The firm’s Shaun O’Brien and Amanda Darrach have taken up the case 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 from February 3-5th, 2014.
Their application is 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 Application asserts that:
- The provisions of the Canada Elections Act that prohibit citizens living abroad for five years or more violate section 3 of the Canadian Charter of Rights and Freedoms, which protects the constitutional right of citizens to vote;
- The violation of section 3 is not justified under section 1 of the Charter as there is no pressing and substantial objective achieved by barring Canadians living abroad from voting. Instead, the prohibition impedes the civic participation of those who are well connected to Canada and wish to participate in our democratic process.
- The violation of section 3 of the Charter is not justified under section 1 as it is not a minimal impairment of this fundamental right. There is no need for an arbitrary five-year limit.
- The restriction on voting rights is more harmful than beneficial as the impact of refusing a citizen's participation in the democratic process cannot be trumped by any purported benefit flowing from prohibiting overseas voting.
- Accordingly, the provisions in the Canada Elections Act are unconstitutional and should be declared invalid by the court. There should be no prohibition which impedes Canadians living abroad from exercising their constitutional right to vote.
For further information about this case, contact Shaun O’Brien. You can view the supporting affidavits and facta as well as media coverage at www.cavalluzzo.com/canadiansvotingabroad.
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 416-964-5522 ext. 5527.