Supreme Court set to rule on vot­ing rights for long-term ex­pat Cana­di­ans

North Bay Nugget - - NATIONAL NEWS - Colin perkel

toronto — Long-term Cana­dian ex­pats are set to find out on Fri­day whether a now-re­pealed 25-year-old law bar­ring them from vot­ing in fed­eral elec­tions was con­sti­tu­tional.

the pend­ing de­ci­sion by the Supreme Court of Canada should set­tle a le­gal bat­tle be­gun in earnest dur­ing the for­mer Con­ser­va­tive gov­ern­ment of then-prime min­is­ter Stephen harper, and which gained promi­nence in the elec­tion that brought the Lib­er­als un­der Justin trudeau to of­fice.

ob­servers said they would be watch­ing to see whether the coun­try’s top court might jus­tify lim­its on a con­sti­tu­tion­ally guar­an­teed right that po­ten­tially af­fects more than one-mil­lion Cana­di­ans who live abroad.

“What makes this case so in­ter­estingis that the con­sti­tu­tion sets no lim­its on cit­i­zen’ s vot­ing rights, so does that mean leg­is­la­tures get to im­pose one?” toronto-based lawyer an­drew Bern­stein said on thurs­day. “do the rea­sons why some­one has moved make a dif­fer­ence? how strict will the court be when the gov­ern­ment seeks to jus­tify an in­fringe­ment?”

While the Con­sti­tu­tion guar­an­tees all Cana­dian cit­i­zens the right to vote, Cana­di­ans who have lived abroad for five years or more lost that right un­der pro­vi­sions of the Canada elec­tions act en­acted in 1993. how­ever, it was only un­der harper that elec­tions Canada be­gan en­forc­ing the pro­vi­sions more strictly, prompt­ing the court bat­tle.

two long-time ex­pats liv­ing and work­ing in the united States launched the char­ter chal­lenge after they were de­nied the right to vote in the 2011 fed­eral elec­tion.

es­sen­tially, Jamie duong, of ithaca, n.y., and gill Frank, 40, an aca­demic liv­ing in rich­mond, Va., ar­gued noth­ing war­ranted the abridg­ment of their con­sti­tu­tional right to vote. they in­sisted they main­tain deep ties to Canada, and taxes and other laws passed by Par­lia­ment could still af­fect them.

in 2015, the cam­paign­ing Lib­er­als promised a re­view and the trudeau gov­ern­ment, which faces an elec­tion cam­paign in oc­to­ber, in­tro­duced leg­is­la­tion in novem­ber 2016 to ex­tend the fran­chise to all Cana­di­ans abroad. While that leg­is­la­tion never pro­ceeded, the gov­ern­ment did pass elec­toral re­form leg­is­la­tion last month that did away with the fiveyear pro­vi­sion.

the is­sue, Frank has said, is that vot­ing rights should not be “sub­ject to the po­lit­i­cal whims of Par­lia­ment.”

the case, which gar­nered at­ten­tion from civil lib­er­ties groups, ini­tially went in favour of duong and Frank when an on­tario Su­pe­rior Court jus­tice sided with them in 2014. how­ever, the fed­eral gov­ern­ment ap­pealed and in a split de­ci­sion in 2015, the on­tario Court of ap­peal over­turned the ear­lier rul­ing, pav­ing the way for the cur­rent Supreme Court tus­sle.

While the ap­peal Court agreed the law in­fringed on the rights of cit­i­zens, the ma­jor­ity found the in­fringe­ment was jus­ti­fied in a democ­racy be­cause the rules pre­serve the “so­cial con­tract” be­tween vot­ers and law­mak­ers.

in ar­gu­ments be­fore the Supreme Court, the gov­ern­ment noted al­most all Cana­di­ans liv­ing abroad were barred from vot­ing be­fore the 1993 law changes. ot­tawa also ar­gued the five-year rule was a pol­icy de­ci­sion that aimed to main­tain the fair­ness of the demo­cratic sys­tem given that long-term non-res­i­dents have “dif­fer­ent and less oner­ous re­spon­si­bil­i­ties” un­der Cana­dian law.

the ex­pats re­sponded by call­ing the five-year thresh­old an ar­bi­trary marker that did not take into ac­count their on­go­ing con­nec­tion to Canada.

in the 2015 elec­tion, celebri­ties such as don­ald Suther­land, Cana­dian busi­ness groups abroad and other ex­pats ral­lied against harper and the ex­pat vot­ing ban.

Matt kwong

Gill Frank is seen in this 2015 hand­out photo taken in New York City. Frank and fel­low ex­pat Cana­dian Jamie Duong chal­lenged laws bar­ring who have lived abroad for more than five years from vot­ing in fed­eral elec­tions.

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