granted, where there was a Charter challenge to the electoral legislation.  An appeal has already been launched to the Divisional Court, citing a mistake in law, given that the rule that Stinson relied upon doesn’t exist.

 

 

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