CABA Seeking Leave to Intervene in the Supreme Court of Canada
Dear Members & Friends of CABA,
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 president@canambar.com.
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.
