Gillian Frank, et al. v. Attorney General of Canada

(Ontario) (Civil) (By Leave)


Charter of rights - Constitutional law - Right to vote - Residency requirement - Legislative provisions disqualifying persons resident outside Canada for five years or more from voting in federal elections - Whether ss. 11(d), 222(1)(b) and (c), 223(1)(f), and the word “temporarily” in ss. 220, 222(1) and 223(1)(e) of the Canada Elections Act violate s. 3 of Charter - If so, whether infringement is reasonable limit prescribed by law as can be demonstrably justified in free and democratic society under s. 1 of Charter - Canadian Charter of Rights and Freedoms, ss. 1, 3 - Canada Elections Act, S.C. 2000, c. 9, ss. 11(d), 127, 220, 222, 223, 226.


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The appellants are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both appellants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more, pursuant to certain provisions of the Canada Elections Act. The appellants sought a declaration that those provisions of the Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional for violating the appellants’ right to vote under s. 3 of the Charter, and the violation was not justified under s. 1.

A majority of the Court of Appeal allowed the Attorney General’s appeal, finding that the denial of the vote to non-resident citizens who have been outside Canada for five years or more is saved by s. 1. The limitation is rationally connected to the government’s pressing and substantial objective of preserving Canada’s “social contract” (whereby resident citizens submit to laws passed by elected representatives because they had a voice in making such laws); it minimally impairs the voting rights of non-resident citizens by ensuring they may still vote if they resume residence in Canada; and the limitation’s deleterious effects do not outweigh the law’s benefits. In dissent, Laskin J.A. would have dismissed the appeal, finding that the “social contract” was not an appropriate nor a pressing and substantial legislative objective, and should not have been considered by the court. Justice Laskin also found that the denial of the right to vote was not rationally connected to the stated objective and did not minimally impair the rights of non-resident citizens, and that its harmful effects outweighed the stated benefits of the limitation.

Lower Court Rulings

May 2, 2014
Ontario Superior Court of Justice

CV-12-453976, 2014 ONSC 907
Application by Mr. Frank and Mr. Duong seeking declaration of constitutional invalidity for provisions of Canada Elections Act — allowed.
June 23, 2014
Court of Appeal for Ontario

2014 ONCA 485
Motion by Attorney General of Canada for stay pending appeal of decision — dismissed
July 20, 2015
Court of Appeal for Ontario

C58876, 2015 ONCA 536
Appeal by Attorney General of Canada — allowed