SCOC set to rule on voting rights for longterm ex­pat Cana­di­ans

The Sun Times (Owen Sound) - - 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 in­ter­est­ing is that the Con­sti­tu­tion sets no lim­its on cit­i­zen’s voting rights, so does that mean leg­is­la­tures get to im­pose one?” Toron­to­based 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 five-year 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.

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