Citizenship – and nothing more – guarantees the right to vote, say two disenfranchised Canadian expatriates whose legal struggle to reclaim their votes is headed to the Supreme Court of Canada in a case affecting more than one million non-resident Canadians. Gillian Frank, a Toronto native, and Jamie Duong, a Montreal native, wanted to vote in the 2011 general election but, since both work at U.S. universities, were refused online ballots under a 1993 Canada Elections Act rule that bars citizens from voting if they’ve lived outside Canada for more than five years. The rule was loosely enforced until 2007, when the then-Conservative government said expats’ short-term visits back home no longer reset the five-year clock, as had been the practice.
Frank and Duong, who maintain close ties to Canada through family and other interests, took the federal government to court in 2014 and had the law struck down for violating Section 3 of the Charter of Rights, which states: “Every citizen of Canada has the right to vote.”
The decision, however, was overturned by the Ontario Court of Appeal in June 2015, again preventing the pair from casting ballots in last fall’s election. The appellate court found the Section 3 violation was saved by Section 1 of the Charter, which guarantees rights and freedoms, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The majority on the court reasoned that “the electorate submits to the laws because it has had a voice in making them. This is the social contract that gives the laws their legitimacy.” The dispute is to go before the Supreme Court in February.