Frank v Canada (AG)

Frank v Canada (Attorney General) is a landmark decision by the Supreme Court of Canada, rendered in 2019, concerning the constitutionality of provisions in the Canada Elections Act that limited the voting rights of non-resident Canadian citizens. The case addressed the balance between a citizen's right to vote under Section 3 of the Canadian Charter of Rights and Freedoms and the government's ability to impose reasonable limits on that right under Section 1 of the Charter.

Background

Prior to 2018, Section 11(d) of the Canada Elections Act stipulated that Canadian citizens who had resided outside Canada for more than five consecutive years were ineligible to vote in federal elections. These citizens were still subject to Canadian law, including taxation, but lost their franchise. The plaintiffs, Richard Frank and Gillian Frank, Canadian citizens who had lived in the United States for many years, challenged this provision, arguing that it violated their Section 3 Charter right to vote.

The government's stated purpose for the five-year rule was to maintain a meaningful connection between electors and the domestic community and to ensure that voters have a direct and substantial stake in the laws made by the elected representatives.

Lower Court Decisions

Ontario Superior Court: In 2014, Justice Michael Penny found the five-year disenfranchisement rule unconstitutional, ruling that it violated Section 3 of the Charter and could not be saved under Section 1. He held that the right to vote is fundamental to citizenship and should not be conditional on residency.
Ontario Court of Appeal: The Court of Appeal upheld the Superior Court's decision in 2016. It agreed that the five-year rule was an unconstitutional infringement of the right to vote and that the government had not demonstrated it was a reasonable limit. The court emphasized the importance of the right to vote for all citizens, regardless of where they reside.

Issue Before the Supreme Court

The core issue before the Supreme Court of Canada was whether the five-year rule in the Canada Elections Act, which disenfranchised non-resident Canadian citizens living abroad for more than five years, violated Section 3 of the Charter and, if so, whether it constituted a reasonable limit under Section 1.

Supreme Court Decision

In a 5-2 majority decision, the Supreme Court of Canada reversed the lower court rulings and upheld the constitutionality of the five-year rule.

Majority Opinion (written by Justices Brown and Rowe): The majority held that while the five-year rule did indeed infringe Section 3 of the Charter, it constituted a reasonable limit demonstrably justified in a free and democratic society under Section 1.
- The majority found that the objective of the legislation – to preserve the social contract between electors and the Canadian political community by ensuring voters have a direct and ongoing stake in the laws that govern them – was pressing and substantial.
- Regarding proportionality, the court concluded that the means chosen were rationally connected to the objective, impaired the right as little as possible (given alternative measures like the 20-year rule proposed by the dissent were considered more arbitrary), and that the salutary effects outweighed the deleterious effects. The majority emphasized that the right to vote is not absolute and that the connection to the community is a legitimate consideration for electoral laws.
Dissenting Opinions: Justices Abella and Karakatsanis dissented, largely agreeing with the reasoning of the lower courts. They argued that the right to vote is fundamental to Canadian citizenship and should not be made conditional on residency or the duration of absence. They maintained that the five-year rule disproportionately infringed on Section 3 and could not be justified under Section 1, emphasizing the continuous connection many non-resident Canadians maintain with Canada through family, property, and economic ties.

Significance

The decision in Frank v Canada (AG) clarified the scope of the right to vote for non-resident citizens and affirmed Parliament's ability to impose limits on this right based on the concept of a "social contract" and a meaningful connection to the domestic community. It demonstrated that while Section 3 of the Charter is broad, the government can, under Section 1, justify restrictions on voting rights, particularly for those living outside the country for extended periods. This ruling solidified the principle that the right to vote, while fundamental, is not without boundaries, especially when balancing the interests of the political community as a whole.

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