On October 14, 2016, the Supreme Court of Canada granted CABA’s motion to intervene in Gillian Frank et al. v. Attorney General of Canada. The case involves a constitutional challenge by two Canadian citizens living in the United States of provisions in the Canada Elections Act that deny the right to vote to Canadian citizens who have resided outside of Canada for more than five years. As an intervening party in the appeal, CABA will have standing before the Court to advance its position that the challenged provisions violate the Canadian Charter of Rights and Freedoms by establishing a second-class of Canadian citizenship based on the incorrect assumption that long-term expatriates have, in the words of the lower court, “severed their connections to Canada in the pursuit of their livelihoods.” CABA’s written submission are due on December 9, 2016. The Supreme Court is expected to hear oral argument in the case in February of next year.
Come join the CABA Executive for breakfast at Morandi Restaurant, 211 Waverly Place, New York NY, at 8:30 A.M. on Thursday, October 13, 2016. The Executive will be happy to share their plans about CABA events for the coming months and hear your feedback about the organization. Hope to see you there!
CABA is excited to announce that, as part of its Policy & Advocacy Program, it recently filed a motion seeking leave to intervene before the Supreme Court of Canada in the case of Gillian Frank et al. v. Attorney General of Canada. (See Memo and Affidavit).
What is the case about?
The case was commenced by two Canadian citizens living in the United States, Gillian Frank and Jamie Duong, who are challenging the provisions of the Canada Elections Act that deny the right to vote to citizens who have resided outside of Canada for more than five years, unless they are a member of the Canadian Forces or the public service or employed by a qualifying international organization.
In May 2014, Judge Penny from the Ontario Superior Court found that the impugned provisions of the Canada Elections Act violated section 3 of the Canadian Charter of Rights and Freedoms, which provides that “every citizen of Canada” has the right to vote, and that the limitation on this core democratic right was not justified in a free and democratic society under section 1 of the Charter.
The Court of Appeal for Ontario reversed in July 2015. The majority, formed of Judges Strathy and Brown, found that permitting all non-resident citizens to vote would erode the social contract between citizen and state that grants the citizen a say in making the state’s laws in exchange for agreeing to them. According to the majority, long-term non-resident citizens have excused themselves from the social contract because they are generally no longer affected by the laws of Canada. Accordingly, the majority reasoned that non-resident Canadians may be deprived of their right to vote after five years in accordance with the Charter. Judge Laskin issued a strong dissent and argued that preserving the social contract is not a pressing and substantial objective that can justify the limitation on the right the vote.
What is CABA’s position?
If its motion is granted, CABA intends to argue before the Court that the challenged provisions create a second-class of Canadian citizenship based on the incorrect assumption that long-term expatriates have, in the words of the lower court, “severed their connections to Canada in the pursuit of their livelihoods.” As the lived experience of CABA’s members and the work that CABA does to help Canadians abroad stay connected to their home country demonstrate, many long-term expatriate Canadians maintain close ties to Canada, its laws and politics, and discover ways to live out their Canadian citizenship from abroad.
More specifically, CABA intends to challenge three incorrect assumptions made by the majority of the Court of Appeal for Ontario in maintaining the disenfranchisement of long-term non-resident Canadians. First, the definition of the social contract that the majority relied upon is based on an outdated view of citizenship that ignores the more globalized citizenship of today. Second, Canadians residing abroad have not opted out of the social contract because many Canadian laws apply with extra-territorial effects. Third, the majority’s reliance on the social contract obscures essential aspects of the right to vote, such as the sense of belonging and association that is vital to individuals, as well as the collective democratic interest of incorporating the diverse viewpoints, ideas and lived experiences of the wider electorate, including the unique viewpoints and outlooks on the world developed by Canadians while living abroad.
CABA is represented in these proceedings by Bradley E. Berg, Max Shapiro, and Peter W. Hogg of Blake Cassels & Graydon LLP.
How can I participate?
If you are interested in getting involved with CABA or learning more about our Policy & Advocacy Program, aimed specifically at involving CABA and the perspective of its members and stakeholders in judicial and legislative decision-making with cross-border aspects, write to us at firstname.lastname@example.org.
CABA would finally like to take this opportunity to thank the members who agreed to be listed in its submissions in order to illustrate the breadth of its membership and its members’ involvement in cross-border issues.
Who else is involved?
The Attorney General of Quebec and the Attorney General of Nova Scotia have both filed notices of intervention in support of the Attorney General of Canada’s position.
The other proposed interveners in the case are Democracy Watch, the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, the South Asian Legal Clinic of Ontario, the Canadian Expat Association, the Metro Toronto Chinese and Southeast Asian Legal Clinic, an individual, and a group comprised of the Canadian Chamber of Commerce in Japan and two individuals.
On October 17, 2016, Ambassador of Canada to the U.S. David MacNaughton, in his first visit to Los Angeles, will share his views and perspectives on the future outlook in a joint program with Town Hall Los Angeles and the Los Angeles World Affairs Council. Register today – seating is limited.
CABA is pleased to announce that on July 15, 2016, its membership elected a new executive comprised of President, Vice-President and Secretary-Treasurer.
President: Ivo Entchev
Ivo Entchev is an attorney at Holwell Shuster & Goldberg LLP with a broad civil litigation and arbitration practice encompassing complex commercial disputes, international arbitration and intellectual property litigation. Ivo is licensed to practice law in New York and Ontario, and is trained in the common and civil law traditions. After graduating from the McGill Faculty of Law, he clerked for the Honorable Justice Marshall Rothstein of the Supreme Court of Canada.
Vice-President: Julia Starck Trudeau
Julia Starck Trudeau is an attorney admitted to practice in both New York and Quebec. Julia completed her articles at Fasken Martineau in Montreal and has worked as a litigator in a boutique litigation firm in New York City. Julia obtained her civil and common law degrees from McGill University in Montreal. During law school, Julia clerked for the Honorable Jean-Francois Buffoni at the Quebec Superior Court.
Secretary-Treasurer: Mark Semotiuk
Mark Semotiuk is an attorney at Simpson Thacher LLP whose practice focuses on private equity real estate transactions. Mark is licensed to practice law in New York and California. He obtained his J.D. at Fordham University School of Law and his LL.M. at Université Paris 2 Panthéon-Assas. Prior to attending law school, Mark earned a Masters in Real Estate Development from the University of Southern California. Mark is originally from Edmonton, Alberta.
Director of Policy & Advocacy: Valerie Scott
The new executive appointed Valerie Scott to serve as CABA’s first Director of Policy & Advocacy. Valerie is an associate at Sullivan & Cromwell LLP. Valerie’s practice focuses on commercial litigation. Valerie is licensed to practice law in New York and Quebec. She obtained a civil law degree from the University du Québec à Montréal and an LL.M. from New York University School of Law. Following law school, she clerked for the Honorable Marie Deschamps of the Supreme Court of Canada.
On April 20, 2016, CABA held a cross-border Continuing Legal Education (CLE) seminar in New York City as part of its ongoing initiative to deliver varied educational programming to its members. Former Southern District Court Justice Richard J. Holwell and Dan Sullivan of Holwell Shuster & Goldberg joined Jeff Galway and Kiran Patel of Blake, Cassels & Graydon for a panel discussion entitled “Lifting the Corporate Veil in the Recognition & Enforcement of Foreign Judgments: Approaches in the United States and Canada.” The event was moderated by Ivo Entchev of Holwell Shuster & Goldberg and included a welcome by outgoing CABA President Sarah Robertson. The program concluded with a lively discussion, followed by a cocktail. The evening was presented by Dorsey & Whitney.
Trevor Morrison, who is currently the Dean and Eric M. and Laurie B. Roth Professor of Law at New York University School of Law, will attend the upcoming CABA New York networking event on Thursday November 12th from 6-8, along with members of the Canadian Consulate.
Mr. Morrison was previously the Liviu Librescu Professor of Law at Columbia Law School, where he was also faculty co-director of the Center for Constitutional Governance and faculty co-chair of the Hertog Program on L
aw and National Security. He spent 2009 in the White House, where he served as associate counsel to President Barack Obama. Mr. Morrison received a B.A. (hons.) in history from the University of British Columbia in 1994, and a J.D. from Columbia Law School in 1998.
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