Frank et al. v. The Attorney General of Canada

[Indexed as: Frank v. Canada (Attorney General)]

Ontario Reports

Court of Appeal for Ontario,

Sharpe J.A. (in Chambers)

June 23, 2014

120 O.R. (3d) 732 | 2014 ONCA 485

Case Summary

Charter of Rights and Freedoms — Democratic rights — Voting — Application judge finding that provisions of Canada Elections Act which prohibit Canadian citizens who have been non-resident in Canada for five years or more from voting in federal elections unjustifiably violate s. 3 of Charter — Application judge declaring provisions to be of no [page733] force or effect — Attorney General moving unsuccessfully to stay declaration pending appeal — Appeal raising arguable issues — Both sides demonstrating similar risk of irreparable harm — Balance of convenience favouring refusal of stay — Canadian Charter of Rights and Freedoms, s. 3 — Canada Elections Act, S.C. 2000, c. 9.

The applicants successfully attacked the constitutionality of provisions of the Canada Elections Act which prohibit (with certain exceptions) Canadian citizens who have not been resident in Canada for five years or more from voting in federal elections. The application judge found that the provisions unjustifiably violate the right to vote guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms and declared them to be of no force or effect. After the judgment was handed down, four federal by-elections were called. The Attorney General appealed, and moved for a stay of the judgment pending appeal.

Held, the motion should be dismissed.

The appeal raised arguable issues. The Attorney General does not have a presumptive or automatic right to a stay in every case where a court of first instance has ruled legislation to be unconstitutional. The risk of irreparable harm if an election were decided by a single vote of a non-resident voter who was ultimately found on appeal not to have the right to vote was matched by the risk of irreparable harm to improperly disenfranchised non-resident voters whose vote could have changed the result of the election. The balance of convenience favoured refusal of a stay. This was not a case where a complex statutory scheme or administrative apparatus had to be dismantled or constructed in order to give effect to the trial judgment. Elections Canada had already taken the steps required to permit non-resident citizens to vote. Moreover, the trial judgment did not create a legislative void in an area of activity that needed to be regulated in the public interest. The Act already grants many non-resident citizens the right to vote. The judgment under appeal merely extended that right to a broader class of non-resident citizens.

Bedford v. Canada (Attorney General), [2010] O.J. No. 5155, 2010 ONCA 814, 271 O.A.C. 155, 330 D.L.R. (4th) 162, 265 C.C.C. (3d) 390, distd

Other cases referred to

RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, J.E. 94-423, 60 Q.A.C. 241, 54 C.P.R. (3d) 114, 46 A.C.W.S. (3d) 40; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, [2002] S.C.J. No. 66, 2002 SCC 68, 218 D.L.R. (4th) 577, 294 N.R. 1, J.E. 2002-1974, 168 C.C.C. (3d) 449, 5 C.R. (6th) 203, 98 C.R.R. (2d) 1, REJB 2002-35062, 55 W.C.B. (2d) 21, 117 A.C.W.S. (3d) 553; Sauvé v. Canada (Chief Electoral Officer), 1997 CanLII 5086 (FCA), [1997] F.C.J. No. 629, [1997] 3 F.C. 643, 71 A.C.W.S. (3d) 1024 (C.A.), affg 1997 CanLII 5085 (FC), [1997] F.C.J. No. 594, [1997] 3 F.C. 628, 132 F.T.R. 250, 71 A.C.W.S. (3d) 217 (T.D.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 264]

Statutes referred to

Canada Elections Act, S.C. 2000, c. 9 [as am.], s. 11 [as am.], (d)

Canadian Charter of Rights and Freedoms, ss. 1, 3

MOTION for a stay of the judgment of Penny J. (2014), 2014 ONSC 907, 119 O.R. (3d) 662, [2014] O.J. No. 2098 (S.C.J.). [page734]

Peter Southey, Gail Sinclair and Peter Hajecek, for applicant Attorney General of Canada.

Shaun O'Brien and Amanda Darrach, for respondents Gillian Frank and Jamie Duong.

[1] SHARPE J.A. (in Chambers): — The Attorney General of Canada moves for a stay pending appeal of a judgment holding that provisions of the Canada Elections Act, S.C. 2000, c. 9 (the "Act") relating to the voting rights of non-resident Canadians are too restrictive and extending the vote to all Canadian citizens resident outside Canada.

The Charter Challenge to Limits on Voting by Non-Residents

[2] Voting by non-resident citizens has been a feature of Canadian elections, in one form or another, since the vote was extended to soldiers in World War I. The current regime dates from 1993. The Act, s. 11 provides that the following classes of citizens are eligible to vote by mail pursuant to a special procedure found in s. 11 of the Act:

(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.

[3] The s. 11 procedure allows the non-resident citizen to register and vote by mail in a riding chosen by the voter based on contacts specified in the Act.

[4] The applicants, both resident in the United States for more than five years, challenged the denial of the vote to non-resident citizens absent from Canada for more than five consecutive years.

The Judgment under Appeal

[5] In a lengthy and carefully considered judgment, the application judge held that to the extent the Act disenfranchised citizens absent from Canada for more than five years, it violated [page735] their democratic right to vote right guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms:

3. 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

[6] The application judge struck down s. 11(d) of the Act and related provisions and replaced the words of s. 11(d) with "an elector who resides outside of Canada".

[7] The Attorney General argued that Parliament had a pressing and substantial objective to limit non-resident voting pursuant to s. 1 of the Charter, namely,

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

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

[8] The application judge characterized those objectives as being so abstract, broad and symbolic that they barely qualified, if at all, as pressing and substantial for purposes of s. 1 analysis. However, the application judge proceeded to consider whether the limitation on non-resident citizen voting satisfied the proportionality test. He concluded that it did not. First, he found there was no rational connection between the objectives of fairness and avoiding possible election abuses and denying the vote to certain non-residents. Second, he found the five-year limitation overly drastic and that less restrictive means were available to achieve the same objectives. Finally, the application judge found that the substantial deleterious effect of losing the right to vote outweighed what he found to be the tenuous salutary impact of the law.

[9] The application judge refused to stay or temporarily suspend the declaration of invalidity. He stated, at para. 159: "An immediate declaration of invalidity would create no danger to the public or to the rule of law. Nor is this a situation where Parliament will be unable to hold an election due to the court's decision." He added that there was no evidence that an election was anticipated in the next 12 months.

Events Following the Judgment

[10] The judgment was handed down on May 2, 2014. On May 11, 2014, four federal by-elections were called for June 30, 2014 -- two in Ontario and two in Alberta. Elections Canada [page736] immediately announced that the judgment would be complied with for all four by-elections and implemented the steps necessary to enable all Canadian citizens resident abroad to register and vote. As of June 16, 2014, 13 non-resident citizens registered to vote (although it is not known how many of those would have been eligible under the prior regime). One of those individuals is the wife of one of the applicants who has already cast her ballot.

The Attorney General's Stay Motion

[11] I note that Elections Canada was not served with this motion. In my view, it should have been served as it would be immediately and directly impacted by the effect of a stay. I allowed the motion to proceed as it is apparent from correspondence in the record that Elections Canada is fully aware of this motion and its legal counsel has outlined the steps Elections Canada could take in the event a stay is granted.

[12] It is common ground that to obtain a stay the Attorney General must satisfy the familiar three-part test and show

(1) that there is a serious question to be determined;

(2) that irreparable harm to the public interest will be suffered should the stay not be granted; and

(3) that the balance of convenience and public-interest considerations favour a stay.

Serious Question to be Tried

[13] This appeal will almost certainly be decided on the basis of the s. 1 analysis. I share the application judge's concern that the objectives identified by the Attorney General as being sufficient to justify limiting the right to vote are broad, symbolic and rhetorical. In oral argument, counsel insisted that Parliament's central concern was election fairness. It is not clear to me how denying a citizen the right to vote can be justified on the basis of electoral fairness. The objectives identified by the Attorney General obscure what appears to me to be the real issue, namely, whether the five-year limit on non-resident voting can be justified on the basis that it is necessary to sustain our geographically determined, constituency-based system of representation. As the Supreme Court of Canada observed in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, [2002] S.C.J. No. 66, the prisoner voting case, "[v]ague and symbolic objectives" render proportionality analysis hollow. However, I do not say that the Attorney General has failed to show that the appeal is arguable. While the application judge gave full and fair [page737] consideration of the s. 1 issue, there does appear to be an argument to be made on the other side.

Does the Attorney General Have a Presumptive or Automatic Right to a Stay?

[14] The Attorney General submits that as guardian of the public interest it has something approaching an automatic right to a stay due to a presumption of irreparable harm and that the balance of convenience favours maintaining the "status quo". I am unable to accept that proposition. It is inconsistent with what occurred in the prisoner voting litigation where a stay was refused pending appeal: Sauvé v. Canada (Chief Electoral Officer), 1997 CanLII 5085 (FC), [1997] F.C.J. No. 594, [1997] 3 F.C. 628 (T.D.), affd 1997 CanLII 5086 (FCA), [1997] F.C.J. No. 629, [1997] 3 F.C. 643 (C.A.), leave to appeal to S.C.C. dismissed [1997] S.C.C.A. No. 264. It is also inconsistent with the general principle that the decision to grant or withhold a stay lies in the discretion of the court.

[15] The Attorney General relies on the following passage from Bedford v. Canada (Attorney General), [2010] O.J. No. 5155, 2010 ONCA 814, 330 D.L.R. (4th) 162, at para. 13:

. . . I must determine whether a stay should be granted in a context where (1) there is a prima facie right of the government to a full review of the first-level decision; (2) the government has a presumption of irreparable harm if the judgment is not stayed pending that review; and (3) the responding parties must demonstrate that suspension of the legislation would provide a public benefit to tip the public interest component of the balance of convenience in their favour.

[16] In my view, that passage must be read in its proper context, and when so read, it is apparent that a court will only grant a stay at the suit of the Attorney General where it is satisfied, after careful review of the facts and circumstances of the case, that the public interest and the interests of justice warrant a stay. In that case, the government filed a substantial volume of evidence to demonstrate the very real and tangible harm that would result if the matter of prostitution were left completely unregulated. It is clear from reading the reasons as a whole that Rosenberg J.A. only granted a stay in because, after reviewing and weighing that body of evidence, he was (at para. 72) "satisfied that the moving party ha[d] satisfied irreparable harm test".

[17] It is the case that very often, the public interest in the orderly administration of the law will tilt the balance of convenience in favour of maintaining impugned legislation pending the final determination of its validity on appeal: See, for example, RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, at p. 346 S.C.R.: [page738]

In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

[18] However, I cannot agree with the Attorney General that there is a presumption approaching an automatic right to a stay in every case where a court of first instance has ruled legislation to be unconstitutional. As Lamer J. also held in RJR-MacDonald, at p. 343 S.C.R., that "the government does not have a monopoly on the public interest". See, also, Bedford, at para. 73: "The Attorney General does not have a monopoly on the public interest, and it is open to both parties to rely upon the considerations of public interest, including the concerns of identifiable groups."

[19] In my view, it is necessary to carefully review the particular facts and circumstances of this case in order to determine whether or not a stay is warranted.

Irreparable Harm

[20] Turning to the specifics of this case, the Attorney General argues that irreparable harm would ensue if a close election were decided by the single vote of a non-resident voter ultimately found on appeal not to have the right to vote. I agree that such a scenario would amount to irreparable harm.

[21] However, elections decided by a very few votes are rare and, in my view, the prospect of irreparable harm on that account is fairly remote.

[22] More important, the class of non-resident voters affected by the judgment face precisely the same risk of irreparable harm. 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.

[23] I conclude that any risk if irreparable harm claimed by the Attorney General is matched by the same risk of irreparable harm to non-resident voters. [page739]

[24] Nor do I see merit in the argument that Members of Parliament elected in an election governed by the judgment would somehow be different in any material way from those previously elected. All Members of Parliament are elected according to the law as it stands at the time of the election. There is no air of reality to the claim that Members of Parliament elected at by-election under a changed or amended law would be seen as different from their parliamentary colleagues elected under the earlier law.

[25] In my view, the consideration of irreparable harm is neutral and does not favour granting a stay.

Balance of Convenience

[26] In my view, the balance of convenience in this case favours refusal of a stay. I reach that conclusion for the following reasons.

[27] First, this is not the typical case where a complex statutory scheme or administrative apparatus has to be dismantled or constructed in order to give effect to the trial judgment. In such cases, the balance of convenience will typically favour a stay to avoid the cost and disruption that would flow from implementing a new regime based upon a trial judgment that may need to be undone in the event of a successful appeal.

[28] In the present case, Elections Canada immediately took the minimal administrative steps required to permit non-resident citizens to vote in accordance with the decision of the application judge. If a stay is granted, Elections Canada will have to undo what it has already done. It is clear from the record that it may not be possible for Elections Canada to determine in time for the by-elections which non-resident voters who registered after the judgment would have been eligible before the judgment. The terms of the stay requested by the Attorney General recognize that difficulty and ask for a qualified stay that applies "unless Elections Canada is unable to determine" if those who registered meet the prejudgment requirements. In addition, at least one non-resident has cast her ballot. To grant a stay in this case would require Elections Canada to rescind the registrations of up to 13 non-resident electors and claw back the vote of a citizen who may well in the end have the right to cast her ballot. Granting a stay in this case would not avoid the cost and inconvenience of prematurely erecting or dismantling a scheme -- it would do the opposite.

[29] Second, this is not a case like Bedford, where the trial judgment creates a legislative void in an area of activity that needs to be regulated in the public interest. Allowing the [page740] judgment to operate does not create a void or gap in Canada's election law. Nor does the judgment radically alter the class of those eligible to vote. The Act already grants many non-resident citizens the right to vote. The judgment under appeal merely extends the right to a broader class of non-resident citizens.

[30] As counsel for the applicants pointed out, it is highly unlikely that the judgment will produce a floodgate of votes from disinterested and disengaged non-resident Canadians. We know that the number of newly qualified non-resident voters who had registered as of June 16 is 13 or fewer. The non-resident must be both determined and informed. He or she must first register and then obtain a ballot. The non-resident voter cannot vote by simply marking an X beside one of the listed candidates but must complete a special ballot that requires the voter to know and write in the name of an actual candidate.

[31] I conclude that the balance of convenience does not favour granting a stay in this case.

Conclusion

[32] For these reasons, I conclude that while there is an arguable appeal, both sides demonstrate a similar risk of irreparable harm and the balance of convenience weighs in favour of refusing a stay. Accordingly, I dismiss the Attorney General's motion.

[33] If the parties are not able agree as to the costs of this motion, I will receive brief written submissions from the respondents within ten days of the release of these reasons and from the Attorney General within five days thereafter.

Motion dismissed.

End of Document