Whose Social Contract? Voting Rights for Non-Residents at Issue in Frank v Canada

With the upcoming federal election scheduled for October 19, 2015, the case of Frank v Canada, 2015 ONCA 536 is particularly timely. Unfortunately, the case will not be resolved in time to allow the respondents in the case and other non-resident Canadians who have lived outside of Canada for more than five years the right to vote in this election.

Facts

Section 3 of the Charter guarantees every Canadian citizen the right to vote in a federal or provincial election. Yet parliament has also enacted part 11 of the Canada Elections Act, SC 2000, c. 9, which denies the right to vote to Canadian citizens who have lived outside of Canada for more than five years.

The relevant provision of the Act, section 11(d), states that:

11. Any of the following persons may vote in accordance with Part 11:
…
(d) a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident.

The respondents challenging the legislation, Gillian Frank and Jamie Duong, had been away from Canada for more than five years, yet both intended to return to Canada if they could find employment. Both respondents had strong ties to Canada and had applied for work in Canada. However, they did not qualify to vote, as neither individual fell under the enumerated exceptions to s. 11(d), which include:

• Members of the Canadian Forces;
• Employees in either the federal or provincial public service, who have been posted outside Canada;
• Employees of an international organization to which Canada belongs, who have been posted outside Canada;
• Any person who lives with a Canadian citizen in any one of these exempted groups

At the time of the appeal, Gillian Frank was completing post-doctoral studies in the United States, and had received a scholarship for seven years to attend Brown University. Dr. Frank had applied for Canadian employment extensively, intended to return to Canada, and identified more strongly as a Canadian (para 179).

Similarly, Jamie Duong had remained in the United States after completing education there, yet had a desire to return to Canada if he could find suitable employment.

Judicial History

The respondents were successful at the application level. The application judge struck down the legislation, finding it to be in violation of section 3 of the Charter and not saved by section 1. The application judge had noted that despite the history of residence as a requirement to vote, there was no language to this effect in the Charter. Thus, the framers of the Charter did not intend to exclude non-resident citizens.

The Attorney General argued that extending the vote to non-resident Canadians would be unfair to the rest of the electorate. The application judge gave four reasons for rejecting the Attorney General’s submissions. Specifically, the applications judge criticized the submissions because:

(a) it was “precisely the sort of ‘countervailing collective concern’ which cannot be used to limit the ambit of a clearly articulated constitutional right”;

(b) non-residents live with the consequences of the law because they frequently visit, have family [in Canada] and the laws may affect them in the future;

(c) non-residents may be subject to Canadian laws, even though the laws may not be capable of extra-territorial enforcement against them; and

(d) “the logic of the [appellant’s] argument would dictate that all non-resident Canadians should be prohibited from voting, without exception. Non-resident voters are equally ‘not subject to Canada’s laws’ and could equally affect election outcomes in close ridings whether they have been non-resident for four or six years.”

The Attorney General also argued before the application judge that the law was necessary to maintain the integrity of the electoral system. This argument was later watered down on appeal, when the Attorney General instead focused on a “social contract” argument.

Majority

Chief Justice Strathy, writing for the majority at the Court of Appeal, found the legislation to be in violation of section 3 of the Charter; however, he also found that the breach was justified by section 1 of the Charter. In reaching this decision, the majority invoked the notion of a social contract, reasoning that “the electorate submits to the laws because it has had a voice in making them.” As such, Chief Justice Strathy determined that allowing all non-resident citizens to vote would permit them to participate in making laws that they did not need to submit to. Chief Justice Strathy ruled that this would further erode the legitimacy of the law. As a result, it was determined that denying the right to vote to those who have lived outside of Canada for more than five years is a reasonable limit on the Charter right under section 1.

The majority determined that “the residency requirement fulfills the pressing and substantial objective of preserving the social contract at the heart of Canada’s system of constitutional democracy” and that the limitation on voting rights is rationally connected to what he determined was a diminished connection to Canada (para 51).

In reaching this decision, the Chief Justice Strathy focused on the fact that non-residents only temporarily lose their right to vote, as he argued that non-residents could choose to move back to Canada if they wished to vote again (para 55).

Dissent

In his dissent, Justice Laskin noted how despite section 3, voting rights have historically been denied to various groups since the advent of the Charter, such as persons with mental disabilities, prisoners and judges. As such, Justice Laskin was critical of the majority’s reasoning and gave three main reasons for opposing their decision in his dissent.

First, Justice Laskin noted how the Attorney General had raised a new argument on appeal: that the breach of the Charter could be justified by the “the pressing and substantial objective of preserving the social contract at the heart of Canada’s system of constitutional democracy.” Justice Laskin was critical of the Attorney General raising this social contract argument for the first time on appeal, noting that it was unfair to the respondents and to the application judge to raise an argument with no evidence on the record to support it. Justice Laskin observed that a new argument should only be raised on appeal if there is an evidentiary record to support it and it would not be unfair to the parties, citing Kaiman v Graham, 2009 ONCA 77 to this effect. Furthermore, the Attorney General did not attempt to explain “the nature or basis of this social contract” (para 193), used to justify restricting voting the voting rights of what was said to be one million Canadian citizens.

Second, Justice Laskin reasoned that Parliament did not have this “social contract” objective in mind when it enacted the five-year non-residency limitation in 1993. However, in making this argument, the Attorney General had “invented a new objective after the provisions in issue were enacted” (para 197). Indeed, the social contract had not been mentioned in parliamentary debates prior to passing the law.

Third, Justice Laskin argued that the objective of preserving the social contract itself is not pressing and substantial, and thus did not meet the proportionality requirements of the Oakes test. Under the proportionality analysis of the Oakes test, the government must show that the Charter breach is rationally connected to the government’s objective, the law will further that objective, the law is minimally impairing to those whose rights have been violated, and that the benefits of the impugned legislation outweigh its harmful effects (para 239).

Justice Laskin noted that the Attorney General did meet the onus of proving that the stated purpose of ‘preserving the social contract’ was a pressing and substantial objective of the Canada Elections Act.

Further, Justice Laskin took issue with the Attorney General invoking Sauvé v Canada (Chief Electoral Officer), [2002] 3 SCR 519 [Sauvé], in that it did not support the Attorney General’s position, but that of the respondents’. Justice Laskin argued that the Attorney General had taken the case out of context and purpose. That is, the purpose of Sauvé was to strike down legislation that denied voting rights to prisoners (para 169), thus it was not appropriately used by the Attorney General in the instant case.

Conclusion

Even if a social contract theory of law is accepted here, it is still the case that Canadians who live abroad are affected by the laws and policies made by Canadian governments, particularly in the economic sense. The respondents in this case argued that they would return to Canada if they could find employment in their respective fields in Canada, yet were not able to vote for the economic policies they wished to live under. Although true democracy cannot be attained by voting alone, efforts to create an expansive scope for democracy should be supported, especially since limitations to the Charter right do not exist within the language of the Charter right itself, save for section 1.

Social contract theory is often associated with that of Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Although it was not really specified which version of the social contract Canadians should ascribe to, the majority did argue “the electorate submits to the laws because it has had a voice in making them. This is the social contract that gives the laws their legitimacy” (para 5). Yet this argument has also been used to deny the vote to other groups, such as prisoners in some states of the United States. It has been argued that they have breached the social contract by violating the law and thus should not be entitled to help shape the law.

Returning to the instant case, the respondents have filed leave to appeal to the Supreme Court of Canada, so it will be interesting to see if leave is granted and the Court uses this opportunity to define the scope of section 3, hopefully before the next federal election.