Frank: A Departure from Figueroa

In March, the Supreme Court of Canada heard an appeal of the Ontario Court of Appeal’s decision in Frank v Canada. In Frank, a majority of the Ontario Court of Appeal upheld the constitutionality of federal legislation that denies the right to vote in federal elections to Canadians who have not been resident in Canada for more than five years. The majority held that ex patriate Canadians could be denied the right to vote because “longer-term non-resident” Canadians had “voluntarily withdrawn from the social contract” with Canada and had submitted themselves to another political and legal order.[1] 

The Ontario Court of Appeal’s decision follows the Supreme Court’s 2003 decision in Figueroa v. Canada, where the court struck down legislation that imposed requirements on political parties seeking to register candidates for federal elections. In this article, I argue the Ontario Court of Appeal’s decision is inconsistent with the Supreme Court’s holding in Figueroa.

Figueroa

Figueroa considered the constitutionality of provisions of the Canada Elections Act, R.S.C., c. E-2, which operated to deny certain benefits to non-registered political parties, which benefits were available to registered parties. The impugned legislation required political parties to nominate candidates in at least 50 electoral districts in each general election in order to be registered. Mr. Figueroa was a member of the Communist Party of Canada, which failed to satisfy the requirement. Communist Party candidates were ineligible to have the party name listed on the ballot and they were ineligible to issue tax receipts for donations outside the election period, among other things. 

Mr. Figueroa challenged the law on the basis that it violated s. 3, which provides “[e]very 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.”

In its decision, the majority struck down the registration requirements. It explained that the right to vote could not be qualified by other democratic concerns, such as the maintenance of the party system. In particular, it rejected the minority’s conclusion that “collective concerns” could qualify the right to vote:  

I cannot agree … that it is proper, at this stage of the analysis, to balance the right of each citizen to play a meaningful role in the electoral process against other democratic values, such as the aggregation of political preferences.

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As this suggests, I do not believe that the right to play a meaningful role in the electoral process is a "qualified" right, in the same sense as the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (s. 7) or the right to be secure against unreasonable search and seizure (s. 8). It should be noted that the language of s. 7 and s. 8 contains balancing language within the provisions themselves.[2]

Frank

In Frank, the Ontario Court of Appeal appears to have justified an infringement of the right to vote by doing what the majority in Figueroa cautioned against.  

In particular, the majority in Frank elevated to constitutional, protected status, its interpretation of social contract theory, which it said was embedded in the Charter. Quoting the majority in Sauve #2, it decided there was a vital, symbolic, theoretical, and practical connection between having a voice in making the law and being obliged to obey it, and that this connection was inherited from social contract theory, was enshrined in the Charter, and stood at the heart of our system of constitutional democracy. The Court concluded:

I am satisfied that preserving the connection between citizens' obligation to obey the law and their right to elect the lawmakers - strengthening the social contract - is a pressing and substantial objective that justifies the s. 3 Charter infringement.

The Ontario Court of Appeal defined the social contract as being “about reciprocity between civic rights and responsibilities.” It said the social contract is “founded on a mutuality between the franchise and the citizen’s obligation to obey the law – between political rights and political obligations.”[3]

Contrasting Figueroa and Frank

As stated above, the majority in Figueroa determined that not all democratic values should be elevated to protected, constitutional status. It rejected LeBel, J.’s treatment of “collective concerns” as being protected in s. 3 and required evidence and a balancing of benefits and harms to justify the infringement of the right of individual citizens to meaningfully participate in elections. The Ontario Court of Appeal’s conclusion that its understanding of social contract theory is enshrined in the Charter and constitutes a substantial and pressing government objective appears to run afoul of the approach taken by the majority in Figueroa.

There are three other ways in which Frank is inconsistent with Figueroa.

First, while the Ontario Court of Appeal majority appears to have conducted an analysis under s. 1, it required no evidence from the government to show how denying the franchise to ex patriate Canadians strengthened the social contract. The absence of that evidence is incongruous with the Figueroa court’s rejection of “majority-building” as a valid government objective. The Supreme Court accepted that the impugned legislation was intended to promote majority-building, but stated there was no evidence that a majority government was likely to provide substantially better governance than a minority government to justify the substantial, deleterious impact of infringing a citizen’s s. 3 rights. In addition, the Supreme Court said there would have to be very substantial fiscal savings (of which there was no evidence) to justify the denial of citizens’ right to meaningfully participate in elections. In Frank, by contrast, the court required no evidence from the government to show how permitting ex patriate Canadians the franchise would weaken constitutional values.  

Second, the Frank majority failed to consider, in its minimal impairment analysis, whether Canada had considered less intrusive ways for promoting the social contract, other than denying non-residents the franchise. It preferred to answer a different question about whether five years was a reasonable cut-off.[4]  This is inconsistent with what the Court said in Figueroa about minimal impairment:

Where the same objective can be achieved without violating any citizen’s Charter rights, the minimal impairment test of the Oakes test has not been satisfied.[5]

Third, in Figueroa, the Supreme Court majority rejected the government’s proposed objectives due to lack of evidence. Among other findings, it said there was “no basis for concluding that the 50-candidate threshold actually advances the objective of preventing the misuse of the electoral financing regime.”[6] In Frank, the court concluded “the salutary effects of the legislation are the solidification of the bond between the electorate and the elected.”[7] There was no evidence that such a bond would be strengthened by the residency requirement or that the bond was weakened by votes cast by people living abroad. The Ontario Court of Appeal simply accepted the premise that people living abroad had voluntarily withdrawn from the social contract and therefore had not enough at stake to be permitted to cast a ballot. The reasoning appears to be a departure from the analytical approach in Figueroa.

A review of the factums submitted to the Supreme Court of Canada in the Frank appeal reveals many references to Figueroa, primarily to stress the importance of the right to vote and, to a lesser extent, to define the nature of the right to vote. No party or intervenor appears to have explained in any detail that decision’s central holding and approach, emphasizing s. 3 rights as individual rights. A return to Figueroa would involve a higher degree of scrutiny of the government’s assertions about collective concerns than occurred by the majority decision by the Ontario Court of Appeal.

About the author

Saba Ahmad is a civil litigator working primarily on commercial and administrative matters in Toronto. She advises non-profits and charitable organizations and serves as an executive member of the CCLHR section. Saba is licensed to practise law in the Province of Ontario and in the State of New York.