COURT OF APPEAL FOR ONTARIO

CITATION: Frank v. Canada (Attorney General), 2015 ONCA 536

DATE: 20150720

DOCKET: C58876

Strathy C.J.O., Laskin and Brown JJ.A.

BETWEEN

Gillian Frank and Jamie Duong

Applicants (Respondents)

and

The Attorney General of Canada

Respondent (Appellant)

Peter M. Southey, Gail
    Sinclair and Peter Hajecek, for the appellant

Shaun OBrien and Amanda
    Darrach, for the respondents

Alessandra Nosko, for the intervener
    Chief Electoral Officer

Mark J. Freiman and Jameel
    Madhany, for the intervener Canadian Civil Liberties Association

Brendan van Niejenhuis and Justin Safayeni, for the
    intervener British Columbia Civil Liberties Association

Heard: January 6, 2015

On appeal from the judgment of Justice Michael A. Penny
    of the Superior Court of Justice, dated May 2, and amended May 15, 2014, with
    reasons reported at
2014 ONSC 907
.

Strathy C.J.O.:

A.

introduction

[1]

Section 3 of the
Canadian Charter of Rights and Freedoms
states
    that every Canadian citizen has the right to vote  a right the Supreme Court
    has described as lying at the heart of Canadian democracy.
[1]
This appeal asks whether that right can be taken away from Canadian citizens
    who have lived outside Canada for more than five years.

[2]

Gillian Frank and Jamie Duong, the respondents, are Canadian citizens. They
    have lived and worked in New York State for most of their adult lives, but plan
    to return if they can find suitable work. They were not able to vote in the
    last federal election because they had lived outside Canada for more than five
    years. They brought an application in the Superior Court of Justice to declare
    unconstitutional the provisions of the
Canada Elections Act
, S.C.
    2000, c. 9 (
CEA
) denying the vote to most citizens
[2]
who have resided outside Canada for more than five years.

[3]

The application judge held that Parliament cannot take away the voting
    rights of non-resident Canadian citizens  even long-term non-residents. He
    struck down the impugned provisions of the
CEA
, because in his view
    they violated s. 3 of the
Charter
, were not saved by s. 1, and were
    therefore of no force and effect.

[4]

I would allow the appeal of the Attorney General of Canada. My reasons
    can be summarized as follows.

[5]

Canadas political system is based on geographically defined electoral
    districts. The citizens living in each riding elect a Member of Parliament to
    represent them. Their representative serves the interests of the community, speaks
    for the community and participates in making laws that affect the daily
    activities of all residents of the community. 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.

[6]

Permitting all non-resident citizens to vote would allow them to
    participate in making laws that affect Canadian residents on a daily basis, but
    have little to no practical consequence for their own daily lives. This would
    erode the social contract and undermine the legitimacy of the laws. The
    legislation is aimed at strengthening Canadas system of government and is
    demonstrably justified in a free and democratic society. While the impugned
    legislation violates s. 3 of the
Charter
, it is saved by s. 1. Denying
    the right to vote to non-resident citizens whose absence exceeds five years is
    a reasonable limit on the
Charter
right.

[7]

I will begin by explaining the factual and legislative background
    underlying this appeal. I will then summarize the reasons of the application
    judge and the positions taken by the parties in this court. Finally, I will analyze
    the issues. The appellant acknowledges the impugned legislation breaches s. 3
    of the
Charter
, so the real battleground of the appeal is the s. 1 analysis.

B.

Background

(1)

The affected population

[8]

In 2009, some 2.8 million Canadians, or 8% of the countrys population,
    had lived abroad for more than a year. Of those, about 1.4 million citizens of
    voting age had been non-resident for more than five years. While some of those
    were public servants, military personnel or diplomats who had special voting
    rights, it is conceded that over one million Canadian citizens who have lived
    outside Canada for more than five years have no voting rights as a result of
    the impugned legislation.

[9]

The evidence establishes that a very small percentage of non-resident
    citizens affected by the impugned legislation take advantage of the right to
    vote. In the last federal election, in 2011, only 6,000 non-resident votes were
    recorded.
[3]

(2)

Brief history of residence as a voting requirement

[10]

Residence
    has historically played a prominent role in defining eligibility to vote in
    Canadian federal elections. At one time, actual physical presence in the
    electoral district on polling day was required in order to vote. This strict
    requirement was gradually relaxed for some members of the electorate. A desire
    to accommodate soldiers posted abroad was a driving force behind many of the
    reforms.

[11]

Beginning
    in the early 1900s, soldiers and war correspondents engaged in active duty were
    exempted from the residency requirement. In 1915, postal voting was
    implemented to allow soldiers to cast their ballots if they were absent on
    election day. In 1917, the residency exemption was widened by
The Military
    Voters Act
,
1917
,

S.C. 1917, c. 34,

to permit
    voting by all members of the military who were British subjects, regardless of
    their age, gender or length of absence.

[12]

Advance
    voting was introduced in 1920 for commercial travellers, railwaymen and
    sailors. It was extended to members of the Royal Canadian Mounted Police and the
    armed forces in 1934 and to military reservists in 1951. In 1945, proxy voting
    was introduced for Canadians held as prisoners of war.

[13]

Similar
    rights were gradually extended to public service employees and members of
    military families stationed abroad. In 1960, advance voting rights became
    available to all resident electors, if they swore they would be absent from the
    polling division on election day. The oath requirement for advance voting was
    removed in 1977.

[14]

In
    1970, diplomats and other public servants posted outside Canada and their
    dependants gained access to a form of remote voting through the special voting rules
    in the
CEA
. Civilian employees of the military, such as teachers and
    administrative support staff, became eligible in 1977. This enabled these non-resident
    groups to vote by mail using a special ballot.

[15]

The
    right of Canadian citizens to vote was enshrined in the
Charter
in
    1982. It was not until 1993, however, that legislative changes were made to
    facilitate voting by citizens who were temporarily residing outside of Canada,
    regardless of their reason for non-residence.

[16]

In
    1993, after deliberations by several parliamentary committees, a Royal
    Commission on Electoral Reform and Party Financing and the recommendations of a
    House of Commons Special Committee on Electoral Reform, Parliament introduced
    sweeping changes to the
CEA.
Part of this reform included extending
    the special voting rules to temporary non-residents, who had been living
    outside Canada for less than five years and who intended to return to Canada.
    This regime is described in greater detail in the next section.

(3)

The current legislative scheme

[17]

Part
    1 of the
CEA
, entitled Electoral Rights, provides the basic rules
    for voting in Canada. Canadian citizens 18 years of age or older are qualified
    electors (s. 3). They are entitled to vote for a Member of Parliament for the
    electoral district in which they ordinarily reside (s. 6).

[18]

Section
    127 recognizes three methods of voting in federal elections:

(a) in person at a polling station on polling day;

(b) in person at an advance polling station during the period
    provided for the advance poll; or

(c)
by means of a special ballot issued in accordance with
    Part 11.
[Emphasis added.]

[19]

This
    appeal concerns the third method  the special ballot voting procedure referred
    to in s. 127(c). This allows eligible citizens to submit their special ballot
    outside the polling district in which it will be counted. Eligibility for this
    method of voting is defined in s. 11 of the
CEA
:

Any of the following persons may vote in accordance with Part
    11:

(a) a Canadian Forces elector;

(b) an elector who is an employee in the federal public
    administration or the public service of a province and who is posted outside
    Canada;

(c) a Canadian citizen who is employed by an international
    organization of which Canada is a member and to which Canada contributes and
    who is posted outside Canada;

(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;

(e) an incarcerated elector within the meaning of that Part;
    and

(f) any other elector in Canada who wishes to vote in
    accordance with that Part. [Emphasis added.]

[20]

Section
    11(d) establishes the temporal limit on non-resident voting rights that is the
    focal point in this appeal. Citizens who have been living outside Canada for
    five years or more are not eligible to vote, unless they fall within one of the
    other exceptions.
[4]

[21]

Non-resident
    citizens who are eligible to vote under s. 11 must apply and meet the
    additional criteria prescribed in Part 11 of the
CEA
. Division 3 of
    Part 11, spanning ss. 220-230, deals specifically with the electors
    temporarily resident outside Canada referred to in s. 11(d). These provisions
    require the Chief Electoral Officer (CEO) to maintain a register of electors
    who may access the special ballot procedure. In order to qualify for inclusion
    on the register, non-resident Canadians must file an application and meet the
    three criteria set out in s. 222(1). The citizen must be a person who:

(a) at any time before making the application, resided in
    Canada;

(b) has been residing outside Canada for less than five
    consecutive years immediately before making the application; and

(c) intends to return to Canada to resume residence in the
    future.

[22]

Section
    222(2) creates an exception to the five-year limit for various non-resident
    citizens who are entitled to vote provided they previously resided in Canada
    and intend to return to resume residence in the future. This exception applies
    to any individual who is:

(a) employed outside Canada in the federal public
    administration or the public service of a province;

(b) employed outside Canada by an international organization of
    which Canada is a member and to which Canada contributes;

(c) a person who lives with an elector referred to in paragraph
    (a) or (b); or

(d) a person who lives with a member of the Canadian Forces or
    with a person referred to in paragraph 191(d) [which describes: a person who
    is employed outside Canada by the Canadian Forces as a teacher in, or as a
    member of the administrative support staff for, a Canadian Forces school.]

[23]

To
    summarize, in order to vote, a non-resident citizen who does not fit within the
    exceptions in s. 222(2) must: (a) have previously resided in Canada; (b) have resided
    outside Canada for less than five years; and (c) have indicated an intention to
    resume residence in Canada in the future.

[24]

The
    non-resident citizen is entitled to select a place of residence for the purpose
    of counting his or her vote. That place can be any one of: the persons last
    place of ordinary residence in Canada; the place of ordinary residence of his
    or her spouse, common law partner, other relative, or relative of the spouse or
    common law partner; the place of ordinary residence of a person in respect of
    whom the elector is a dependant; or the place of ordinary residence of a person
    with whom the elector would live, but for his or her residing temporarily
    outside Canada (s. 223(1)(e)).

[25]

Sections
    227-229 describe the method of remote voting. The CEO mails a special ballot to
    the non-residents foreign address. The non-resident must return the ballot by
    mail or other designated means and it will be counted as long as it arrives by
    6:00 p.m., local time, on polling day.

[26]

A
    non-residents name is deleted from the register once he or she has resided
    outside Canada for five consecutive years or more: s. 226(f).

(4)

The respondents

[27]

The
    respondents are Canadian citizens who live and work in New York State. They attended
    university in the U.S. and remained there to pursue careers in their chosen
    professions.

[28]

Gillian
    Frank was born in Toronto. He attended high school and completed undergraduate
    studies in Canada and served in the Canadian Forces. At the time of this
Charter
application, he was 34 years old, had been living in the U.S. for 13 years
    and was completing post-doctoral studies. He has family in Toronto and he
    travels to Canada approximately four times each year. He has not sought
    immigration status in the United States, other than on a temporary basis, and
    is not entitled to vote in American elections. He has paid U.S. taxes since
    2001.

[29]

Jamie
    Duong was born in Montreal and lived in Canada until grade 10 before attending school
    in Vermont. After high school, he attended Cornell University, where he now
    works. He has spent most of his adult life in the U.S. and has been resident
    there since 2006. He is a U.S. citizen, pays U.S. taxes and votes in U.S.
    elections. He does not file a Canadian tax return. He has family in Montreal
    and he returns to Canada several times each year during the summer and
    holidays.

[30]

The
    respondents have expressed interest in returning to Canada if they can secure
    employment in their fields. In the meantime, they wish to vote in Canadian
    elections. They brought this constitutional challenge after discovering they were
    disqualified from voting in the 2011 federal election, based on the five-year
    limit in s. 222(1)(b).

C.

THE DECISION OF THE application JUDGE

[31]

After
    noting the respondents strong ties to Canada and their absence because of
    employment, the application judge observed that many Canadians living abroad
    have strong connections to Canada and care deeply about the country. He
    described the connections as both socio-cultural and economic. He then
    summarized the legislative scheme and the history of non-resident voting in
    Canada.

(1)

Breach of s. 3

[32]

The
    application judge found the legislative restrictions on the voting rights of
    non-residents breached s. 3 of the
Charter
. He held that s. 3 clearly
    contains no limits on the right to vote other than citizenship and [a]ny
    limitation on the scope of the right  constitutes a breach of s. 3 which must
    then be justified under s. 1. He referred to
Sauvé v. Canada (Chief
    Electoral Officer)
, 2002 SCC 68, [2002] 3 S.C.R. 519 (
Sauvé #2
),
    where McLachlin C.J. stated at para. 11:

I conclude that s. 3 must be construed as it reads, and its
    ambit should not be limited by countervailing collective concerns, as the
    government appears to argue. These concerns are for the government to raise
    under s. 1 in justifying the limits it has imposed on the right.

[33]

He
    observed that in spite of the long history of residence as an element of the
    Canadian electoral process, the
Charter
makes citizenship the only
    requirement to vote. The framers of the
Charter
could easily have
    included residence if it was meant to be an additional requirement, but did
    not. The
CEA
does not identify residence as a qualification to vote
    and instead uses residence as a mechanism for regulating the voting process,
    akin to the means of regulating a modality of the universal franchise
    referred to by McLachlin C.J. at para. 37 of
Sauvé #2
. He rejected the
    Attorney Generals submission that the right could have internal limitations on
    the basis of fairness to resident citizens.

[34]

The
    application judge rejected the appellants submission that allowing
    non-residents to vote is unfair to resident Canadians because resident Canadians
    live here and are, on a day-to-day basis, subject to Canadas laws and live with
    the consequences of Parliaments decisions (paras. 86-90).

[35]

He
    gave four reasons for rejecting this argument:

(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 here 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 [appellants]
    argument would dictate that all non-resident Canadians should be prohibited
    from voting, without exception. Non-resident voters are equally not subject to
    Canadas laws and could equally affect election outcomes in close ridings
    whether they have been non-resident for four or six years.

[36]

He
    concluded that the
Charter
guarantee of the right to vote creates a
    protective umbrella to limit the power of the government to take away the right
    to vote.

[37]

The
    application judge distinguished residency requirements for provincial and
    territorial elections, finding that non-residents of a province would not have
    a sufficient attachment, whereas citizenship establishes the necessary connection
    to Canada. He concluded that the impugned provisions designate non-residents as
    unworthy of the franchise in a manner that violates s. 3.

(2)

Justification under section 1

[38]

After
    finding the impugned provisions infringe s. 3, the application judge proceeded with
    an
Oakes
analysis to determine whether the infringement is justified
    under s. 1:
R. v. Oakes
, [1986] 1 S.C.R. 103.

(a)
Pressing and substantial objective

[39]

He
    identified the two pressing and substantial objectives put forward by the Attorney
    General of Canada as fairness to resident voters and concerns over electoral
    fraud. At the outset, he observed that the rhetorical nature of the
    government objectives  render[ed] them suspect and broad, symbolic
    objectives were inherently problematic.

[40]

He
    was troubled that substantive fairness was almost always in the eye of the
    beholder. He noted the low turnout from non-resident voters in prior
    elections, which was entirely dwarfed by the non-resident Canadian Forces and
    incarcerated electors. He compared the fairness objective to an argument that
    resident citizens would consider it unfair for incarcerated electors to
    influence an election outcome, but held such stereotypes and vague
    generalizations have been rejected by Canadian courts.

[41]

The
    application judge found the second objective  concerns over electoral fraud
     to be speculative and without any evidentiary foundation. There were no
    documented problems associated with non-resident voting on which to base this
    objective.

[42]

Although
    not inclined to view the objectives as pressing and substantial, he
    nevertheless proceeded to the proportionality stage of the analysis to
    determine whether they were in fact capable of justifying the infringement.

(b)
Proportionality

(i)

Rational connection

[43]

At
    the rational connection stage, the application judge characterized the Attorney
    Generals argument as treating non-residents as unworthy because having been
    away for more than five years they had lost their connection to Canada. He
    considered that the government was attempting to protect the voting rights of
    residents from being de-valu[ed] by the unworthy non-residents. This, he
    said, was the same argument rejected in
Sauvé #2
and it was
    inconsistent with s. 3 and with the respect for personal dignity that lies at
    the heart of Canadian democracy.

[44]

He
    observed that the evidence showed that non-resident Canadians maintained
    connections to Canada in a number of ways. Although non-residents would lose
    their affinity to Canada over time, there was no rational connection between
    this general trend and the five-year limitation imposed by the legislation.
    More broadly, the Attorney General had not established a rational connection
    between any temporal limit on non-resident voting rights and the objectives of
    fairness and preventing electoral abuse.

(ii)

Minimal impairment

[45]

The
    application judge observed that the impugned provisions prevented informed and
    connected citizens like the respondents from voting, while enfranchising
    resident electors who may be uninformed and disinterested. As a result, it was
    overbroad. Even if the provisions advanced the government objectives, they were
    not minimally impairing because they created a blanket prohibition that failed
    to account for exceptionally informed and connected non-residents like the respondents.
    Further, the appellant had not established that a five-year cut-off was a reasonable
    basis to separate the informed and connected from the uninformed and
    unconnected.

[46]

The
    application judge dismissed international comparisons, noting that Canada, as a
    world leader in voter enfranchisement, had already taken a more liberal
    approach to the voting rights of people with mental disabilities and prisoners.

[47]

Moreover,
    he found less impairing means were available to achieve the government
    objective of ensuring a sufficient connection to Canada. Specifically, the act
    of voting itself is a self-testing mechanism to ensure non-residents are
    sufficiently interested in and connected to Canada, given the procedural steps
    and knowledge required by the process. Therefore, he concluded the means failed
    the minimal impairment test.

(iii)

Final balancing

[48]

The
    application judge found that it was at this final stage that the lack of
    substantive evidence of any actual problem resulting from non-resident voting
    comes home to roost. The vague assertions of unfairness and speculative
    concerns over electoral abuse could not outweigh the substantial interference
    with the rights of Canadian citizens to vote. The impact on Canadian elections
    would be, at most, slight. At the same time, the provisions deprived citizens
    who cared deeply about Canada and lived abroad for legitimate reasons from
    having a voice in Canadian political life. He concluded that the importance of
    this fundamental right could not be ousted by the alleged salutary benefits put
    forward by the Attorney General. Therefore, the impugned provisions could not
    be saved by s. 1.

(3)

Remedy

[49]

As
    a result, the application judge declared ss. 11(d), 222(1)(b) and (c),
    223(1)(f), 226(f) and the word temporarily in ss. 220, 222(1) and 223(1)(e)
    to be of no force or effect; and read into s. 11(d) the words an elector who
    resides outside Canada.

[50]

On
    June 23, 2014, Sharpe J.A. dismissed the appellants motion for a stay pending
    the outcome of this appeal:
Frank v. Canada (Attorney General)
, 2014
    ONCA 485.

D.

THE POSITIONS OF the PARTIES

(1)

Appellant

[51]

The
    appellants primary position, and the one I will focus on, is that the
    residency requirement fulfills the pressing and substantial objective of
    preserving the social contract at the heart of Canadas system of
    constitutional democracy. It ensures citizens are both subjectively connected
    to Canada through their knowledge and affiliation and objectively connected
    through holding citizenship responsibilities and duties to obey domestic laws. The
    connection between having a voice in making the laws and being obliged to obey them
    is what gives the laws legitimacy.

[52]

Limiting
    the voting rights of non-residents is rationally connected to the diminished
    connection non-residents have to Canada, both subjectively and objectively.
    Absence from Canada attenuates a citizens participation in the social
    contract, as few Canadian laws apply extra-territorially.

[53]

Parliament
    has extended the right to vote by mail to non-residents who intend to return to
    Canada after a temporary absence of up to five years to resume their
    obligations as citizens. It has also created exceptions for other individuals
    who are reasonably presumed to be returning to Canada. These exceptions do not
    undermine the rational connection, but instead demonstrate the means chosen are
    minimally impairing. Many non-residents who fall within the exceptions
    demonstrate their participation in Canadas social contract through committed
    public service. International comparators verify that five years is a
    reasonable temporal limit on non-resident voting rights.

[54]

Moreover,
    the impugned measures do not permanently strip non-residents of the right to
    vote. They only limit the right as long as those non-residents
choose
to
    live outside Canada. Residence, like age, is a way of regulating the modality
    of voting and does not speak to worthiness. The five-year rule is therefore
    entitled to deference. Five years corresponds to the maximum life of Parliament
    and is a reasonable and minimally impairing temporal line for regulating the
    right to vote.

[55]

The
    deleterious impact is mitigated by the likelihood that non-residents can
    participate in the foreign polity. Further, the limitation is not permanent and
    non-resident citizens may choose to return to Canada and regain the right to
    vote.

(2)

Respondents

[56]

The
    respondents defend the reasons of the application judge. They say the right to
    vote is a fundamental right of citizenship, which is protected by the
Charter
and does not depend on residence. Residence is not a primary component of the
    electoral system. It is simply an organizational framework for the allocation
    of votes in that system. The impugned legislation strips away the voting rights
    of the respondents, committed and engaged citizens with strong connections to
    Canada.

[57]

The
    respondents submit the vague and symbolic objectives advanced by the government
    should be rejected. They argue that the government has failed to identify any
    demonstrated problem with non-resident voting that could justify the
    infringement. Moreover, the purported objective is undermined by its
    unprincipled exceptions for other groups of non-residents.

[58]

At
    the proportionality stage, they submit five years is an arbitrary limit with no
    rational connection to the objective advanced by the appellant. They re-assert
    the application judges conclusion that the measures are overbroad by capturing
    non-residents such as the claimants who maintain a strong connection to Canada.
    Moreover, the measures are overly drastic, as the completion of the procedural
    requirements for non-resident voting in itself evidences a sufficient
    connection.

[59]

In
    the final balancing, the impact on the voting rights of non-residents outweighs
    the symbolic benefits advanced by the appellant. The measures leave
    non-resident citizens with no voice in the direction of the country. In turn,
    this has a serious deleterious impact on their dignity and belonging.

(3)

BCCLA

[60]

The
    British Columbia Civil Liberties Association (BCCLA) was granted leave to
    intervene in this appeal as a friend of the court and limits its submissions to
    the issues of pressing and substantial objective and rational connection. It
    argues for a stringent justification standard requiring the government
    objective to be directed at a concrete harm and supported by cogent evidence. Abstract
    and rhetorical objectives cannot be used to insulate
Charter
breaches
    from judicial scrutiny and evidence, not common sense or logical reasoning,
    must establish a rational connection between the impugned legislation and its
    objective. It says the appellant failed to demonstrate that the impugned
    legislation is directed at any specific harm.

[61]

The
    primary objective of fairness to resident voters is framed in vague and
    abstract terms. Resident voters are not a vulnerable group in need of
    protection. There is nothing inherently unfair about non-residents voting and
    there is no evidence that resident voters share the appellants view of any
    unfairness in non-resident votes being counted. Further, the historical
    evidence suggests that non-resident voter participation will be limited.

[62]

At
    the rational connection stage, the BCCLA submits the application judges
    findings are entitled to deference. The application judge found non-residents
    maintain connections to Canada and it is easy for them to stay informed about
    Canadian politics.

[63]

Non-residents
    do not withdraw from the fictitious social contract any more than prisoners.
    Further, the appellants proposition that non-residents are not subject to
    Canadian laws is flawed. Parliament has complete jurisdiction to legislate
    extra-territorially. Parliament has exercised this authority conservatively to
    date, but this could change and the provisions prevent non-residents from
    having a voice in that change. Therefore, there is no rational basis on which
    to impose a temporal limit on the voting rights of non-resident voters.

(4)

CCLA

[64]

The
    Canadian Civil Liberties Association (CCLA) was also granted leave to
    intervene in this appeal and limits its submissions to the role of equality
    values in the final balancing of proportionality under
Oakes
.

[65]

The
    CCLA asserts that
Charter
rights must be read harmoniously with
    broader
Charter
values and the language of s. 3  extending the right
    to vote to
every
citizen  places equality at its core. It argues
    the legislation creates a distinction that undermines the dignity,
    self-autonomy and worth of non-resident Canadians based on an extraneous
    personal characteristic. Denying non-residents the right to vote does not
    protect a modality of the right to vote, it sends the message that
    non-residents do not deserve to vote. It creates a class of approximately 1.4
    million Canadian citizens who are treated differently based on non-resident
    status.

[66]

Citizenship
    and age are the only legitimate qualifications on the right to vote. The harm
    to the s. 3
Charter
rights of non-residents, combined with the harm to
    equality values, outweighs any salutary benefits put forward by the government.

(5)

Chief Electoral Officer

[67]

The
    CEO was also granted leave to intervene as a friend of the court, but makes no
    submissions on the merits of the appeal. Rather, he seeks to ensure the court
    is properly informed about voting procedures and the potential impact of the
    courts decision on the operations of Elections Canada.

[68]

The
    CEO has informed the court that the next federal election must take place by
    October 19, 2015. If the court were to allow the appeal, the CEO will be
    required to contact certain non-resident electors to determine their
    eligibility to vote in accordance with the decision of this court.

E.

ANALYSIS

(1)

Introduction

[69]

The
    meaning and significance of citizenship is central to this appeal. I will put
    the issues in context by explaining how one obtains Canadian citizenship and the
    rights and responsibilities attaching to citizenship.

(a)

Obtaining citizenship

[70]

A
    person can obtain Canadian citizenship through birth, descent or naturalization.
    The following are entitled to citizenship, under s. 3 of the
Citizenship
    Act
, R.S.C. 1985, c. C-29:

·

a person born in Canada;

·

a person born outside Canada who has at the time of birth at
    least one Canadian parent who was either born in Canada or naturalized in
    Canada;
[5]
or

·

a person who receives a grant of Canadian citizenship.

[71]

In
    order to obtain a grant of citizenship through naturalization under s. 5 of the
Citizenship Act
,
[6]
an applicant over 18 years of age must:

·

have permanent resident status in Canada;

·

have lived in Canada and complied with income tax requirements for
    at least four of the previous six years since becoming a permanent resident;

·

intend to continue to reside in Canada, work outside Canada in
    the military or public service, or reside outside Canada with a spouse,
    common-law partner or parent who is a Canadian citizen in the military or
    public service;

·

if under 65 years of age, have an adequate knowledge of one of
    the two official languages;

·

if under 65 years of age, demonstrate an adequate knowledge of
    the responsibilities and privileges of citizenship, such as voting in elections
    and obeying the law, and an understanding of Canadian history, values,
    institutions and symbols; and

·

not, among other things, be under a removal order, in prison, under
    a probation order, on parole, charged with or awaiting trial on an indictable
    offence, or convicted of an indictable offence in the previous three years.

[72]

It
    is significant to this appeal that applicants for Canadian citizenship through
    naturalization must establish an objective connection to Canada through a
    minimum period of residence and, if under 65 years of age, must demonstrate a
    subjective awareness of the rights and responsibilities of citizenship.

(b)

Citizenship rights and
    responsibilities

[73]

Once
    acquired, Canadian citizenship provides exclusive access to several fundamental
    political rights. Citizens have the right to vote and run for office, the right
    to receive a passport, and an unqualified right to enter and remain in Canada.
    The
Charter
entrenches the nexus between citizenship and rights by
    guaranteeing only to citizens the right to vote (s. 3), the mobility rights in s.
    6(1) and minority language education rights (s. 23).

[74]

Adding
    a layer to citizenship, residence and physical presence can have an important
    influence on the rights and obligations of Canadians. For instance, residence
    is a requirement for entitlement to full health coverage and social assistance
    in Ontario. Similarly, only resident citizens can be compelled to serve on a
    jury. Residents, whether citizens or not, pay the full array of taxes that
    support government programs. Most important, only residents are regularly
    required to obey domestic Canadian laws. With limited exceptions, the laws enacted
    by Parliament do not reach outside Canadian borders.

[75]

What
    this means, on a practical level, is that while resident citizens may enjoy
    greater privileges than non-resident citizens, they also bear greater
    responsibilities and burdens.

(2)

Breach of s. 3 of the
Charter

[76]

Although
    the breach of s. 3 of the
Charter
was conceded by the appellant, I
    will briefly address it to lay the foundation for the s. 1 analysis. Section 3
    provides:

Every citizen of Canada has the right to vote in an election
    of members of the House of Commons or of a legislative assembly and to be
    qualified for membership therein.

[77]

As
    I noted at the beginning of these reasons, in
Sauvé #2
, McLachlin C.J.
    described the right of Canadian citizens to vote as lying at the heart of
    Canadian democracy. It is a right that must be interpreted liberally and can
    only be taken away for good reason.

[78]

In
Figueroa v. Canada (Attorney General)
, 2003 SCC 37, [2003] 1 S.C.R.
    912, Iacobucci J. speaking for the majority said, at para. 30, that the purpose
    of s. 3 is to promote and protect the right of each citizen to play a
    meaningful role in the political life of the country. Absent such a right, ours
    would not be a true democracy.

[79]

These
    principles find expression in s. 6 of the
CEA
, which provides that a Canadian
    citizen 18 years of age or older is entitled to have his or her name included
    in the list of electors for the polling division in which he or she is
    ordinarily resident and to vote at the polling station for that polling
    division.

[80]

Some
    Canadian courts have suggested that the right to vote nevertheless contains
    internal limits. For instance, the Yukon Court of Appeal concluded that
    residence requirements for the right to vote in a territorial election did not
    violate s. 3:
Re Yukon Election Residency Requirements
(1986), 1 Y.R.
    23 (C.A.). This view appears to have been superseded by the holding of
    McLachlin C.J. in
Sauvé #2
, at para. 11, that s. 3 must be construed
    as it reads, and its ambit should not be limited by countervailing collective
    concerns.

[81]

As
    a result, the breach of s. 3 is straightforward. The legislation prevents a
    particular group of Canadian citizens from voting in federal elections, thereby
    violating their s. 3 rights. Countervailing interests and any justifiable
    limitations are to be considered under s. 1: see
Sauvé #2
;
Figueroa
.

(3)

Section 1 of the
Charter

[82]

Section
    1 guarantees the rights and freedoms set out in the
Charter
, subject
    only to such reasonable limits prescribed by law as can be demonstrably
    justified in a free and democratic society.

[83]

Having
    found a breach of s. 3, the question is whether the limit on voting rights of
    non-resident citizens is reasonable and can be demonstrably justified in a free
    and democratic society.

[84]

The
    analysis requires that: (a) the objective of the legislation be pressing and
    substantial; and (b) the means used to further that objective are
    proportionate, namely, (i) rationally connected to the objective of the law,
    (ii) minimally impairing of the
Charter
right, and (iii) proportionate
    in effect. See:
Mounted Police Association of Ontario v. Canada (Attorney
    General)
, 2015 SCC 1,

at para. 139;
R. v. Oakes
;
Health
    Services and Support  Facilities Subsector Bargaining Assn. v. British
    Columbia
, 2007 SCC 27, [2007] 2 S.C.R. 391, at paras. 137-39.

[85]

The
    onus lies on the party seeking to justify the limitation of the
Charter
right
    to prove these requirements on a balance of probabilities:
RJR-MacDonald v.
    Canada
, [1995] 3 S.C.R. 199, at paras. 137-38.

(a)

Pressing and substantial
    objective

(i)

Introduction

[86]

The
    first step in the
Oakes
analysis asks whether the objective of the
    infringing measure is sufficiently important to be capable in principle of
    justifying a limitation on
Charter
rights and freedoms:
RJR-MacDonald
,

at paras. 142-44;
Mounted Police Association of Ontario
,

at
    para. 142. The objective must correspond to Parliaments intent at the time the
    law was enacted:
R. v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295, at
    p. 335. The objective must also be directly connected to justifying the aspect of
    the legislation that infringes the right:
Vriend v. Alberta
, [1998] 1
    S.C.R. 493, at paras. 113-116. It must be consistent with the values of a free
    and democratic society and should be directed at the realization of collective
    goals of fundamental importance:
Oakes
, at p. 136.

[87]

In
Oakes
, Chief Justice Dickson pointed out that the s. 1 justification standard
    requires the court to have regard to the purpose for which the
Charter
was
    entrenched in the Constitution  to ensure that Canadian society is free and
    democratic. He added, at p. 136:

The Court must be guided by the values and principles
    essential to a free and democratic society which I believe embody, to name but
    a few, respect for the inherent dignity of the human person, commitment to
    social justice and equality, accommodation of a wide variety of beliefs,
    respect for cultural and group identity,
and faith in social and political
    institutions which enhance the participation of individuals and groups in
    society
.
The underlying values and principles of a free and
    democratic society are the genesis of the rights and freedoms guaranteed by the
Charter
and the ultimate standard against which a limit on a right or
    freedom must be shown, despite its effect, to be reasonable and demonstrably
    justified. [Emphasis added.]

[88]

I
    will return to the words in italics in the next section.

(ii)

Objectives of the legislation

[89]

The
    objectives of the legislation can be determined through reasoning and common
    sense, by reference to the values and principles essential to a free and
    democratic society:
R. v. Bryan
, 2007 SCC 12, [2007] 1 S.C.R. 527, at
    para. 22.

[90]

The
    appellant says two main objectives of the law are pressing and substantial.
    First, it submits that the regime promotes the fairness of the electoral
    process by protecting the social contract lying at the heart of Canadas
    constitutional democracy. Second, it maintains the primacy of residence in
    Canadas system of parliamentary representation, rooted as it is in
    geographically determined, electoral district-based representation within
    Canada.

[91]

In
    oral argument, the appellant focused primarily on the social contract objective.
    The appellant described the social contract between citizens and the government
    as having both subjective and objective dimensions. Subjectively, the right to
    vote is premised on the electors knowledge and affiliation with their country
    and electoral district. Objectively, it is rooted in citizens obligations to
    obey the laws enacted by the Parliament they participate in electing.

[92]

In
    fairness to the application judge, it appears that the appellant did not
    expressly invoke the social contract in its submissions before him. Instead, it
    framed its submission as fairness to resident voters, who live with the
    consequences of the laws for which they vote.

[93]

For
    the reasons that follow, however, I am satisfied that preserving the connection
    between citizens obligation to obey the law and their right to elect the
    lawmakers  strengthening the social contract  is a pressing and substantial
    objective that justifies the s. 3
Charter
infringement. As a result, I
    will consider the other proposed objectives only insofar as they relate to the
    social contract objective.

[94]

At
    a general level, the social contract is about reciprocity between civic rights
    and responsibilities. In the context of this case, it is founded on a mutuality
    between the franchise and the citizens obligation to obey the law  between
    political rights and political obligations. This notion finds strong support in
    both political theory and Supreme Court jurisprudence.

[95]

In
Sauvé #2
, both the majority and the minority recognized the
    significance of the connection between the right to vote  having a say in the
    making of the law  and the obligation to obey the law. This social contract
    was endorsed by the majority at para. 31:

In a democracy such as ours, the power of lawmakers flows from
    the voting citizens, and lawmakers act as the citizens proxies. This
    delegation from voters to legislators gives the law its legitimacy or force.
    Correlatively, the obligation to obey the law flows from the fact that the law
    is made by and on behalf of the citizens. In sum, the legitimacy of the law and
    the obligation to obey the law flow directly from the right of every citizen to
    vote. As a practical matter, we require all within our countrys boundaries to
    obey its law, whether or not they vote. But this does not negate the vital
    symbolic, theoretical and practical connection between having a voice in making
    the law and being obliged to obey it. This connection, inherited from social
    contract theory and enshrined in the
Charter
, stands at the heart of
    our system of constitutional democracy.

[96]

The
    Chief Justice synthesized this, at para. 44, with the observation that laws
    command obedience because they are made by those whose conduct they govern.
    The connection between electing the lawmakers and being subject to the laws
    gives the laws their legitimacy.

[97]

The
    minority judgment in
Sauvé #2
disagreed with the majority about the
    nature and implications of prisoners participation in the social contract.
    Nevertheless, it too endorsed a similar concept of the social contract, at
    para. 115:

The social contract is the theoretical basis upon which the
    exercise of rights and participation in the democratic process rests. In my
    view, the social contract necessarily relies upon the acceptance of the rule of
    law and civic responsibility and on societys need to promote the same.

[98]

Indeed,
    the minority took the social contract a step farther, recognizing its potential
    to justify residency as a qualification for voting, at para. 118:

It is for this same reason, the importance of the nexus between
    voters and their community, that many jurisdictions qualify the right to vote
    with residency requirements. This Court, in
Haig v. Canada
, [1993] 2
    S.C.R. 995, upheld residency requirements as a reasonable qualification to the
    eligibility to vote in a referendum. While it is clear that there was no breach
    of s. 3 of the
Charter
in that case since s. 3 does not apply to
    referenda,
Haig, supra
, generally seems to imply that residency
    requirements may be capable of being reasonable qualifications upon the right
    to vote.
This reasonableness arises not only from practical concerns, but
    also from the nexus between a particular individuals eligibility to vote in an
    election, their relationship to the community, and the fact that it is that
    community which will be subjected to the results of the election.
[Emphasis
    added.]

[99]

Given
    the Supreme Courts recognition of the importance of the social contract, and
    the majoritys recognition that it stands at the heart of our system of
    constitutional democracy, I am satisfied that strengthening the social
    contract qualifies as a pressing and substantial objective. Returning to the
    words of Dickson C.J. in
Oakes
, it promotes faith in political
    institutions that enhance the participation of individuals and groups in our
    society.

(iii)

Parliaments intent

[100]

It remains necessary to ask whether
Parliaments intention was to protect the social contract when Bill C-114
    was passed in 1993.
The overall intention of the special ballot
    provisions was to
extend
the franchise to certain non-resident
    citizens who were previously unable to vote. It did so by providing a method of
    remote voting to qualified non-resident citizens. The question is whether
    Parliaments intention in not extending the franchise to all non-resident
    citizens was to protect the social contract.

[101]

Although not
    expressly stated in those terms, the underlying Hansard evidence reveals a
    concern that the vote should be limited to non-residents having a sufficient connection
    to Canada. For instance, during the Senate Standing Committee, Ms. Margaret
    Bloodworth remarked:

The feeling of the special committee, and it was a feeling that
    the government agreed with, was that it is not unreasonable for a democratic
    society to ensure that those voting in the election have some degree of
    connection with the country.

Is five years sure to succeed in a court challenge? I cannot
    give you that kind of guarantee. I can say there is a reason behind the five
    years, in the sense that it ensures that there is some degree of connection
    with the country. Five years is also the maximum period of a parliament, so it
    is not a number picked completely out of the air. It is a matter of judgment in
    the end.

I personally do not think it is unreasonable that people have
    some personal connection with the country. There have been some exceptions put
    in for people who have an obvious connection; public servants, either federal
    or provincial, who happen to be out more than five years and also Canadians who
    are working for international organizations that Canada is a part of because
    normally, Canada has a direct interest in making sure Canadians work for those
    organizations. We have tried to build in obvious exceptions where people do
    have a direct ongoing connection with the country, but it will not give the
    vote to people who have lived outside the country for 20 or 25 years. Those
    kinds of people will not be able to vote.

[102]

In the Special
    Committee on Electoral Reform, M.P. Jim Hawkes expressed a similar view:

People who have been non-resident in Canada for five years or
    less, or something of that kind, makes me more comfortable. Somebody whos not
    lived in this country for 40 years  Im not sure I want them voting, and Im
    not sure they have a close enough connection to satisfy me theyre still
    Canadian. They may have a passport that says they are, but if theyre out of
    the country on a two- or three-year contract doing something, then I think they
    are in a different position. Its the temporary absence from Canada that
    pleases me the most.

[103]

Admittedly, these
    concerns were primarily directed at the subjective connections of non-residents
    based on their knowledge and ties to Canada. However, the objective component
    is an equally important part of this connection and was implicit in the
    rationale underlying the law. The focus on this objective component in this
    appeal could be fairly described as a permissible shift in emphasis:
R.
    v. Butler
, [1992] 1 S.C.R. 452, at p. 496.

(iv)

The application judges characterization of the objective

[104]

The social
    contract objective of protecting a correspondence between the right to elect
    lawmakers and being required to obey the law is well supported by
    jurisprudence. The application judge acknowledged this argument, which he
    described as the argument that resident Canadians live here and are, on a
    day-to-day basis, subject to Canadas laws and live with the consequences of
    Parliaments decisions. He did not, however, in my respectful view, give
    sufficient consideration to the nature of Canadian parliamentary democracy, the
    social contract and the role played by residence in both. This caused him to
    reduce residence to an organizing concept and to overlook the legitimizing
    effect of the social contract.

[105]

Couched as it
    was in terms of unfairness to resident voters, it is understandable that the
    application judge discounted the argument. He focused on fairness to resident
    voters and the risks of electoral fraud. Instead, he might have recognized that
    non-residents are generally not subject to Canadian laws and do not share the
    same citizenship obligations.

[106]

The application
    judge felt that non-residents live with the consequences of the law because
    they visit Canada, have family here and may in the future be affected by the
    laws. He also said that non-residents may be subject to Canadas laws even
    though they may not be enforced against them. In my view, these connections are
    tenuous. As a practical matter, Canada does not purport to legislate
    extra-territorially in most cases. Nor does it attempt to enforce its laws
    outside the country. While the respondents will be subject to Canadian laws
    when they come to Canada, the same is true of any visitor. On a day-to-day
    basis, the respondents are subject to an array of U.S. municipal, state and
    federal laws that affect every aspect of their lives. Their tax dollars are
    directed to the support of U.S. policies, programs and institutions, not
    Canadian ones. They may well have an interest in Canadian politics, but their
    taxes go to Washington, not Ottawa.

[107]

The application
    judge suggested that the logic of the appellants argument would dictate that
    all non-residents should be prohibited from voting. This overlooks the
    subjective element of the legislation. A short-term non-resident who
    demonstrates an intent to return to Canada and to thereby voluntarily subject
    him/herself to the laws is entitled to vote.

(v)

Consistent with the goals of a free and democratic society

[108]

By strengthening
    public confidence in the laws enacted by Parliament, the legislation is consistent
    with the principles and values of a free and democratic society.

[109]

The respondents
    say that the impugned legislation is a regressive step in light of Canadas
    history of leadership in the extension of the franchise, beginning with the
    enfranchisement of women, and continuing with the reduction of the voting age
    from 21 to 18, and the removal of limitations on the voting rights of judges,
    prisoners and people with mental disabilities. They say the government has
    identified no problem addressed by the legislation.

[110]

Given the
    history of extension of the franchise in Canada, and the entrenchment of the
    right of citizens to vote in the
Charter
, any restriction of that
    right must be carefully scrutinized. Canada has evolved away from unjust limits
    on the right to vote based on wealth, gender, or race. It is, however,
    consistent with the values of a free and democratic society to require
    long-term residency as a pre-condition to enjoying the full political rights
    flowing from citizenship. As one professor of political science noted (Claudio López-Guerra,
    Should Expatriates Vote? (2005) 13:2 Journal of Political Philosophy 216, at p.
    220):

[W]hether self-determination is understood simply as the
    election of representatives or as a more radical notion of active and direct
    participation in the citizenry, the implications are the same for the purpose
    of defining who ought to have political rights in a democratic government
the
    governed
. [Emphasis added.]

(vi)

Conclusion on the pressing and substantial objective

[111]

The impugned
    provisions have a sufficiently significant objective to meet the pressing and
    substantial standard. I now turn to the proportionality analysis mandated by
Oakes
.

(b)

Proportionality

[112]

This second stage of the
Oakes
test, the proportionality
    analysis, involves three considerations: (i) whether there is a rational
    connection between the impugned legislation and a constitutionally valid
    objective; (ii) if so, whether the right is minimally impaired; and (iii) at
    the final balancing stage, whether the laws
salutary
    benefits outweigh its deleterious effects.

[113]

In my view, the
    proportionality analysis turns on whether Parliament was entitled to impose a
    maximum period of non-residency as a condition of entitlement to vote. Less
    important is the particular period of time it chose. Whether five years is an
    acceptable period of absence at which to draw the line falls to be considered
    at the minimal impairment stage and not the rational connection stage of the
    analysis.

(i)

Rational connection

[114]

In
Mounted
    Police Association
, the majority (per McLachlin C.J. and LeBel J.)
    observed at para. 143:

The government must demonstrate that the infringing measure is
    rationally connected to its objective. This test is "not particularly
    onerous" (
Little Sisters Book and Art Emporium v. Canada (Minister of
    Justice)
,
2000 SCC 69
,
[2000] 2 S.C.R. 1120
,
    at para. 228;
Health Services
, at para. 148). It is not necessary to
    establish that the measure will
inevitably
achieve the government's
    objective. A reasonable inference that the means adopted by the government will
    help bring about the objective suffices (
Canada (Attorney General) v.
    JTI-Macdonald Corp.
,
2007 SCC 30
,
[2007] 2 S.C.R. 610
,
    at para. 40;
Health Services
, at para. 149). The assessment is a
    matter of causal relationship.

[115]

The rational
    connection must be established by evidence or by reason and logic:
RJR-MacDonald
,
    at paras. 153-154. As I will explain below, I find that Canadian citizens who
    have been non-resident for five years or more are largely not governed by the
    Canadian legal system; therefore, excluding them from the franchise helps to
    strengthen the social contract and enhance the legitimacy of the laws.

[116]

The appellant
    supports the rational connection between the legislative objective and the
    legislation by four arguments:

·

the social contract theory discussed in
Sauvé #2
;

·

provincial and territorial electoral legislation;

·

the electoral laws of other Westminster democracies; and

·

international jurisprudence.

[117]

I will examine
    each of these.

Sauvé #2 and the social contract

[118]

As I have noted
    above, in
Sauvé #2
, the Chief Justice affirmed the vital symbolic,
    theoretical and practical connection between having a voice in making the law
    and being obliged to obey it.

[119]

The foundation
    of the governments objective is neither new nor revolutionary. In
Sauvé #2
the Supreme Court of Canada referred to the writings of John Stuart Mill as one
    of the sources of democratic theory. So too were the works of Jean-Jacques
    Rousseau. In The Social Contract, Rousseau observed:

The People, subject to the enactments of law, must be its
    authors, for it belongs only to those who have combined together to order the
    conditions of their society.
[7]

[120]

Contemporary scholars
    on the subject of citizenship, residence and the right to vote have expressed
    similar views. For example, Professor Patti Tamara Lenard, in an article
    entitled Residence and the Right to Vote (2015) 16:1 Journal of International
    Migration and Integration 119, makes the following observation at pp. 120 and
    125:

According to ideal accounts of democratic theory, democratic
    states are justified by their commitment to the equality of all those who are
    subject to their rule. This equality finds its central expression in citizens
    protected, equal access to its collective decision-making procedures.

[A]bsent a compelling explanationthose who are obligated to
    abide by state laws, and those whose daily lives are shaped by them, have the
    right to participate in selecting those who create them.

[121]

The rational
    connection between the objective and the legitimacy of the laws is eloquently
    captured in the words of former Chief Justice of the Ontario High Court of
    Justice James C. McRuer, found in the Foreword to J. Patrick Boyer,
Political
    Rights: The Legal Framework of Elections in Canada
, (Toronto:
    Butterworths, 1981):

Since primitive tribal times there has been a slow but
    persistent struggle to define and regulate the exercise of power necessary for
    the protection and welfare of those who in their own interest must live in some
    form of association.
The recognition that the source of the power exercised
    must rest in those affected by its exercise has been an idea of comparatively
    recent development in human history
. It is a democratic idea.

The growth of democratic ideas has been slow and spasmodic and
    even now after eons of history only in a comparatively small segment of the
    worlds population do they prevail in the control of the internal affairs of
    nations.

It is fundamental to the democratic idea that there be a
    social acknowledgement that not only must the source of the power to govern lie
    with those subject to the power, but they must have a right to define and limit
    its exercise.
[Emphasis added.]

See also López-Guerra, at 234: Participation in a
    democratic process should be restricted to those who will be subject to the
    rulings of that government.

[122]

In
Sauvé
,
    a majority of the Supreme Court found that denying penitentiary prisoners the
    right to vote was not rationally connected to the stated objectives of
    enhancing respect for the law and imposing legitimate punishment. The court
    held, at paras. 42-53, that the former was a variant on the unworthiness
    rationale and the latter was not achieved by removing the vote. Inmates remain
    subject to the law even if they choose not to obey it. Non-resident citizens,
    on the other hand, are generally no longer subject to Canadian law. They have
    opted out of the social contract in a way that inmates have not. It is the obligation
    to obey the law, not obedience to the law, which animates the social contract.

Provincial and territorial legislation

[123]

Residence is a
    determinant of voter eligibility in all provinces and territories, with most
    requiring a minimum period of residence. The Saskatchewan Court of Appeal, the
    Yukon Territory Court of Appeal and the Nunavut Court of Justice have found a
    rational connection between these residence requirements and the fairness and
    integrity of the electoral process:
Storey v. Zazelenchuk
(1984),
36 Sask.R. 103
(C.A.);
Anawak v. Nunavut (Chief Electoral
    Officer)
, 2008 NUCJ 26, 172 A.C.W.S. (3d) 391;
Re Yukon Election
    Residency Requirements
(1986), 1 Y.R. 23 (C.A.).

Westminster Democracies

[124]

Residence is a
    requirement of the electoral laws of the other Westminster democracies. The U.K.,
    Australia and New Zealand limit the voting rights of non-resident citizens to
    those temporarily resident abroad, albeit with different time limits  15 years
    in the U.K., six years in Australia and three years in New Zealand: see
Representation
    of the People Act 1985
, (U.K.) 1985, c. 50, s. 1, as amended by s. 141(a)
    of
Political Parties, Elections and Referendums Act 2000
, (U.K) 2000,
    c.41;
Commonwealth Electoral Act 1918
(Aus) No. 27, 1918, as amended,
    s. 94;
Electoral Act 1993
, (N.Z.) 1993 No. 87, s. 80. The New Zealand
    time limit is re-set if the non-resident returns to the country between
    absences.

International jurisprudence

[125]

The appellant
    also refers to international jurisprudence, including the decisions of the
    European Court of Human Rights in
Shindler v. the United Kingdom
, No.
    19840/09, 7 May 2013, at p. 27; and
Hilbe v. Liechtenstein
(dec.), No.
    31981/96, [1999] VI E.C.H.R. 453, at p. 459, both of which affirmed the
    importance of limiting the right to vote to those who would be most directly
    affected by the law.

[126]

In
Hilbe
,
    the court said at p. 459:

In the present case the court considers that the residence
    requirement which prompted the application is justified on account of the
    following factors: firstly, the assumption that a non-resident citizen is less
    directly or less continually concerned with his countrys day-to-day problems
    and has less knowledge of them; secondly, the fact that it is impracticable for
    the parliamentary candidates to present the different electoral issues to
    citizens abroad and that non-resident citizens have no influence on the
    selection of candidates or on the formulation of their electoral programmes;
thirdly,
    the close connection between the right to vote in parliamentary elections and
    the fact of being directly affected by the acts of the political bodies so
    elected; and, fourthly, the legitimate concern the legislature may have to
    limit the influence of citizens living abroad in elections on issues which,
    while admittedly fundamental, primarily affect persons living in the country
.
    [Emphasis added.]

[127]

In
Shindler
the court said, at para. 107, that it was satisfied that the legislation
    pursues the legitimate aim of confining the parliamentary franchise to those
    citizens with a close connection with the United Kingdom and who would
    therefore be most directly affected by its laws.

[128]

The respondents
    distinguish the provincial voting cases and the decisions of the European Court
    of Human Rights. These decisions are indeed distinguishable, but they
    nevertheless affirm the interest of the polity in limiting enfranchisement to its
    residents.

[129]

The authorities,
    provincial and international, provide strong support for the logical connection
    between limits on non-resident voting and the legitimacy and fairness of the
    electoral system.

Application to the case at hand

[130]

In my view, the
    focus of the application judges analysis was misdirected by the governments
    assertion that long-term non-residents do not have the same connection to
    Canada as residents. This caused the debate to be cast as whether non-resident
    citizens were worthy of the vote, comparing it to the treatment of criminals
    discussed in
Sauvé #2
. As a result, he overlooked Canadas democratic
    tradition and the importance of the social contract between Canadas electorate
    and Parliament. This, in turn, tainted the proportionality analysis. As the
    Supreme Court noted in
Toronto Sun Newspapers Ltd. v. Canada
, 2010 SCC
    21, [2010] 1 S.C.R. 721, at para. 20, [A]ll steps of the
Oakes
test
    are premised on a proper identification of the objective of the impugned
    measure. As I will explain, the mischaracterization of the objective of the
    measure skewed the rational connection analysis because the application judge
    treated the legislation as declaring long-term non-residents to be unworthy.

[131]

The appellants main
    argument is not that longer-term non-residents lack a sense of commitment to
    Canada. Rather, the legislative objective is to maintain the connection between
    the voters, the lawmakers and the laws. Non-residents are not directly
    governed by Canadian laws. Once a citizens non-residence becomes long-term rather
    than temporary, it is reasonable for the government to place limits on that citizens
    entitlement to vote. That limit is important, but not because the longer-term
    non-resident is unworthy due to a lack of engagement in Canadian affairs. It is
    because the longer-term non-resident has voluntarily withdrawn from the social
    contract and has submitted him/herself to another political and legal order.

[132]

Two of the
    interveners, the BCCLA and CCLA, argued that Parliament has jurisdiction to
    pass more extra-territorial laws than it does, and can potentially have a
    greater impact on non-residents. They argued that the reduced obligations of
    non-resident citizens are as much a choice of Parliament as the choice of
    non-residents.

[133]

While Parliament
    has the power to make laws having extra-territorial application, there is a
    presumption against extra-territorial application of the law.
[8]
Moreover, Canada exercises restraint by not purporting to legislate
    extra-territorially out of respect for the sovereignty of foreign states and
    because such laws would be largely unenforceable.

[134]

In
Morguard
    Investments Ltd. v. De Savoye
, [1990] 3 S.C.R. 1077, La Forest J. recognized
    this legislative restraint, at p. 1095:

[It is] one of the basic tenets of international law, that
    sovereign states have exclusive jurisdiction in their own territory.  As a
    concomitant to this, states are hesitant to exercise jurisdiction over matters
    that may take place in the territory of other states.  Jurisdiction being
    territorial, it follows that a state's law has no binding effect outside its
    jurisdiction.

[135]

Similarly, in
R.
    v. Hape
, LeBel J. noted the states limited authority over its foreign
    nationals, at para. 60:

Under international law, a state may regulate and adjudicate
    regarding actions committed by its nationals in other countries, provided
    enforcement of the rules takes place when those nationals are within the
    state's own borders.
When a state's nationals are physically located in the
    territory of another state, its authority over them is strictly limited.
[Emphasis added.]

[136]

He then
    observed, at para. 69:

Simply put, Canadian law, whether statutory or constitutional,
    cannot be enforced in another states territory without the other states
    consent.

[137]

A statement to a
    similar effect is found in John H. Currie,
Public International Law
,
    2nd ed. (Toronto: Irwin Law, 2008) at p. 335:

States being in essence territorially-defined entities, the
    starting point for their enforcement jurisdiction is naturally territorial. In
    other words, it is a starting presumption in international law that, within its
    borders, a state is sovereign and free to exercise plenary enforcement
    jurisdiction with respect to persons and property situated within those
    borders. The necessary corollary of this presumption, which is based on
    territorial sovereignty, is that
the enforcement
    jurisdiction of a state is in fact
limited
to its territory absent some special rule of international law
    or other basis permitting the exercise of such jurisdiction abroad
.
    Otherwise, a state exercising enforcement jurisdiction in the territory of
    another state would necessarily be violating the exclusive jurisdiction of that
    state over all enforcement measures within its territory. [Italics in
    original; underlined emphasis added.]

[138]

The truth is
    that most of Canadas laws have little practical impact on non-resident
    citizens. While there are unquestionably some Canadian laws that are expressly
    intended to apply extra-territorially, these are, equally unquestionably, the
    exceptions.
[9]

[139]

The same is true
    of the application judges suggestion that non-resident citizens are subject
    to Canadian laws. While the interests of non-resident citizens may be affected
    by certain Canadian laws, most Canadian laws have no impact on them unless and
    until they come into the country. They are not
governed
by Canadas
    legal regime in the same way as residents. López-Guerra makes this point at pp.
    232-33:

While expatriates could comply with taxation and conscription
    laws to some extent, they cannot be subject to the entire legal system in the
    same terms as those residing within the country.

Individuals are governed by the entire legal system only when
    they live under the jurisdiction of the state, and only then should they have
    the right to elect representatives entitled to discuss and vote on every issue.

[140]

In my view, the application
    judge understated the significance of residence in our electoral system.
    Residence is not merely a mechanism for regulating the voting process, as he
    stated at para. 85 of his reasons. Nor is it simply an organizing principle
    as the respondents contend. Residence of the elector, either in Canada, or
    temporarily resident outside Canada with an intention to return, provides the
    subjective and objective connection between the electorate and lawmakers.

[141]

There is,
    therefore, a rational connection between the maintenance of the social contract
    in a constituency-based system of representation and a limit on the rights of
    long-term non-resident Canadians to vote. The duration of a citizens current
    absence is a reasonable means by which to differentiate between temporary
    non-residents and longer-term non-residents who have voluntarily removed
    themselves from the social contract.

[142]

The respondents
    argument that [t]here is no rational connection between five years and the
    alleged social contract conflates the first two stages of the proportionality
    test. Whether five years is a reasonable duration of absence from Canada at
    which to draw the line is properly considered under the minimal impairment
    portion of the analysis.

[143]

I do not regard
    the exemption of military personnel, public servants posted abroad and
    employees of international organizations as inconsistent with this rational
    connection. Nor do I accept the suggestion that, as a matter of logic, these
    citizens should also be subject to a five-year limit. Unlike the respondents,
    these citizens have not voluntarily severed their connections with Canada in
    the pursuit of their own livelihoods  they have done so in the service of
    their country. This service to the country is its own unique form of connection
    to Canada, notwithstanding their physical absence. It is also significant that
    military personnel may be tried for criminal offences committed outside Canada
    by virtue of s. 67 of the
National Defence Act
, R.S.C. 1985, c. N-5, and
    similarly, an offence committed by federal public service employees posted
    abroad may be deemed to have been committed in Canada by virtue of s. 7(4) of
    the
Criminal Code
.

(ii)

Minimal impairment

[144]

I now consider
    whether the means used impair the protected right as minimally as reasonably
    possible. I do not find it necessary to consider the respondents argument that
    the impairment of the right is overly drastic. That argument was premised on
    the idea that the administrative inconvenience of voting abroad was barrier
    enough to prove that that those who voted from abroad had a strong connection
    to Canada. However, this appeal is not being decided on the basis of the degree
    of engagement with Canada, and therefore worthiness to vote, of non-resident
    citizens. The issue is not whether there is a less intrusive degree of
    impairment of an individuals right to vote. Citizens are either allowed to
    vote or not; there are no degrees of voting. Therefore, whether the means used
    minimally impair the right turns on whether five years is a reasonable cut-off.

[145]

The application
    judge held that the means used did not minimally impair voting rights of
    non-resident citizens, because the five-year limitation and the requirement
    that the voter intended to return to Canada were overly broad. He reasoned that
    the law excluded well-informed non-resident citizens like the applicants, but
    allowed resident electors, who might be uninformed and disinterested, to vote.

[146]

He asked whether
    the five-year limit was a reasonable means of separating the informed from the
    uninformed, and concluded that it was not. As in the rational connection
    analysis, he focused on whether the individual voter was worthy of being
    enfranchised, concluding that the
Sauvé
principles against unfair
    disenfranchisement applied.

[147]

I agree that
    whether someone has been away from Canada for more than five years does not
    have a direct correlation with his or her political knowledge; however, the
    five-year limit is not a filter for political knowledge. Rather, the duration
    of absence is a means by which to determine whether the citizen is temporarily
    away from Canada or not.

[148]

There was
    evidence before the application judge that Canada is one of a minority of
    Commonwealth countries that provide
any
mechanism to permit
    non-residents to vote. Many do not allow it at all. All the Westminster
    democracies restrict non-resident voting.

[149]

Any particular
    time limit for a citizens absence from the country is bound to involve an
    exercise of judgment. If the section allowed for voting after a longer period
    of absence from Canada, it might accommodate more people, but it would not
    necessarily impair the rights of non-resident citizens any less. The same
    competing rights and principles would remain in play. Any cut-off point will
    produce some arbitrariness at its boundaries, but if it is a principled rule it
    is capable of constituting a reasonable limit.

[150]

Parliament could
    have chosen a period longer than five years, and the record was thin as to the
    rationale for enacting a five-year, as opposed to some other, time limit. The
    corresponding limit in the United Kingdom was an absence of 15 years, for
    example. However, the government did provide rationales for using a period of
    less than five years as a measure of temporary residence.

[151]

Five years is the maximum life of a Parliament. Thus, the regime
    permits a citizen to be away for a full electoral cycle and still
maintain the right to vote. A citizen who returns to
    reside in Canada within the electoral cycle will become subject to the laws of
    the government he or she participated in electing. The duration of a term of an
    elected official has been pointed to as a reasonable standard by which to
    choose an appropriate time limit:
López-Guerra, at p. 226.

[152]

Five years is
    generally enough time to complete a university degree, a common reason for
    Canadian citizens to spend time abroad.

[153]

In considering
    whether the chosen limit is minimally impairing, it is of some assistance to
    consider the record with respect to the practices in other countries. The fact
    that Canada chose to draw the line for external voting at a length of time
    within the range of that drawn in two similar jurisdictions (six years in
    Australia and three years in New Zealand) is some evidence that five years is
    within the realm of reasonable policy choices that were available to Parliament
    to make.

[154]

The Supreme
    Court in
Sauvé #2
(at paras. 13-14) held that a stringent
    justification standard must be applied to a limitation on a core democratic
    right. While this might narrow the range of reasonable options from which
    Parliament may choose, it cannot mean that the courts are entitled to craft
    their own policy ideals to replace those chosen by Parliament. It also cannot
    mean that courts may consider alternatives at the minimal impairment stage that
    do not achieve the governments objective:
Alberta v. Hutterian Brethren of
    Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 54. If the
    government had drawn the line for non-resident voting at ten or 15 years so as
    to infringe the s. 3 rights of fewer citizens, its ability to strengthen the
    connection between those who make the laws and those who are governed by the
    laws would diminish. Because five years falls within the reasonable range of
    policy choices as the point at which to differentiate between temporary
    non-residents and longer-term non-residents who have voluntarily removed
    themselves from the social contract, the means chosen were minimally impairing.

(iii)

Final balancing

[155]

Even if the
    first two requirements of the proportionality test are met, the effects of the
    measures adopted on the persons whose rights are limited must be proportional
    to the benefits of the pressing and substantial objective served by the
    limitation. By definition in a s. 1 analysis, the effect of the impugned law
    will be to limit
Charter
rights. The courts must look beyond this to
    assess the severity of the deleterious effects of the law. The more severe the
    effects, the more important the legislative objective must be:
Oakes
,
    at p. 140.

[156]

In this case,
    the salutary effects of the legislation are the solidification of the bond
    between the electorate and the elected. The representative nature of our
    government is a core democratic principle. The legitimacy of elected
    representatives is strengthened by the fact that they are elected by, and are
    answerable to, those who live in the jurisdiction.

[157]

The deleterious
    effects are measured. There is no outright ban on non-resident voting. In fact,
    the impugned sections enacted the first provisions that made voting generally
    available to non-resident civilians. The right to vote is only denied to those
    who withdraw from the social contract by leaving Canada on a long-term basis.
    In so doing, they cease to be subject to most Canadian law and thereby relinquish
    their right to a voice in that law. The voters rights are not stripped; nor
    are they permanently denied. Their choice is reversible and, as Canadian
    citizens, they are free to return to Canada at any time and remain without
    restriction. They are entitled to vote as soon as they return to reside in Canada.

[158]

The intervener CCLA argued that in this final balancing process
    the court should consider
Charter
values, and in particular the value
    of equality. Its submission was not that the court should embark on a
    full-blown s. 15
Charter
analysis, but that the court should be
    mindful of equality principles and not create a class of second class
 citizens, namely long-term non-resident voters. I am
    not persuaded that the proposed analysis is called for in every case.

[159]

In its
    proportionality analysis, the court must compare the harm which may be
    prevented with the harm of the infringement itself:
Thomson Newspapers Co.
    (c.o.b. Globe and Mail) v. Canada (Attorney General)
, [1998] 1 S.C.R. 877,
    at para. 125. While in some cases the harm of the infringement might include
    an aspect of discrimination, that is not so in the case before us. Non-resident
    voters are not treated differently because they are less worthy of the vote.
    The legitimate reasons for their differential treatment are set out above. I am
    of the view that the salutary effects outweigh the legislations deleterious
    effects.

F.

Conclusion

[160]

The impugned
    provisions violate s. 3 of the
Charter
, but I find that they are saved
    by s. 1. I would allow the appeal and set aside the order of the application judge.

G.R. Strathy C.J.O.

I agree D.M. Brown
    J.A.

Laskin J.A. (Dissenting):

A.

Overview

[161]

Section
3 of the
Canadian Charter of Rights of
    Freedoms
guarantees every Canadian citizen
    the right to vote in a federal or provincial election. The framers of the
Charter
considered this right so important that they did not
    allow Parliament or a provincial legislature to override it. Since the
    enactment of the
Charter
, our
    courts have invalidated federal legislation which, despite s. 3, had deprived
    groups of Canadian citizens of the right to vote  persons with mental
    disabilities, prisoners, even judges. The present case raises the
    constitutionality of the last significant piece of federal legislation denying
    the right to vote to a group of Canadian citizens. That group comprises some,
    but not all, Canadian citizens who have lived outside Canada for more than five
    years.

[162]

The
application judge, Penny J., struck down this
    legislation. He found that it breached s. 3 of the
Charter
and that the government had not justified the breach
    under s. 1. My colleagues accept that this legislation, which precludes the two
    respondents and over one million other Canadian citizens from voting in a
    federal election, breaches s. 3. But they have concluded that the breach is
    demonstrably justified under s. 1 of the
Charter
.

[163]

I
disagree. Instead, I agree with Penny J.s judgment,
    which I consider to be a thorough and well-reasoned analysis of the issues
    under ss. 3 and 1 of the
Charter
.
    Therefore, in this dissent, I will focus only on the new arguments put forward
    by Strathy C.J.O. to justify taking away the respondents right to vote.

[164]

Strathy
C.J.O. concludes that the breach of s. 3 of the
Charter
can be justified by the pressing and
    substantial objective of preserving the social contract at the heart of
    Canadas system of constitutional democracy. In my colleagues opinion, this
    social contract is founded on a connection between a citizens right to elect
    our lawmakers and our citizens obligation to obey the law. He acknowledges
    that the Attorney General did not expressly invoke the social contract before
    the application judge. Nonetheless he says that the application judge
    overlooked or did not give sufficient consideration to this pressing
    objective  an objective the Attorney General now claims motivated the
    five-year non-residency limitation in the
Canada Elections Act
, S.C. 2000, c. 9
.

[165]

I
do not agree with the majoritys judgment for any one
    of three reasons, which I will elaborate on in this dissent. First, neither on
    the application before Penny J., nor even on the later stay motion before
    Sharpe J.A., did the Attorney General propose that this objective of preserving
    the social contract justified breaching the respondents s. 3
Charter
rights. Indeed, in all of the material filed by the
    Attorney General on the application, I cannot find a single reference to this
    so-called social contract. Only in this court, for the first time, did the
    Attorney General rely on this objective to try to meet its burden under s. 1. I
    am dubious whether the Attorney General can fairly raise this new argument on
    appeal, without any evidence before the court about the nature of the social
    contract and how it animated the challenged legislation.

[166]

Second,
to meet its burden under s. 1, the Attorney General must
    rely on an objective that reflects Parliaments intent at the time the
    challenged provisions were enacted  in this case, 1993, when the
Canada
    Elections Act
was amended to extend the
    vote to non-resident citizens who had been absent from Canada for less than
    five years. But the objective the Attorney General and my colleagues now rely
    on does not do so. The record before this court contains no evidence to show
    that when Parliament enacted the five-year non-residency limitation in 1993,
    its intent was to preserve or strengthen the social contract. To now rely on
    this objective runs afoul of the well-recognized shifting purpose doctrine of
    Canadian constitutional interpretation.

[167]

Finally, even if
    the Attorney General could overcome these first two hurdles, in my opinion, the
    preservation of the social contract does not satisfy the governments stringent
    justification burden under s. 1. It is not a pressing and substantial objective
    of the legislation and it does not meet the proportionality requirements of the
    s. 1
Oakes
test.

[168]

To support their
    position that the governments pressing and substantial objective is
    preservation of the social contract, the Attorney General and my colleagues
    point to the Supreme Court of Canadas judgment in
Sauvé v. Canada (Chief Electoral
    Officer)
, 2002 SCC 68, [2002] 3 S.C.R. 519. They also assert that
    residence in Canada provides the subjective and objective connection between
    the electorate and law makers, which they say is the basis of democratic
    legitimacy. In my view neither
Sauvé
nor the role of residence in our
    electoral system supports the majoritys position.

[169]

What the
    Attorney General has done is to fasten onto a single paragraph  paragraph 31
    in the majority reasons of McLachlin C.J.C. in
Sauvé
, decided nine
    years after the legislation in question on this appeal was passed. That
    paragraph, however, was written in a different context and for a different
    purpose. It was written in the context of striking down legislation that took
    away the voting rights of a group of Canadian citizens  those incarcerated in
    our countrys prisons. It was not written for the purpose the Attorney General
    and my colleagues seek to use it: to uphold legislation that takes away voting
    rights from another group of Canadian citizens. On the contrary, as I will try
    to show, the majority judgement in
Sauvé
supports the respondents
    position.

[170]

For my
    colleagues and the Attorney General, residence in Canada appears to be a proxy
    for participation in the social contract, and thus is the philosophical
    foundation of the right to vote. And in the years leading up to enactment of
    the
Charter
, Canadian residence, with few exceptions, was the defining
    criterion of the right to vote. But in 1982 the framers of the
Charter
discarded Canadian residence for another defining criterion: Canadian
    citizenship, and nothing more.

B.

Background

[171]

Strathy C.J.O.
    has summarized much of the relevant background, as well as the provisions of
    the
Canada Elections Act
challenged in this litigation. Here, I add
    only the following brief additional summary.

(1)

The
    challenged legislation

[172]

The
Canada
    Elections Act
prescribes who can vote in a federal election, and by doing
    so, determines who cannot vote. Section 3 sets out the qualifications for
    voting. There are but two: being 18 years of age, which McLachlin C.J.C. said
    in
Sauvé
, at para. 37, merely regulates a modality of the universal
    franchise; and being a Canadian citizen. Notably, even under the statute,
    Canadian residence is not a qualification for voting.

[173]

But then, in
    combination, ss. 11 and 222 set out who can vote, and by implication who
    cannot. Section 11(d) is the main provision challenged on this appeal:

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.

[174]

Part 11 of the
Canada
    Elections Act
outlines the Special Voting Rules, which provide the only
    mechanism under which Canadian citizens living outside of Canada may vote.
    Section 11 determines eligibility for voting under Part 11. The combined result
    of ss. 11(d) and 222 (which falls under Part 11) is that any Canadian citizen
    who has been absent from Canada for more than five years, even though intending
    to return to Canada, is prohibited from voting.

[175]

Both Gillian
    Frank and Jamie Duong have been absent from Canada for more than five years. Both
    intend to return to Canada and reside here when they can find a job in Canada.
    Yet both are prohibited from voting in a federal election.

[176]

There are
    exceptions to the five-year non-residency limitation in s. 11(d). Sections 11
    and 222 together exempt several groups of non-resident Canadian citizens from
    disenfranchisement under s. 11(d). These 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; and

·

Any person who lives with a Canadian citizen in any one of these
    exempted groups

[177]

All of these
    exempted Canadian citizens may vote in a federal election, even though they may
    live outside Canada for decades and have no intention of returning to this
    country.

(2)

The
    respondents Gillian Frank and Jamie Duong

[178]

Each respondent
    is a Canadian citizen. Each has family ties in Canada and cares deeply about
    this country. Each has been living in the United States for more than five
    years: Frank is finishing post-doctoral studies; Duong works at the university
    where he graduated. But each respondent has applied for work in Canada and each
    intends to return to Canada when offered employment here.

[179]

The application
    judge set out the details of each respondents background. I reproduce verbatim
    that portion of his reasons.

(a)

Gillian Frank

Dr. Frank has strong ties to Canada and cares deeply about this
    country.  He completed undergraduate studies at York University.  During his
    final year of high school and through part of his university career, Dr. Frank
    was a member of the Canadian Forces and served in a communications regiment,
    mostly on a part-time basis.  He served full-time for one semester of high
    school and during the 1998 ice storm in Eastern Ontario.

Following his graduation from York University, Dr. Frank was
    accepted on full scholarship for seven years for graduate studies to Brown
    University in Providence, Rhode Island.  While Dr. Frank now is completing
    post-doctoral studies in the United States, he has applied (unsuccessfully to
    date) for every academic job in Canada that is appropriate to his expertise and
    would advance his career.

Dr. Franks wife is a Canadian citizen who was born and grew up
    in Toronto.  Dr. Franks parents and immediate family, as well as his wifes
    family, all live in Toronto.  Dr. Frank and his wife now have one child.  If
    Dr. Frank is successful in obtaining an academic position in Canada, he will
    move back to Canada without hesitation.  Dr. Frank and his wife would prefer to
    raise their child in Canada.  They identify themselves as Canadian and hold
    values that they associate with their Canadian heritages.  Dr. Frank travels to
    Canada approximately four times per year.

At Brown University, he founded a Canadian club (with events
    sponsored by Tim Hortons and Labatt). Since living in New York, he has joined
    the Canadian Association of New York.  He has participated on multiple
    occasions in the Terry Fox run in Central Park.  He is well-informed about
    Canadian politics.  Dr. Frank does not intend to permanently reside in the
    United States.  He wants to move to Canada and is making every effort to obtain
    an academic position here.  He is only in the United States because he has not
    been able to obtain a job in Canada in his chosen profession.  He has not
    sought immigration status in the United States other than on a temporary
    basis.

(b)

Jamie Duong

The Applicant, Jamie Duong, was born in Montreal, Quebec and
    currently lives in Ithaca, New York.  He is a citizen of both Canada and the
    United States.  He has voted in person in a number of Canadian federal and
    provincial elections since being based in the United States

Mr. Duong also resides in the United States because of his
    employment.  He obtained his Bachelor of Science Degree from Cornell University
    and, upon graduation, he converted part-time employment on campus into
    full-time employment. He now holds a systems administrator information
    technology position on campus.

Mr. Duong has applied for positions in Canada related to his
    expertise, without success. If he finds an appropriate professional position in
    Canada, he will return to live here.  Mr. Duong has strong ongoing connections
    to Canada.  His immediate family  his parents and sister  all live in
    Montreal.  He attended school in Montreal until grade ten and then transferred
    to a school in Vermont.  While he was attending high school and at Cornell
    University, he spent his summer and almost every other holiday in Canada, both
    at a family property in Nova Scotia and assisting his father at his computer
    store in Montreal.  Mr. Duongs family continues to own property in Canada.  He
    expects that partial ownership of two of the properties will be transferred to him
    over the next several years.  Mr. Duong also continues to return to Canada
    regularly.  He typically returns to Canada every Christmas, for a stretch
    during the summer, and for other holidays through the year.

(3)

Section 3 of
    the
Charter

[180]

Section 3
    states:

Every citizen of Canada has the right to vote in an election of
    members of the House of Commons or of a legislative assembly and to be
    qualified for membership therein.

[181]

Before the
    application judge, the Attorney General argued that s. 11(d) of the
Canada
    Elections Act
(and the accompanying registration requirements in ss. 222,
    223, and 226) did not breach s. 3 of the
Charter
. The application
    judge rejected this argument. He found a breach.

[182]

On appeal, the
    Attorney General abandoned this argument. He now concedes that the legislation
    challenged in this litigation contravenes s. 3 of the
Charter
. Thus
    this appeal turns on s. 1 of the
Charter
: has the government met its
    burden to show that the breach of the respondents s. 3 rights is demonstrably
    justified  a justification McLachlin C.J.C. emphasized in
Sauvé
must
    be convincing?

C.

Discussion

[183]

As stated in the
    overview, I dissent for three reasons:

[184]

The pressing and
    substantial objective the Attorney General puts forward and on which my
    colleagues rely  preservation of the social contract  is a new argument,
    raised for the first time in this court. I do not think it fair to either the
    respondents or the application judge, nor is it appropriate, to rely on this
    new argument when the record contains no evidence to support it.

[185]

Parliament did
    not have this objective in mind when it enacted the five-year non-residency
    limitation in 1993.

[186]

The objective
    itself is not pressing and substantial and does not meet the proportionality
    requirements of the
Oakes
test.

(1)

New argument
    on appeal

[187]

The Attorney
    General and my colleagues argue that the objective of preserving the social
    contract justifies breaching the respondents s. 3 rights. This is a new
    argument made for the first time in this court. That it is a new argument is
    evident from the reasons of the application judge and those of Sharpe J.A. on
    the stay motion.

[188]

The application
    judge set out in detail the objectives proffered before him by the Attorney General.
    They were two: unfairness to resident voters and maintaining the integrity of
    our electoral system.

The Attorney General argues that Parliaments pressing and
    substantial objectives in restricting non-resident voting were twofold:

(1) to extend the right to vote to non-resident citizens but
    not to the point of giving rise to unfairness for Canadas resident voters and

(2) to maintain the proper functioning and integrity of
    Canadas electoral system and system of parliamentary representation.

[189]

The application
    judge then set out the Attorney Generals reasons for each objective:

Regarding the first objective, non-resident voting is said to
    be unfair for the following reasons:

(a) Non-residents no longer have the same substantial
    connection to Canada in terms of their citizenship obligations.  Resident
    voters remain subject to all laws enacted by those elected while non-residents
    may only be affected by some laws.

(b) Despite the internet and access to news on national
    campaigns, non-residents will not be versed in local issues to the same extent
    as residents, with local issues being an important influence on the result of
    elections.

(c) A single vote can decide the outcome in Canadas
    electoral system (first past the post), magnifying the unfair influence of
    non-resident votes particularly when their votes will be most prevalent in a
    limited number of highly urbanized electoral districts.

Regarding the second objective, non-resident voting is said to
    raise concerns over the integrity of the electoral and parliamentary
    representation systems for the following reasons:

(a) There are risks of electoral fraud and ineffectiveness
    of any extraterritorial reach of the Act in terms of its electoral finance
    regime.

(b) Non-resident voting could increase constituency demands
    of non-resident voters making it more difficult for MPs to deliver effective
    representation to the residents in their ridings.

[190]

Nowhere in this
    detailed recitation of the Attorney Generals position do we find any mention
    of preserving the social contract. The reasons of the application judge are so
    thorough, so comprehensive, and his description of the parties positions so
    detailed, I find it hard to believe he would not have addressed the social
    contract objective had it been argued before him.

[191]

Nor was the
    social contract raised at the stay motion. I have read the factum of the
    Attorney General filed on his stay motion, which was heard in June 2014. It
    does not mention a social contract. By contrast, his factum filed on appeal
    mentions the social contract 27 times. And Sharpe J.A., in summarizing the
    Attorney Generals position, reiterated that it was based on unfairness to
    resident voters. He noted, In oral argument, counsel insisted that
    Parliaments central concern was election fairness.

[192]

It might seem
    that preservation of the social contract is merely a rhetorical gloss on
    unfairness. But I see them as fundamentally different, both in form and
    substance. The form, the label social contract, obviously differs from
    unfairness. So too does the substance. The fairness argument put to the
    application judge is one-sided: residents are subject to more laws than
    non-residents, so it would be unfair to residents to permit non-residents to
    vote. Preservation of the social contract, however, as Strathy C.J.O. notes, is
    not one-sided  it rests on reciprocity and mutuality: only those obliged to
    obey the laws can legitimately elect their lawmakers.

[193]

Furthermore, the
    Attorney General has put forward no evidence about the nature or basis of this
    social contract, which he uses to justify restricting the voting rights of more
    than one million Canadian citizens. The Attorney Generals argument evidently
    presumes that the social contract has an objective and identifiable content,
    closely linked to residence. Yet as I have said, in the more than 9000 page
    application record, the social contract is not mentioned once. The evidence he
    put forward in support of his fairness argument does not address the social
    contract on which he now relies.

[194]

What then
    follows? First, it is surely unfair to criticize the application judge for
    failing to consider an argument not made before him. Second, this court has
    understandably been wary about considering new arguments raised for the first
    time on appeal. It will only do so if it has a proper evidentiary record and if
    considering the new argument is not unfair to the responding parties: see, for
    example,
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[195]

The responding
    parties have dealt with the social contract argument in their factums, and have
    not suggested any unfairness. I am concerned, however, about the record, or
    more accurately the absence of anything in the record that touches on the
    social contract. Apart from the single paragraph in the majority reasons in
Sauvé
 which I will come to  we have almost nothing that bears on this objective.
    For that reason I have serious doubts about whether this court should entertain
    this argument. However, assuming it is entitled to do so, I turn to my other
    two objections.

(2)

The
    governments objective does not reflect Parliaments intent when the challenged
    legislation was enacted.

[196]

As Strathy
    C.J.O. notes at paragraph 86 of his reasons, the objective the government
    relies on to justify the breach of a
Charter
right must correspond to
    Parliaments intent at the time the law was enacted. In
R. v. Zundel
,
    [1992] 2 S.C.R. 731, at p. 761, McLachlin J., writing for a majority of the
    Court, elaborated on this proposition:

In determining the objective of a legislative measure for the
    purposes of s. 1, the Court must look at the intention of Parliament when the
    section was enacted or amended. It cannot assign objectives, nor invent new
    ones according to the perceived current utility of the impugned provision. [Citations
    omitted.]

[197]

Yet the Attorney
    General has done precisely what the Supreme Court of Canada said he cannot do
    he has invented a new objective after the provisions in issue were enacted  in
    this case, well after the non-resident voting limits were enacted.

[198]

The record
    before us about what motivated Parliament to pass the 1993 amendments is
    meagre. As I will discuss, four parliamentary studies on voting rights  two
    before and two after the 1993 amendments  all recommended removing any
    residency limitation on Canadian citizens constitutional right to vote.
    Nonetheless, it seems that some parliamentarians were concerned, albeit without
    any evidentiary support, that Canadian citizens away from the country for too
    long may have lost their affinity or connection to the country. To address
    this concern, the House of Commons passed the 1993 amendments to the
Canada
    Elections Act
, enacting the five-year non-residency limitation. The record
    is unclear why Parliament chose five years as opposed to some other number. It
    appears to have been a middle of the road compromise.

[199]

What is clear is
    that not a single parliamentarian, not a single study, recommended a five-year
    non-residency limitation in order to preserve or strengthen our social
    contract. No one expressed any concern that Canadians living abroad had
    withdrawn from the social contract, and thus disentitled themselves from
    voting. The notion of a social contract is entirely absent from the
    parliamentary debates.

[200]

Strathy C.J.O.
    acknowledges as much when he writes, at paras. 101-103 of his reasons, that
    Parliaments concern was not expressly directed at protecting the social
    contract, but that it was implicit in the rationale underlying the law. It is
    implicit, in his view, because the social contract has both a subjective and an
    objective component.

[201]

According to the
    Attorney General, whose arguments my colleagues accept, the subjective
    component rests on citizens affinity to and knowledge of Canada. The objective
    component rests on the connection between citizens obligation to obey the laws
    and their right to elect their lawmakers. My colleagues implicitly acknowledge
    that the application judge addressed and had sound reasons for rejecting the
    disenfranchisement of Canadian citizens based on the subjective component of
    the social contract. But they say he did not address the objective component.
    And though Parliament may have considered only the subjective component of
    protecting the social contract when it passed the 1993 legislation, they say
    defending the legislation on the basis of the objective component, on which the
    government now relies, is a permissible shift in emphasis. So it does not,
    according to the Attorney General and my colleagues, run afoul of the shifting
    purpose doctrine set out above in
Zundel
.

[202]

In my opinion,
    this notion that the social contract has two components, a subjective and an
    objective component, is an artifice, conjured up by the Attorney General to
    avoid running up against the shifting purpose doctrine. No evidence was presented
    about the nature of the social contract, much less about its supposed objective
    and subjective components. And nothing in the reasons in
Sauvé
supports this notion.

[203]

Paragraph 31 of
Sauvé
and even the writings of 18
th
century political theorists such as
    John Stuart Mill and Jean-Jacques Rousseau talk about the connection between
    citizens obligation to obey the law and the right to vote for those who make
    the laws. This is the so-called objective component of the social contract. But
    none of these sources suggest a link between an objective and a subjective
    aspect of the social contract.

[204]

The concerns of
    the parliamentarians in 1993 about non-resident citizens affinity to Canada
    and connection to this country had nothing to do with the objective component
    of the social contract. Parliament did not intend to preserve, protect, or
    strengthen the social contract when it passed the 1993 legislation. This
    objective was invented by the government long after 1993; indeed, it appears to
    have been invented after this case was decided by the application judge. The
    governments objective therefore cannot justify the breach of the respondents
    s. 3 rights. On this ground alone, this appeal must fail.

[205]

Nonetheless I
    will address the governments objective on its merits, on the assumption it
    reflected Parliaments intent when the legislation was enacted.

(3)

The
    objective of preserving the social contract does not satisfy the governments
    burden under s. 1 of the Charter

[206]

To justify a
Charter
breach under s. 1, the government must show on a balance of probabilities that
    the infringing measures further a constitutionally valid purpose or objective,
    and that the means chosen to achieve that objective are reasonable and
    demonstrably justified. This two-part test focuses on the legitimacy of the
    objective and the proportionality of the means. Because the right at stake is a
    core democratic right, judicial scrutiny of the governments justification
    should be exacting, not deferential. See
Sauvé
, at paras. 7-9; 13-14.
    Contrary to the opinion of my colleagues, I do not think that the government
    can meet either part of this two-part test.

(a)

The objective of preserving the
    social contract is not a pressing and substantial objective

[207]

To be a valid
    objective under s. 1, the governments objective in infringing the respondents
Charter
-protected right to vote

must be pressing and
    substantial. Preserving the social contract does not meet this standard. It is
    not supported by the four parliamentary reports that examined voting rights in
    the period 1986 to 2006, by the place of Canadian residence in our electoral
    system, or, in my opinion, by the Supreme Court of Canadas judgment in
Sauvé
.

(i) The four Parliamentary reports
    that examined voting rights

[208]

Voting rights
    were considered in four parliamentary reports in the 20-year period bracketing
    the 1993 legislation.

[209]

The first report
    was the 1986 White Paper on Election Law Reform, published by the Privy Council
    Office. This White Paper recommended comprehensive legislative reform,
    including a recommendation that all Canadian citizens, at home or abroad, be
    permitted to vote. After the White Paper, Bill C-79 was introduced. It
    contained no non-residency limitation on the right of Canadian citizens to
    vote. Bill C-79 was not passed before Parliament was dissolved in 1988.

[210]

The second
    report was the 1991 report,
Reforming Electoral Democracy
, issued by
    the Royal Commission on Electoral Reform and Party Financing (the Lortie
    Commission). In this report, the multi-party commission addressed (among other
    things) the concern of parliamentarians debating Bill C-79 that some Canadians
    living abroad may not have a sufficient connection to Canada. The Lortie
    Commission concluded that this concern did not justify disenfranchising any
    Canadian citizens living abroad:

Canadians live abroad for many reasons, including their
    occupation or that of their spouse or parent; in many cases their presence
    abroad contributes directly to the benefit of Canada or Canadian interests and
    ideals ... Nor is it the case that all Canadians abroad have severed their ties
    to Canada.

We conclude that the administrative difficulties of serving
    voters living abroad do not constitute an acceptable justification for
    disenfranchising these citizens.  The United States, France, Germany, Australia
    and Great Britain make provisions for voters living abroad to register and to
    vote, as do Quebec and Alberta.  In all of these cases, it has been recognized
    that with modern telecommunications and the international press, the argument
    that citizens living abroad cannot be informed about public affairs at home no
    longer applies. Moreover, with increasing globalization of the world economy,
    the number of Canadians travelling and living abroad will likely increase in
    the coming years.

[211]

The Commission
    said:

[W]e should trust these Canadians. We should assume that they
    continue to have a stake in Canada and keep themselves sufficiently informed as
    citizens. In other words, we should not attempt to impose on citizens living
    outside Canada conditions that are not imposed on those residing in Canada.

[212]

After the
    government received the Lortie Commissions report, it appointed a Special
    Committee to review the report. The review led to Bill C-114, which passed in
    1993 and included the provisions challenged in this litigation.

[213]

The third report
    was the 2005 report of the Chief Electoral Officer of Canada, Jean-Pierre
    Kingsley: Completing the Cycle of Electoral Reforms: Recommendations from the
    Chief Electoral Officer of Canada on the 38
th
General Election
    (Ottawa: Elections Canada, 2005). He recommended removing the limitation on
    voting for those Canadian citizens outside of Canada for five years or more,
    but who intended to return to Canada as residents:

In light of the Supreme Court of Canadas decision in
Sauvé
,
    it is questionable whether a Court would find that denying the right to vote to
    individuals who have been absent from Canada for a long time but who intend to
    return as residents is a reasonable limit on the right that can be demonstrably
    justified in a free and democratic society.  It is indeed difficult to explain
    what pressing objective is served by distinguishing between those who have been
    absent from the country for five years as opposed to six, ten or twenty years.

[214]

The fourth
    report was that of the House of Commons Standing Committee on Procedure and
    House Affairs in 2006,
Improving the Integrity of the Electoral Process:
    Recommendations for Legislative Change
. The Committee, which was directed
    to consider Kingsleys recommendation, included members of all major political
    parties. It too recommended removing the five-year limitation on the voting
    rights of non-resident Canadian citizens. While giving evidence before the
    Committee, the Committee Researcher commented:

At this point in time there would be no problem that I see with
    removing either the five-year limitation or, if you wish, removing the
    requirement that they intend to return to Canada.  It was just that in the
    early 1990s, because they were bringing in a new rule, a new provision, they
    built in those two requirements.

[215]

One of the
    Committee members, M.P. Michel Guimond was more pointed in his comments about
    the five-year non-residency limitation. He asked: Did this rule fall from the
    sky or out of a tree?

[216]

The government
    did not reject the Committees recommendation. Instead, it said that the recommendation
    should be considered in the context of a comprehensive review of the special
    voting rules. That review has never taken place. Nonetheless, I question how
    the five-year non-residency limitation can be seen as furthering a pressing and
    substantial government objective, when four parliamentary reports have each
    recommended its abolition.

(ii)
The role of residence in
    Canadas electoral system

[217]

In the Attorney
    Generals and my colleagues view, Canadian residence plays a crucial role in
    defining who should be entitled to vote in Canada. Residence, in their opinion,
    is a pre-requisite for full participation in the social contract. Permitting
    all non-residents to vote would erode the social contract and undermine the
    legitimacy of our laws because it would allow non-residents to participate in
    making laws that affect Canadian residents on a daily basis, but which have
    little or no practical consequences for their daily lives. Strathy C.J.O. says
    that the application judge erred by reducing the role of residence to a mere
    organizing principle, and that he failed to recognize the legitimizing effect
    of the social contract and the central place of residence within it. I take a
    different view of the role of residence.

[218]

Broadly,
    residence is, as the application judge said it was, an organizing principle to
    facilitate voting. It should not be used as my colleagues use it, to undermine
    voting rights. To do so would reduce non-residents to second class citizens and
    discriminate against them solely because of where they live.

[219]

More
    specifically, I cannot accept that residence is a marker of participation in
    the social contract, as my colleagues contend, or that permitting all
    non-residents to vote would somehow erode the social contract. I start with two
    obvious points, each of which shows why my colleagues position cannot be
    sustained.

[220]

First, the
    connection between residence and voting rights arose many years ago when travel
    was difficult, people tended to live their whole lives in one community, and
    only male property owners could vote. Thus historically, Canadian residence did
    largely dictate the right to vote in Canada, especially with the 1920 enactment
    of the
Dominion Elections Act
, R.S.C. 1927, c. 53.

[221]

But much has
    changed since then. We live in a global community; travel is easy; many people
    do not live in one community their whole lives; and we have long since
    discarded the notion that only male property owners should be entitled to vote.
    Undoubtedly, the framers of the
Charter
recognized these changes. They
    could have maintained Canadian residence as the criterion defining the
    community of eligible voters. But, wisely, they did not. Instead they provided
    a new criterion much more suited to the world we now live in: the community
    defined by Canadian citizenship. As the application judge said, at para. 91:
    the framers and adopters of the
Charter
decided in 1982 that the
    sufficient interest at stake to be able to exercise the democratic franchise
    under our Constitution is Canadian citizenship.

[222]

Second, even under
    the legislation in its present form and after the 1993 amendments, Canadian
    residence is not a qualification for voting. The only qualifications outlined
    in s. 3 of the
Canada Elections
Act are age and Canadian citizenship.
    And Parliament had good reason for not making Canadian residence a
    qualification for voting, because under the statute, many non-residents can
    vote. The judgment of the application judge merely extended the vote to a
    broader class of non-residents. And for those non-residents already entitled to
    vote under the
Canada Elections Act
, either because they have lived
    abroad for less than five years or because they are in a group exempted from
    the five-year non-residency limitation, residence is a fiction. For voting
    purposes, all of these non-residents may identify a residence where they have
    never lived  in other words, a fictitious residence. Removing the five-year
    residency rule will thus have no impact on the role of residence. It will
    remain an important organizing feature of our electoral system.

[223]

I agree that
    more laws, even many more laws, affect residents than non-residents. But even
    among residents, legislation does not affect all citizens equally. Thus I do
    not agree that the number of laws a Canadian citizen is subjected to can be
    tied to the preservation of the social contract.

[224]

Yet my
    colleagues seem to say that because non-residents are affected by far fewer
    laws, they are not part of the Canadian social contract. I cannot accept that
    this is so. Non-residents have the same obligation to obey the laws that affect
    them as do residents. Non-residents pay Canadian income tax on their Canadian
    income, and property tax on any real property they may own in Canada. They must
    obey laws relating to their Canadian credit cards or bank accounts. As the
    application judge rightly wrote, at para. 88 of his reasons:

[N]on-resident Canadians can and do live with the consequences
    of Parliaments decisions.  The evidence is that many non-resident Canadians
    visit their home frequently and intend to return.  That is precisely the
    situation with the two Applicants in this case.  Parliaments decisions have
    lasting effect.  The fact that a Canadian does not live here now does not mean
    he or she will not be affected by Parliaments decisions in the future.
    Furthermore, many non-resident Canadians also have relatives here.  Canadian
    laws affect the resident parents, brothers, sisters, and children of
    non-resident and resident Canadians alike.

[225]

For these
    reasons, in my opinion, Canadian residence cannot be held out as a proxy for
    participation in the Canadian social contract. Nor can I agree that promoting
    the social contract by limiting the vote to residents and temporary
    non-residents qualifies as a pressing and substantial government objective,
    justifying a breach of the respondents s. 3 rights.

(iii)
The Supreme Court of
    Canadas judgment in Sauvé

[226]

Strathy C.J.O.
    relies heavily on
Sauvé
 especially para. 31 of McLachlin C.J.C.s
    reasons  in support of his argument that preserving the social contract is a
    pressing and substantial government objective of the five-year non-residency
    limitation. That paragraph, which I note parenthetically is found not in the
    Chief Justices analysis of the governments objectives, but in her analysis of
    proportionality, reads as follows:

Denying penitentiary inmates the
    right to vote misrepresents the nature of our rights and obligations under the
    law and consequently undermines them. In a democracy such as ours, the power of
    lawmakers flows from the voting citizens, and lawmakers act as the citizens'
    proxies. This delegation from voters to legislators gives the law its
    legitimacy or force. Correlatively, the obligation to obey the law flows from
    the fact that the law is made by and on behalf of the citizens. In sum, the legitimacy
    of the law and the obligation to obey the law flow directly from the right of
    every citizen to vote. As a practical matter, we require all within our
    country's boundaries to obey its laws, whether or not they vote. But this does
    not negate the vital symbolic, theoretical and practical connection between
    having a voice in making the law and being obliged to obey it. This connection,
    inherited from social contract theory and enshrined in the Charter, stands at
    the heart of our system of constitutional democracy.

[227]

It is not for me
    to say whether the Chief Justice intended by this passage to provide the
    federal government with a legitimate basis to deprive a group of Canadian
    citizens of the right to vote. On my reading of the case, however, the majority
    reasons of the Chief Justice actually support the position of the respondents
    on this appeal. To try to show why that is so, I make the following six points.

[228]

First, para. 31
    and indeed all of the majority reasons in
Sauvé
were directed at
    recognizing voting rights, not undermining them. The social contract referred
    to in para. 31 was used to enfranchise citizens, not to disenfranchise them.
    This paragraph states that even prisoners are included in the Canadian social
    contract, and are thus entitled to vote. As I read her reasons, the Chief
    Justice does not suggest that the social contract is a basis for limiting
    voting rights.

[229]

Second, I read
    the majority reasons in
Sauvé
as an uncompromising defence of the
    right of every Canadian citizen to vote, even those convicted of the most
    heinous crimes. The Chief Justice said at para. 35, quoting the South African
    Constitutional Court with approval: The voting of each and every citizen is a
    badge of dignity and of personhood. Quite literally, it says that everybody
    counts. These poignant words, respectfully, do not appear to lend any support
    to the Attorney Generals position on this appeal. Quite the opposite.

[230]

Other passages
    in the Chief Justices reasons similarly show that depriving non-resident
    citizens of their right to vote cannot be justified. For example, para. 32:

Denying a citizen the right to vote denies the basis of
    democratic legitimacy. It says that delegates elected by the citizens can then
    bar those very citizens, or a portion of them, from participating in future
    elections. But if we accept that governmental power in a democracy flows from
    the citizens, it is difficult to see how that power can legitimately be used to
    disenfranchise the very citizens from whom the government's power flows.

[231]

And then, at
    para. 34:

A government that restricts the franchise to a select portion of
    citizens is a government that weakens its ability to function as the legitimate
    representative of the excluded citizens, jeopardizes its claim to
    representative democracy, and erodes the basis of its right to convict and
    punish law-breakers.

[232]

And then
    finally, at para. 41:

The government's novel political theory that would permit
    elected representatives to disenfranchise a segment of the population finds no place
    in a democracy built upon principles of inclusiveness, equality, and citizen
    participation. That not all self-proclaimed democracies adhere to this
    conclusion says little about what the Canadian vision of democracy embodied in the
Charter
permits.

[233]

Third, a social
    contract is a symbolic representation of the relationship between citizens and
    the state, based on one theory drawn from political philosophy. Yet in her
    majority reasons the Chief Justice said that to qualify as a pressing and
    substantial objective, a symbolic and philosophically-based objective must be
    tethered to a specific harm, a specific problem, or at the very least a
    potential harm if the legislation is struck down. And the government must
    produce some evidence of this harm. Yet the Attorney General has put forward no
    evidence of harm, real or potential, that would flow from invalidating the
    five-year non-residency limitation  no studies, no complaints from Elections
    Canada, no concern from any other reputable source.

[234]

Fourth, in
Sauvé
itself the Attorney General argued that prisoners were not entitled to vote
    because they have opted out of membership in the community. The majority
    rejected that argument. Similarly here, the Attorney General argues that some
    longer-term non-resident Canadian citizens should not be entitled to vote
    because they have opted out of the social contract. In substance I see little
    difference between the two arguments. Thus I would reject the Attorney
    Generals argument in this case.

[235]

Fifth, social
    contract theory was developed in the 18
th
century by political
    theorists such as John Stuart Mill and Jean-Jacques Rousseau, when the right to
    vote was the exclusive right of male property owners. Since then, governments
    have gradually stripped away prohibitions on voting rights. As the Chief
    Justice noted in
Sauvé
, at para. 33: The history of democracy is the
    history of progressive enfranchisement. And: Canadas steady march to
    universal suffrage culminated in 1982 with our adoption of the constitutional
    guarantee of the right of all citizens to vote in s. 3 of the
Charter
.
    The modern emphasis in voting rights is on equality and inclusiveness. To
    maintain the five-year residency rule is a retrograde step signalling a return
    to a measure of exclusiveness.

[236]

And finally, in
    my opinion, the Attorney General and my colleagues have substituted a
    philosophical justification for voting rights for the constitutional guarantee
    in s. 3 of the
Charter
. Although the relationship between citizens and
    legislators reflected in the social contract may have justified the right to
    vote before 1982, the
Charter
redefined this relationship. It defined
    the right to vote as inhering in citizenship, not in a notion of reciprocity
    between those who make the laws and those who must obey them.

[237]

For these
    reasons, I am not persuaded that preserving the social contract is a pressing
    and substantial objective, which justifies depriving Gillian Frank and Jamie
    Duong, and one million other Canadian citizens, of their right to vote.

[238]

As in
Sauvé
however, I will discuss and attempt to show that the government has not met the
    proportionality requirements of the
Oakes
test.

(b)

The means chosen to achieve the
    governments objective are not reasonable and demonstrably justified

[239]

Proportionality
     the second part of the
Oakes
test  has three branches. The
    government must show:

·

the denial of the respondents right to vote is rationally
    connected to the governments asserted objective, in that it will achieve or
    further that objective;

·

the respondents rights are minimally impaired  that is, the
    denial of their right to vote does not go further than reasonably necessary to
    achieve the governments objective; and

·

the overall benefits of the challenged legislation outweigh its
    harmful effects on the respondents.

(i)
No rational connection

[240]

In my opinion,
    the denial of the respondents right to vote is not rationally connected to the
    governments asserted objective of preserving the social contract or of its
    asserted concern to maintain the primacy of Canadian residence in our electoral
    system. And the choice of a five-year non-residency limitation bears no
    rational connection to these objectives. It was simply a middle of the road
    compromise. Canadians citizens abroad for just under five years, or those in
    groups exempted from the non-residency limitation for many more years, are
    entitled to vote, although they, like the respondents, are not bound to obey
    the majority of domestic laws. Moreover, since even non-resident citizens
    absent from Canada for more than five years remain subject to and affected by
    the laws that do apply to them, excluding them from voting is not rationally
    connected to the objective of preserving the social contract.

[241]

Strathy C.J.O.
    says that the five-year non-residency limitation has nothing to do with
    worthiness. I think it has everything to do with worthiness. The current scheme
    for non-resident voting impliedly assumes that public servants posted abroad or
    employees working in an international organizations, and even those living with
    them, are worthy of voting, though they may be away from Canada for many years
    and have no intention of ever returning. But Canadian citizens pursuing
    postsecondary and post-doctoral studies abroad for seven, eight or ten years so
    they can return to Canada as productive members of our society, and who care as
    deeply about Canada as the public servant posted abroad, can no longer vote.
    Nor can the Canadian citizen working for a Canadian corporation or a Canadian
    bank who was sent to work in one of the corporations or banks overseas
    offices.

[242]

These Canadian
    citizens, abroad for a wide variety of reasons both personal and professional,
    have not, as Strathy C.J.O. contends, severed their connections with Canada in
    the pursuit of their own livelihoods. They often maintain strong ties and
    affinity to Canada. They have not renounced membership in the Canadian polity.
    But under the legislation, the place of their residence deems them unworthy to
    be entitled to vote.

[243]

The words of
    McLachlin C.J.C. in
Sauvé
, at paras. 34-35, ring true in the present
    case: A government that restricts the franchise to a select portion of its
    citizens is a government that  jeopardizes its claim to representative
    democracy. Denying a group of citizens the right to vote has the potential to
    violate the principles of equality rights and equal membership embodied in and
    protected by the
Charter
.

(ii)
No Minimal impairment

[244]

The five-year
    non-residency limitation is an arbitrary line, which has no bearing on a
    citizens connection to Canada or on a citizens obligation to obey the laws
    that affect that citizen. Indeed, no marker of this connection is needed beyond
    citizenship itself, or if citizenship itself is not enough, then as the
    application judge said, citizenship together with the act of voting.

[245]

The Attorney
    General contends that the groups of non-resident citizens entitled to vote
    because they are exempt from the five-year limit, such as public servants
    posted abroad, members of the Canadian Forces, or Canadian employees of
    international organizations, are carefully tailored to electors who have or
    will soon assume responsibilities as residents to obey our domestic laws. He
    also asserts that the work of these citizens abroad demonstrates a different
    (and often more poignant) participation in Canadas social contract. The
    Attorney General filed no evidence to support these contentions. These groups
    may live outside Canada for decades and have no intention of ever returning,
    but may still be entitled to vote. The governments attempt to meet the minimal
    impairment branch of the proportionality test must therefore fail.

(iii)
Harmful
    effects outweigh benefits

[246]

Strathy C.J.O.
    asserts that the benefit of the five-year non-residency limitation is that it
    solidifies the bond between the electorate and the elected; and that the
    harmful effects are measured because the legislation does not impose an
    outright ban on non-resident voting. I disagree with my colleagues assertions.

[247]

The benefits of
    the five-year non-residency limitation are thin, especially because already
    several groups of Canadian citizens who may live outside Canada for many years
    are entitled to vote. These groups of citizens have no more obligation to obey
    our laws than do Gillian Frank and Jamie Duong, yet unlike Frank and Duong, they
    can participate in the election of our lawmakers. To the extent the social
    contract is eroded when individuals not subject to the majority of Canadas
    laws participate in electing our lawmakers, surely it has already been eroded
    by the rules extending the vote to those individuals.

[248]

By contrast, the
    harmful effects of depriving the respondents of their right to vote are
    significant. Voting, participating in the selection of a countrys
    representatives, is a cornerstone of a free and democratic state. Depriving a
    person of this most fundamental benefit of citizenship, constitutionally
    guaranteed in Canada, must inevitably have a serious adverse impact. This
    deprivation turns the respondents into second class citizens and so undermines
    the values of equality and inclusiveness stressed in
Sauvé
and
    underlying our
Charter
rights.

[249]

Moreover, laws
    made today affect how our country will be governed, not just in the immediate
    future, but for years to come. Yet Canadian citizens abroad for more than five
    years, such as the respondents, will have no voice in the future direction of
    their country even though they have family here, intend to return here, and
    thus will be affected by laws enacted while they are abroad.

[250]

In this final
    balancing, these harmful effects on the respondents far outweigh any benefits
    achieved by the challenged legislation.

(4)

Provincial
    and territorial legislation, international case law and the writings of
    political theorists

[251]

Strathy C.J.O.
    also relies on these sources to support his position. At para. 96 of his
    reasons, the application judge dealt with the residency requirements in
    provincial and territorial legislation. I agree with him that those
    requirements are quite distinguishable from the legislation in question on this
    appeal.

[252]

Likewise, I agree
    with the application judge that international jurisprudence is of limited or no
    assistance, both because of the deferential stance taken by international
    tribunals and because Canada has been a leader in expanding voting rights for
    its citizens.

[253]

Undoubtedly,
    some modern political theorists support my colleagues position, and in his
    reasons Strathy C.J.O. has excerpted passages from their writings. But other
    theorists do not: see, for example, Rainer Bauböck, Stakeholder Citizenship
    and Transnational Political Participation: A Normative Evaluation of External
    Voting (2006-07) 75 Fordham L. Rev. 2393; Ruth Rubio-Marin, Transnational
    Politics and the Democratic Nation-State: Normative Challenges of Expatriate
    Voting and Nationality Retention of Emigrants (2006) 81 N.Y.U. L. Rev. 117;
    David Owen, Resident Aliens, Non-resident Citizens and Voting Rights: Towards
    a Pluralist Theory of Transnational Political Equality and Modes of Political
    Belonging, in Gideon Calder, Phillip Cole & Jonathan Seglow, eds.,
Citizenship
    Acquisition and National Belonging: Migration, Membership and the Liberal
    Democratic State
(London: Palgrave Macmillan, 2009). These authors, among
    others, reject the notion that extending voting rights to non-residents
    undermines democratic legitimacy. However, no theoretical or philosophical
    writings on either side of this debate were explored in the argument before us.
    I think little is to be gained by reference to one or more of these scholarly
    writings.

D.

Conclusion

[254]

For the reasons
    of the application judge and these additional reasons, I would dismiss this
    appeal.

John Laskin J.A.

Released: July 20, 2015

[1]

Sauvé v. Canada (Chief Electoral Officer)
, 2002 SCC 68, [2002] 3 S.C.R.
    519, at para. 1.

[2]
Other than certain exempt classes, discussed below, such as military and public
    service personnel posted abroad.

[3]
This number does not include military and diplomatic personnel or employees of
    international organizations.

[4]
It should be noted that the appellant asserts these citizens who have been
    non-residents for five or more years also have no right to vote in person at a
    polling station under ss. 127(a) or (b). The CEO intervener denies this and has
    adopted an administrative policy of permitting non-residents to attend a
    polling station in person and cast a vote. It is not necessary to decide in
    this appeal which view is legally correct. Instead, it may be assumed that the
    appellant is correct, as that only makes its justification of the s. 3
    infringement more challenging.

[5]
Prior to April 17, 2009, there was no requirement for the Canadian parent to be
    born or naturalized in Canada.

[6]
Including amendments that came into force on June 11, 2015.

[7]
Jean-Jacques Rousseau, The Social Contract (1762), in Sir Ernest Barker
    (ed.),
Social Contract: Essays by Locke, Hume, and Rousseau, with an
    Introduction by Ernest Barker
(Westport, Connecticut: Greenwood Press,
    1980) 167, at pp. 203-204.

[8]
The
Statute of Westminster
, 1931, 22 Geo. V., c. 4, s. 3 (U.K.),
    reprinted in R.S.C. 1985, App. II, No. 27, granted jurisdiction to British
    Dominions to make laws having extra-territorial application. The presumption
    against the extra-territorial application of the criminal law is codified in s.
    6(2) of the
Criminal Code,
R.S.C. 1985, c. C-46
;
    see also
R. v. Hape
, 2007 SCC 26,
[2007] 2 S.C.R.
    292
;
Libman v. The Queen
, [1985] 2 S.C.R. 178.

[9]
See the examples discussed in Hugh M. Kindred & Phillip M. Saunders, eds.,
International
    Law, Chiefly as Interpreted and Applied in Canada
, 7th ed. (Toronto: Edmond
    Montgomery Publications, 2006) at pp. 567-68. See, also, for example, offences
    committed by Canadian military personnel and other persons subject to the Code
    of Service Discipline
National Defence Act
, R.S.C. 1985, c. N-5, as
    amended, ss. 67, 130 and 132; any indictable offence committed by a Canadian
    federal public servant
Criminal Code
, s. 7(4); any indictable offence
    committed on or in respect of Canadian aircraft
Criminal Code
, s.
    7(1)(a); any indictable offence committed on an aircraft in flight where the
    aircraft lands in Canada
Criminal Code
, s. 7(1)(b); various offences
    pertaining to Canadas exclusive economic zone or continental shelf
Criminal
    Code
, s. 477.1(a) and (b);
Canadian Environmental Protection Act
,
    S.C. 1999, c. 33, s. 271.1;
Migratory Birds Convention Act, 1994
, S.C.
    1994, c. 22, s. 18.3; offences committed in the course of hot pursuit from
    Canada
Criminal Code
, s. 477.1(d); any offence committed by a Canadian
    citizen which is outside the territory of any state
Criminal Code
, s.
    477.1(e); immigration offences
Immigration and Refugee Protection Act
,
    S.C. 2001, c. 27, s. 135; citizens who commit high treason or treason outside
    of Canada
Criminal Code
, s. 46(3); piracy
Criminal Code
, ss.
    74 and 75; forgery or fraud in relation to Canadian passports
Criminal
    Code
, s. 57; fraudulent use of Canadian citizenship certificate
Criminal
    Code
, s. 58; various offences involving cultural property
Cultural
    Property Export and Import Act
, R.S.C. 1985, c. C-51, s. 36.1(3); bigamy
Criminal
    Code
, s. 290; hijacking or endangering the safety of an aircraft or airport

Criminal Code
, s. 7(2); seizing control, or endangering the safety of,
    a ship or fixed platform at sea
Criminal Code
, s. 7(2.1) and (2.2); hostage
    taking
Criminal Code
, s. 7(3.1); terrorism
Criminal Code
, s.
    7(3.73), (3.74) and (3.75); various offences involving explosive or other
    lethal devices
Criminal Code
, s. 7(3.72); various offences involving
    chemical weapons
Chemical Weapons Convention Implementation Act
, S.C.
    1995, c. 25, s. 22; torture
Criminal Code
, s. 7(3.7); genocide, crimes
    against humanity and war crimes
Crimes Against Humanity and War Crimes Act
,
    S.C. 2000, c. 24, ss. 6 and 8; breach of command responsibility in relation to
    genocide, a crime against humanity or a war crime
Crimes Against Humanity
    and War Crimes Act
, ss. 7 and 8.