SC of Canada | Provisions infringing “Right to Vote” of temporary citizens unconstitutional

Supreme Court of Canada: The appeal was before Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ.

The combined effect of Sections 11(d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more, the right to vote in a federal election unless and until they resume residence in Canada.

The constitutionality of these provisions was challenged by two non-resident Canadian citizens, who applied for a declaration that their right to vote entrenched in Section 3 of the Canadian Charter of Rights and Freedoms was infringed and that the impugned provisions were unconstitutional.

The application judge agreed, found that the impugned provisions could not be saved under Section 1 of the Charter, and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal.

However, the Supreme Court allowed the instant appeal and Sections 222(1)(b) and (c), 223(1)(f) and 226(f) of the Canada Elections Act were declared to be invalid. [Gillian Frank v. Canada (Attorney General), 2019 SCC OnLine Can SC 1, decided on 11-01-2019]

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