Yesterday, a majority of the Ontario Court of Appeal ruled that s. 11(d) of the Canada Elections Act, which blocks individuals living outside of Canada for more than five years from voting in Federal elections, is constitutional. Though it infringes s. 3 of the Charter, it is saved under s. 1 insofar as it promotes the ”œsocial contract.” Leonid Sirota discusses the case here and here. I have only a couple of observations.
The majority ruling in Frank is strange. The thread running through it is the simple proposition that those who are required to obey the law must have a voice in creating and shaping it. Fair enough. But this does not support the reverse proposition, that those who are not required to obey the law must have no voice in creating it. Now, it may be the case that permitting Canadian citizens who have lived outside the country for more than five years to vote has some adverse impact on the relationship that citizens generally have to the law and to their elected representatives. There is, however, nothing in the majority opinion that supports or even makes that sort of claim. Where, then, is the problem to be solved – the pressing and substantial objective?
This point, in the end, arguably underpins all of Laskin J.A.’s reasons for dissenting. He observed that the Crown had never before argued that the infringement could be justified on the basis that it promoted the social contract. Had it done so, there might be some sort of evidentiary foundation for the claim – which, I should repeat, was never expressly articulated in the majority opinion – that allowing long-term non-residents to vote would subtly erode the social contract. But it didn’t, and there wasn’t. Laskin J.A.’s observation that the Crown’s argument offended the shifting purpose doctrine rests on the premise that Parliament did not enact the infringing law with a view to promoting the social contract – i.e., that it did not see a direct connection between allowing long-term non-residents to vote and the widespread perception that laws and democratic institutions were legitimate.
Finally, Laskin J.A. convincingly argues that the majority had effectively turned the Supreme Court of Canada’s decision in Sauvé on its head. Yes, the Court had suggested that there was a connection between the duty to obey the law and the right to vote. But nothing in the majority’s judgment suggested that, where one lacks the duty to obey, one may also lose the right. Quite simply, the Frank majority rests its entire ruling on a non sequitur.
If and when the Supreme Court of Canada hears this case, it may choose to take the opportunity to comment on a source of confusion that lurks in the background. It was argued before the Court of Appeal, drawing on Sauvé, that vague and symbolic objectives cannot be pressing and substantial enough to justify limitations on Charter rights – that infringing laws must target some “concrete harm.” But symbols sometimes have real, practical effects – not least on the norms that guide social and public life. How much does the Crown have to do in order to show that a symbolic de-coupling of the right to vote and the obligation to obey the law will have a practical impact on the way in which members of the public perceive the law and their elected representatives? The Frank majority does not argue that merely symbolic objectives are sufficient, but appears to have proceeded on the basis that of course there would be a discernible impact. That is in no way obvious.