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Update - April 14, 2016
The Supreme Court of Canada announced today that it will hear Dr. Frank and Mr. Duong's appeal from the decision of the Ontario Court of Appeal. No date has been set for the hearing: the appeal will most likely take place in the first half of 2017.
Updates - July 21, 2015
In a split decision, the Ontario Court of Appeal has overturned the Superior Court ruling that the rule prohibiting Canadians who have lived abroad for more than 5 years from voting is unconstitutional. Justices Strathy and Brown ruled that while the restriction was unconstitutional, it is a reasonable limit on the constitutional right to vote. Justice Laskin dissented, holding that the restriction was not justified.
The applicants, Dr. Gillian Frank and Jamie Duong, who are represented by Shaun O'Brien and Amanda Darrach of Cavalluzzo Shilton McIntyre Cornish LLP, are disappointed by the ruling and intend to seek leave to appeal to the Supreme Court of Canada. Any updates will be posted on this page.
Please find the ruling here.
For news coverage of the decision, please see:
If you would like to make a donation to assist with the costs of this case please send a cheque payable to Cavalluzzo Shilton McIntyre & Cornish in Trust with the subject line "Canadians Voting Abroad".
If you would like to make a donation via credit card or wire transfer please contact Helen Whatmough at 416.964.5527.
Cavalluzzo lawyers have successfully challenged limitations on the right to vote for Canadians living outside the country for five years or more. As a result of the court decision, effective immediately and for the first time, these Canadian citizens may vote in Canadian federal elections from outside Canada. The court recognized that this decision impacts well over a million Canadians living abroad.
The firm's Shaun O'Brien, with assistance from Amanda Darrach and articling student Emily Dixon, argued the case on behalf of two Canadians who live in the United States and are challenging a law that prevents Canadians living outside the country from voting from outside Canada after five years away.
The two Canadians are Gillian Frank, 33, an academic living in Brooklyn, N.Y., and Jamie Duong, 28, an IT professional living in Ithaca, N.Y. Both were born in Canada. They state in affidavits that they have been unable to find employment in Canada but that they have strong ties to Canada and intend to return to this country. Both discovered that they could not vote in a Canadian election from their homes when they attempted to do so during the May 2, 2011 federal election.
The Canada Elections Act requires the Chief Electoral Officer to maintain a register of electors who are temporarily resident outside Canada. However, this register is limited to electors who have been residing outside of Canada for less than five consecutive years.
Their challenge, under the Canadian Charter of Rights and Freedoms, was heard in the Superior Court of Ontario before Justice Penny in February of 2014.
The application was supported by affidavits from Jean-Pierre Kingsley, Canada*s former Chief Electoral Officer who recommended such a change to Parliament in 2005, and Don De Voretz, professor emeritus of Simon Fraser University, who has researched the subject and says that there are 2.8 million Canadian living abroad. The number is *akin to a Candian province,* he states in his affidavit.
In a decision dated May 2, 2014, the court found that the legislative provisions violated the right to vote protected by s. 3 of the Charter and could not be saved by s. 1 of the Charter. The court recognized that this decision impacts well over a million Canadians living abroad.
Please click for the following. You may need Adobe Acrobat Reader to access these documents.
- Court of Appeal decision on Stay Motion dated June 23, 2014
- Attorney General's Notice of Motion filed June 2, 2014
- Attorney General's Notice of Appeal filed June 2, 2014
- Decision of the Ontario Superior Court Renders Expat Voting Laws Unconstitutional.
- Factum of the Applicants, Gillian Frank and Jamie Duong
- Factum of the Intervenor, BCCLA
- Factum of the Intervener, CCLA
- CEO-Frank - Factum of theIntervenor, The Chief Electoral Officer
- Factum of the Respondents
- Factum of the Appellant, the Attorney General of Canada
- Reply Factum of the Applicants, Gillian Frank and Jamie Duong
- Factum of the Respondent, the Attorney General of Canada
- Sur-Reply Factum of the Respondent, the Attorney General of Canada
- Notice of Application
- Affidavit of
Dr. Gillian Frank
- Affidavit of Jamie Duong
- Affidavit of Don De Voretz
- Affidavit of Jean-Pierre Kingsley
- Reply Affidavit of Don De Voretz
- Reply Affidavit of Jean-Pierre Kingsley
News and Events
(June 24, 2014)
By decision of Mr. Justice Sharpe dated June 23, 2014, the Ontario Court of Appeal has found that the Government is not entitled to a stay pending its appeal of the decision of Mr. Justice Penny.
As a result of this decision, Canadian citizens who have been outside the country for more than five years may cast their ballots in the four upcoming federal by-elections to be held on June 30.
On June 2, 2014, the Attorney General filed its notice to appeal the decision of Mr. Justice Penny. In that decision, Mr. Justice Penny found that the legislative provisions violated the right to vote protected by s. 3 of the Charter and could not be saved by s. 1 of the Charter.
The Government also filed a motion to stay the application of Justice Penny's decision, pending completion of the appeal process. They argued that the implementation of Mr. Justice Penny's decision could cause irreparable harm to Canada's electoral system because it could create unfairness to resident voters. The Court of Appeal disagreed. Mr. Justice Sharpe wrote: "It is not clear to me how denying a citizen the right to vote can be justified on the basis of electoral fairness." He also recognized that, given the small number of registered non-resident voters, the prospect of causing irreparable harm by allowing those who want to cast a ballot to do so was "fairly remote."
Mr. Justice Sharpe also observed that, if a stay were granted, it could cause irreparable harm both to non-resident voters and to the public. He wrote: "Once the election has passed, the constitutional right to vote in that election will be lost forever. If the election is decided by one or a very few votes and if the judgment is affirmed on appeal, the stay requested by the Attorney General will have improperly disenfranchised voters whose vote could have changed the result of the election. That would constitute irreparable harm to the non-resident voters and to the public." The judge went on to find that the balance of convenience weighs in favour of refusing the stay.
Update May 2014
By decision of Mr. Justice Penny dated May 2, 2014, the court found that the legislative provisions violated the right to vote protected by s. 3 of the Charter and could not be saved by s. 1 of the Charter.
Justice Penny said that s. 3 clearly contains no limits on the right to vote other than citizenship. Moreover, non-resident Canadians visit their home frequently and intend to return. They can and do live with the consequences of Parliament's decisions. Five years is an overly stringent limitation. If the fact of being a citizen is not considered sufficient to sustain a connection to Canada, the act of voting itself is evidence of this connection. Justice Penny recognized the serious impact of the voting limitations on non-resident Canadians, affirming that the laws deprive expats who maintain strong ties to and care deeply about Canada from having a voice in Canada's political life.
As a result of the court decision, effective immediately and for the first time, these Canadian citizens outside the country for five years or more may vote in Canadian federal elections from outside Canada.
Update, January 8, 2015
The Attorney General's appeal of the Ontario Superior Court's decision to allow Canadian citizens who have been outside the country for more than five years to vote in federal elections was heard on January 6 and 7, 2015. The Court heard argument from the Attorney General, Shaun O'Brien on behalf of Mr. Frank and Mr. Duong, and counsel for intervenors the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association and the Chief Electoral Officer of Canada. Justices Strathy, Laskin and Brown reserved their decision.
For media coverage of the appeal, please see the following:
"Feds Fight to Deny Long-Term Expats Right to Vote"
"Feds in Court Tuesday Fighting Against Long Term Expats Right to Vote"