Derecho Constitucional / Constitucional Law

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Canada Supreme Court allows non-resident citizens to vote    

Source: Jurist

January 11, 2019

The Supreme Court of Canada on Friday struck down a restrictive law that prevented Canadian citizens living outside the country from casting ballots in national elections.

The question before the court revolved around a section of the Canada Elections Act that stated that citizens of Canada have the right to vote as long as they have “been absent from Canada for less than five consecutive years.” This section of the law had the effect of disenfranchising more than a million and a half Canadian citizens who lived outside the country for five or more years, including Gillian Frank and Jamie Duong, two Canadian citizens who teach at universities in the US. The two sued the Canadian government after being barred from voting in the election of 2011, alleging that the five-year limitation was “arbitrary” and blocking their right to vote was unconstitutional. The Canadian government argued that the limitation of voting rights was justified under Section 1 of the Canadian Charter, which allows for constitutional rights to be curtailed in a “reasonable” and “minimally impairing” manner if there is a strong policy reason for doing so.

In its 5-2 decision, the Supreme Court of Canada agreed with Frank and Duong. In the judgment, Chief Justice Richard Wagner stated that the government’s invocation of Section 1 of the Charter “must be carefully scrutinized and cannot be tolerated without a compelling justification.” Without a clear and reasonable policy reason for limiting the rights of non-resident citizens, the court felt that the government’s use of Section 1 to justify the five-year residency limitation on the right to vote of the Charter was improper. “Voting is the cornerstone of our democracy,” Wagner stated, going on to write that “denial of the fundamental right to vote, in and of itself, inflicts harm on affected citizens.” The two dissenting judges stated, however, that the five-year limitation was justifiable, writing that “a five-year time period falls within the range of reasonable options that were open to Parliament, and it is not this Court’s prerogative, let alone within this Court’s expertise, to second-guess the precise location at which Parliament chose to draw the line” in their dissent.

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