Gillian Frank v. Jamie Duong, 2019 SCC 1

SUPREME COURT OF CANADA Citation: Frank v.

Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3 Appeal Heard: March 21, 2018 Judgement Rendered : January 11, 2019 Docket: 36645 Between: Gillian Frank and Jamie Duong Appellants and Attorney General of Canada Respondent - and - Attorney General of Quebec, Canadian American Bar Association, Canadian Expat Association, David Asper Centre for Constitutional Rights, Canadian Civil Liberties Association, Chinese and Southeast Asian Legal Clinic and British Columbia Civil Liberties Association Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 83) Wagner C.J. (Moldaver, Karakatsanis and Gascon JJ. concurring) Concurring Reasons: (paras. 84 to 110) Rowe J. Joint Dissenting Reasons: (paras. 111 to 173) Côté and Brown JJ.

F rank v. Canada (A ttorney General ), 2019 SCC 1, [2019] 1 S.C.R. 3 Gillian Frank and Jamie Duong Appellants v. Attorney General of Canada Respondent and Attorney General of Quebec, Canadian American Bar Association, Canadian Expat Association, David Asper Centre for Constitutional Rights, Canadian Civil Liberties Association, Chinese and Southeast Asian Legal Clinic and British Columbia Civil Liberties Association Interveners Indexed as: Frank v. Canada ( Attorney General) 2019 SCC 1 File No.: 36645. 2018: March 21; 2019: January 11.

Present: Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Right to vote — Residence — Canada Elections Act denying right to vote in federal elections to Canadian citizens residing abroad for five consecutive years or more — Attorney General of Canada conceding infringement of right to vote — Whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1 , 3 — Canada Elections Act, S.C. 2000, c. 9, ss. 11 (d), 222 .

The combined effect of ss. 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 s. 3 of the Charter was infringed, and that the impugned provisions were unconstitutional.

The application judge agreed, found that the impugned provisions could not be saved under s. 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. Although the Attorney General of Canada conceded that the impugned provisions breach s. 3 of the Charter , the violation of s. 3 was found to be justified. Held (Côté and Brown JJ. dissenting): The appeal should be allowed. Sections 222(1) (

b) and (c), 223(1) (

f) and 226 (

f) of the Canada Elections Act are declared to be of no force or effect; the words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” are struck from s. 11(

d) of the Act and are replaced with the words “an elector who resides outside Canada”; and the word “temporarily” is struck from ss. 220 , 222(1) and 223(1) (

e) of the Act . Per Wagner C.J. and Moldaver, Karakatsanis and Gascon JJ.: As conceded by the Attorney General of Canada, the limit on the voting rights of long-term non-resident citizens breaches s. 3 of the Charter . This limit cannot be justified under s. 1 . In particular, the Attorney General of Canada has failed to show that limiting the voting rights of non-resident citizens is minimally impairing.

Since voting is a fundamental political right, and the right to vote is a core tenet of Canadian democracy, any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification. Intrusions on this core democratic right are to be reviewed on a stringent justification standard. Reviewing courts must examine the proffered justification carefully and rigorously rather than adopting a deferential attitude. Two central criteria must be met for a limit on a Charter right to be justified under s. 1 . First, the objective of the measure must be pressing and substantial.

Second, the means by which the objective is furthered must be proportionate; this requires a rational connection to the objective, minimal impairment of the right, and proportionality between the effects of the measure and the objective. The proportionality inquiry is both normative and contextual, and requires that courts balance the interests of society with those of individuals and groups. The integrity of the justification analysis requires that the legislative objective be properly stated. The relevant objective is that of the infringing measure, not, more broadly, that of the provision.

In this case, the Attorney General of Canada has centrally and consistently asserted that the voting restrictions in question advance the objective of maintaining the fairness of the electoral system to resident Canadians. This is a sufficiently important legislative objective to ground the s. 1 analysis, and it can be a pressing and

substantial concern even if the measures taken to achieve that objective impair the democratic rights of other citizens. This objective is sufficiently precise to continue the justification analysis. The question at the first step of the proportionality inquiry is whether the measure that has been adopted is rationally connected to this objective. In cases where such a causal connection is not scientifically measurable, one can be made out on the basis of reason or logic.

In this case, it must be shown that the infringement of non-residents’ voting rights is rationally connected to the legislative objective of ensuring electoral fairness to resident voters. Here, there is no evidence of the harm that these voting restrictions are meant to address. No complaint has been identified with respect to voting by non-residents, and no evidence has been presented to show how voting by non-residents might compromise the fairness of the electoral system.

Furthermore, it has not been definitively shown that a limit of any duration would be rationally connected to the electoral fairness objective. Overall, however, it is not necessary to come to a firm conclusion on this point in view of the result at the minimal impairment stage. The second component of the proportionality test requires evidence that the measure at issue impairs the right as little as reasonably possible. In this case, the limit on voting by non-residents is not minimally impairing.

There is little to justify the choice of five years as a threshold or to show how it is tailored to respond to a specific problem. As well, the five-year limit is overinclusive. It improperly applies to people to whom it is not intended to apply, and it does so in a manner that is far broader than necessary. While it seeks to bar people from voting who lack a sufficient connection to Canada, no correlation has been shown between, on the one hand, how long a Canadian citizen has lived abroad and, on the other hand, the extent of his or her subjective commitment to Canada.

Many non-resident citizens maintain deep and abiding connections to Canada through family, online media and visits home, and by contributing taxes and collecting social benefits. Likewise, no correlation has been shown between residence and the extent to which citizens are affected by legislation.

Non-resident citizens do live with the consequences of Canadian legislation: they are subject to Canadian legislation during visits home; Canadian laws affect the resident families of non-resident Canadians; some Canadian laws have extraterritorial application; government policies can have global consequences; and Parliament can alter the extent to which Canadian electoral legislation applies to non-resident citizens, which would make the constitutional right to vote subject to shifting policy choices.

At the final stage of the s. 1 analysis, it must be asked whether there is proportionality between the overall effects of the Charter -infringing measure and the legislative objective. In this case, any salutary effects of ensuring electoral fairness are clearly outweighed by the deleterious effects of disenfranchising non-resident Canadians who are abroad for five years or more. The benefits of the impugned legislation are illusory and speculative. It is unclear how the fairness of the electoral system is enhanced when long-term non-resident citizens are denied the right to vote.

The deleterious effects on affected non-resident citizens, on the other hand, are serious. Denial of the right to vote, in and of itself, inflicts harm on affected citizens; proof of additional harm is not required. The disenfranchisement of long-term non-resident citizens not only denies them a fundamental democratic right, but also comes at the expense of their self-worth and their dignity. Per Rowe J.: There is agreement that the appeal should be allowed.

The limit on voting in federal elections for citizens who have not been resident in Canada for five years or more constitutes an unjustified infringement of s. 3 of the Charter . However, any evaluation of this kind of limit should acknowledge the significance and centrality of residence to Canada’s system of representative democracy, and should not foreclose the possibility that residence requirements in another context might be constitutional. Residence is significant because it establishes a connection to a particular electoral district and to the concerns of persons living there.

While this aspect of Canada’s representative democracy is not constitutionally entrenched, residence has been historically and remains today more than just an organizing mechanism. It is foundational to Canada’s electoral system. However, its significance does not elevate residence to an inherent limit on the s. 3 right to vote.

Section 3 protects the right to vote, but it does not follow as a corollary that there is a right to vote in the constituency or province of one’s choosing. The provinces and territories have each crafted residence requirements that reflect the concerns and circumstances that are particular to their jurisdiction. The concession by the Attorney General of Canada that the impugned residence requirements infringe s. 3 does not prejudice provincial or territorial governments in arguing that their legislation does not do so.

Different considerations will apply at the s. 1 analysis of any established or conceded breach of s. 3 at the provincial or territorial level, and evidence of the circumstances relating to the various residence requirements in each of the provinces and territories may well affect the analysis. In this case, promoting electoral fairness for resident Canadians is a pressing and substantial objective, and the impugned measures are rationally connected to this objective.

If the law’s legitimacy derives from the fact that those who are subject to it are the ones who indirectly create it, then it is unfair that individuals who are not subject to or affected by the law can decide for those who are. Long-term non-residents are likely to be less connected to any Canadian community.

Individuals who have not lived in a constituency for over five years are less likely to be informed about the issues affecting that constituency, and long-term non-resident voters who have no intention to return will not feel the impacts of federal laws and policies as they manifest themselves at the local level. Similarly, at the national level, those who have not lived in Canada for a long time are likely to be less connected to Canada and are affected by Canadian law to a far lesser degree than are resident Canadians.

However, the impugned measures ultimately do not withstand s. 1 scrutiny, as the salutary effects of promoting fairness for resident Canadians are outweighed by the deleterious effects of denying long-term non-resident Canadians the right to vote in federal elections. The primary salutary effect of the impugned measures is that long-term non-residents will not cast a decisive vote in a constituency in which they are not resident, and therefore, the local representative will not be selected (in part) by individuals from outside the constituency.

However, this salutary effect has not been shown to be consequential: there is almost no evidence of the impact that long-term non-residents would or could have had either locally or nationally if permitted to vote, and the evidence that exists suggests that the impact would likely be negligible, since a very small number of Canadians living abroad who are currently eligible to vote choose to exercise that right. By contrast, the deleterious effects of the provisions on long-term non-residents are clear: they cannot vote.

While they may not feel the local consequences of particular federal policies in the constituencies in which their votes would be counted, they stand nonetheless to be affected by certain federal laws and policies. Furthermore, the right to vote is not merely instrumental. Denying long-term non-residents the right to vote denies them the opportunity to participate, through their vote, in the formation of policy and the functioning of public institutions.

Per Côté and Brown JJ. (dissenting): The appeal should be dismissed. The non-resident voting restriction represents a reasonable limit on the right to vote under s. 3 of the Charter . The fundamental point of disagreement with the majority lies in the proper judicial approach to the limitations analysis under s. 1 of the Charter . No right is absolute, including Charter rights such as the s. 3 right to vote. However, to speak of an “infringement” based solely on the fact that an impugned measure imposes a limit on a Charter right distorts the s. 1 analysis.

The Charter cannot and should not be read so as to ever allow for justified infringements. The text of s. 1 speaks not of reasonable and demonstrably justifiable infringements, but of reasonable and demonstrably justifiable limits. A reasonable limit is inherent in the right itself, shaping the right’s outer boundaries. A right is infringed only where the right, as reasonably limited, is breached; as such, an “infringement” is a limit that is not justified. A conceptually sensible and textually faithful account of the s. 1 analysis thus properly focuses on whether a limit on a Charter right is justified.

The issue presented by this appeal, then, is not whether the limit to the right to vote effected by the restriction on long-term non-resident voting justifies an infringement of s. 3 , but whether that limit is unreasonable, such that s. 3 is infringed. The first step in the limitations analysis is to identify the objective behind the impugned measure and determine whether it is sufficiently important to justify the limit on a Charter right. Identifying the objective of a rights-limiting measure enacted by a legislature raises the methodological difficulty that the objective may not be immediately apparent.

The difficulty is augmented where the impugned limitation arises by the absence of legislative action. Context — being both the present and past state of the law — is essential to the proper characterization of the objective. However, there should be some circumspection in relying upon parliamentary debates to identify the legislative objective of a provision, as the intent of particular members of Parliament is not the same as the intent of Parliament as a whole.

Here, there is a clear and readily discernable purpose behind the legislative design as a whole: Parliament sought to privilege a relationship of some currency between electors and their communities. This objective is sufficiently pressing and substantial to survive scrutiny under s. 1 . Parliament was quite properly striving to shape the boundaries of the right by enacting legislation governing the terms on which elections are conducted, by drawing a line at citizens who have a current relationship to the community in which they seek to cast a ballot.

Parliament is permitted, within limits, to shape the scope of voting rights under s. 1. While most Charter rights are negative in the sense that they preclude the state from acting in ways that would impair them, the right to vote is a positive entitlement. It requires legislative specification in order for the right to be operative. Limits to the right to vote can be justified, because some specification of the right to vote (whether to account for age, or the currency of relationship between electors and the communities they represent) is necessary.

As well, the Act contains a range of restrictions on voting — including withholding the vote from Canadian citizens who have never before lived in Canada and Canadian citizens under the age of 18 — which are no less the product of principled and unavoidably philosophical reasoning than is the long-term non-resident restriction. The limitations analysis must be flexible enough to account for Parliament’s ability to legislate in pursuit of philosophical, moral or otherwise normative considerations.

The appropriate inquiry in limitations analysis is, therefore, not whether Parliament’s legislative objective rests on such considerations, but whether the objective that it pursues is pressing and substantial. In this case, the restriction at issue is a residence requirement. Residence has been described as a fundamental requirement of the right to vote. While citizenship is a necessary requirement to vote, it is therefore not the only constitutionally permissible limit. Citizenship is a status. It does not itself indicate a relationship of any currency to a particular Canadian community.

Parliament, not unreasonably, deemed residence or recent residence to be indicative of this relationship. The fact that the Act includes certain exceptions to the residence rule supports the notion that a relationship of currency is essential. Preserving a relationship of currency between electors and their communities by limiting long-term non-resident voting ensures reciprocity between exercising the right to vote and bearing the burden of Canadian laws. The reciprocity principle justifies limiting non-resident voting precisely because long-term non-residents are not generally subject to Canadian laws.

It is unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district. Preserving the relationship between electors and their communities through limits on long-term non-resident voting also protects the integrity of the Canadian electoral system, which is founded on geographical representation. The s. 3 voting right is premised upon electors voting for a representative of their community. This regional structure must therefore inform any consideration of the electoral system, and Canadians’ participation therein.

Limiting long-term non- resident voting ensures that the electors residing in a particular constituency, who share a community of interests that is typically derived at least in part from geographical proximity, retain the power to decide for themselves who would best advance those shared interests on their behalf in the House of Commons.

The second question in the limitations analysis asks whether the means that Parliament selected to pursue its objective are proportionate to the rights limitation — i.e., whether the measure is rationally connected to the objective; whether the measure minimally impairs a claimant’s Charter rights; and whether there is proportionality between the effects of the measure and the objective. The inquiry is not to ask what the Court prefers, but whether the limit was one that Parliament could reasonably impose.

This is particularly so in the case of a challenge to Canada’s election laws, in respect of which the Court has previously held that a natural attitude of deference is required. In this case, the means by which Parliament chose to pursue its objective are proportionate. A five-year non- resident cut-off was a reasonable and constitutionally permissible demarcation. The measure is rationally connected to the objective of preserving a relationship of currency between electors and their communities because it logically distinguishes short-term from long-term non-residents.

Five years corresponds to the maximum length of a Parliament, thereby ensuring that all non-residents can vote in at least one election after leaving Canada, and it is sufficiently long to permit students who travel abroad to study to complete their programs without foregoing the ability to vote. The limit is also minimally impairing because, on balance, a five-year time period falls within the range of reasonable options that were open to Parliament and within the range of limits adopted by other internationally respected liberal democracies sharing Canada’s parliamentary framework.

Opening the vote to long-term non-residents would not be an example of progressive enfranchisement; rather, it would be a regressive development, undermining the longstanding and entirely salutary practice in Westminster parliamentary democracies of privileging local connections in deciding who may elect local representatives. In the final balancing, the salutary effects of preserving the integrity of Canada’s geographically based electoral system and upholding a democratically enacted conception of the scope of the right to vote in Canada are significant.

The deleterious effect of denying some citizens the right to vote is not insubstantial, but it is tempered by the fact that the restriction is reversible rather than

permanent, as any adult Canadian citizen can still exercise the right to vote at any point, provided that he or she re-establishes residencein Canada. Thus, the restriction at issue is not a permanent denial of the right to vote. Just like the age requirement, it represents adistinction based on the experiential situation of all citizens in that category; it is not a distinction based on moral worth. The deleteriouseffects of the limit are therefore of less significance, and are outweighed by the salutary effects. Cases Cited Cited by Wagner C.J. Applied: R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103; distinguished: Opitz v. Wrzesnewskyj, 2012 SCC 55,[2012] 3 S.C.R. 76; explained: Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; referred to: Toronto StarNewspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R.912; Haig v. Canada (Chief Electoral Officer), (SCC), [1993] 2 S.C.R. 995; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R.906; Mounted Police Association of Ontario v.

Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; RJR-MacDonald Inc. v.Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Harvey v. New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Thomson Newspapers Co. v. Canada(Attorney General), (SCC), [1998] 1 S.C.R. 877; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3S.C.R. 1016; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009SCC 31, [2009] 2 S.C.R. 295; Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (AttorneyGeneral), 2015 SCC 5, [2015] 1 S.C.R. 331; B.C. Freedom of Information and Privacy Association v. British Columbia (AttorneyGeneral), 2017 SCC 6, [2017] 1 S.C.R. 93; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143;Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527;Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. BigM Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v.

Butler, (SCC), [1992] 1 S.C.R. 452; R. v. Zundel, (SCC), [1992] 2 S.C.R. 731; Storey v. Zazelenchuk (1984), (SK CA), 36 Sask. R. 103; Reference ReYukon Election Residency Requirements (1986), (YK CA), 1 Y.R. 23; Anawak v. Nunavut (Chief Electoral Officer),2008 NUCJ 26, 172 A.C.W.S. (3d) 391. Cited by Rowe J. Distinguished: Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; considered: Reference re YukonElection Residency Requirements (1986), (YK CA), 1 Y.R. 23; referred to: Haig v. Canada (Chief ElectoralOfficer), (SCC), [1993] 2 S.C.R. 995; RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC),[1995] 3 S.C.R. 199; Lavigne v. Ontario Public Service Employees Union, (SCC), [1991] 2 S.C.R. 211; Sauvé v.Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1S.C.R. 912. Cited by Côté and Brown JJ. (dissenting) Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; R. v. Oakes, (SCC), [1986] 1S.C.R. 103; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; Law Society of British Columbia v. Trinity Western University, 2018 SCC32, [2018] 2 S.C.R. 453; Bracken v.

Niagara Parks Police, 2018 ONCA 261, 141 O.R. (3d) 168; R. v. Keegstra, (SCC),[1990] 3 S.C.R. 697; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; R. v. Heywood, (SCC), [1994] 3 S.C.R. 761; Ruparel v. Canada (Minister ofEmployment and Immigration), (FC), [1990] 3 F.C. 615; Re B.C. Motor Vehicle Act, (SCC), [1985]2 S.C.R. 486; Reference re Upper Churchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297; Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Placer Dome Canada Ltd. v.

Ontario (Minister of Finance), 2006 SCC 20,[2006] 1 S.C.R. 715; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; R. v.Morgentaler, (SCC), [1993] 3 S.C.R. 463; R. v. Butler, (SCC), [1992] 1 S.C.R. 452; Harper v. Canada(Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Reference re Prov. Electoral Boundaries (Sask.), (SCC), [1991]2 S.C.R. 158; Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76; Haig v. Canada (Chief Electoral Officer), (SCC), [1993] 2 S.C.R. 995; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; Stoffman v.

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APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J. and Laskin and Brown JJ.A.), 2015 ONCA 536 , 126 O.R. (3d) 321, 338 O.A.C. 218, 388 D.L.R. (4th) 1, 340 C.R.R. (2d) 323, [2015] O.J. No. 3820 (QL), 2015 CarswellOnt 10870 (WL

Can.), setting aside a decision of Penny J., 2014 ONSC 907 , 119 O.R. (3d) 662, 372 D.L.R. (4th) 681, 310 C.R.R. (2d) 17, [2014] O.J. No. 2098 (QL), 2014 CarswellOnt 5850 (WL Can.). Appeal allowed, Côté and Brown JJ. dissenting. Shaun O’Brien and Amanda Darrach , for the appellants. Sean Gaudet and Gail Sinclair , for the respondent. Jean-Vincent Lacroix and Dominique A. Jobin , for the intervener the Attorney General of Quebec. Bradley E. Berg and Max Shapiro , for the intervener the Canadian American Bar Association. Sean Sutherland and Colin Feasby , for the intervener the Canadian Expat Association.

Louis Century and Cheryl Milne , for the intervener the David Asper Centre for Constitutional Rights. Mark J. Freiman and Jameel Madhany , for the intervener the Canadian Civil Liberties Association. Avvy Yao-Yao Go , for the intervener the Chinese and Southeast Asian Legal Clinic. Brendan van Niejenhuis , Michael Sobkin and Stephen Aylward , for the intervener the British Columbia Civil Liberties Association. The judgment of Wagner C.J. and Moldaver, Karakatsanis and Gascon JJ. was delivered by The Chief Justice — I.

Overview [ 1 ] Voting is a fundamental political right, and the right to vote is a core tenet of our democracy. Its primacy is entrenched in s. 3 of the Canadian Charter of Rights and Freedoms , which states: “Every 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.” Any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification. [ 2 ] Canada’s history has been one of progressive enfranchisement.

The right to vote in federal elections was originally restricted to property-owning men aged 21 or older, but the franchise has gradually been extended to include almost all citizens aged 18 or older. Women, racial minorities, individuals formerly described as having a “mental disease”, penitentiary inmates, and Canadian residents living abroad in service of Canada’s armed forces and public administration were once excluded but now have the right to vote. [ 3 ] This case calls into question one of the last restrictions on the right to vote in federal elections: residence.

Canadian citizens who reside abroad for less than five consecutive years and who intend to return to Canada maintain their right to vote in Canadian federal elections. But once non-resident citizens have lived abroad beyond that five-year period, they are disenfranchised. [ 4 ] The respondent, the Attorney General of Canada (“AGC”), concedes that the limit on the voting rights of non- residents breaches s. 3 of the Charter . It follows that the central question in this appeal is whether this is a reasonable limit that can be demonstrably justified under s. 1 . I conclude that it cannot.

The vague and unsubstantiated electoral fairness objective that is purportedly served by denying voting rights to non-resident citizens simply because they have crossed an arbitrary five-year threshold does not withstand scrutiny. [ 5 ] In particular, the AGC has failed to show that limiting the voting rights of non-resident citizens is minimally impairing. There is little to justify the choice of five years as a threshold or to show how it is tailored to respond to a specific problem.

It is also clear that the measure improperly applies to many individuals with deep and abiding connections to Canada and to Canadian laws, and that it does so in a manner that is far broader than necessary to achieve the electoral fairness objective advanced by the AGC. The disenfranchisement of these citizens not only denies them a fundamental democratic right, but also comes at the expense of their sense of self-worth and their dignity. These deleterious effects far outweigh any speculative benefits that the measure might bring about. [ 6 ] Accordingly, I would allow the appeal.

The limit on the voting rights of non-residents violates s. 3 of the Charter and is not saved by s. 1 . II. Background [ 7 ] This appeal stems from a challenge by two Canadian citizens, Dr. Gillian Frank and Jamie Duong, the appellants in this Court, of the denial of their right to vote in a Canadian federal election on the basis that they have lived abroad for longer than five years. [ 8 ] Dr. Frank resides in the United States. He lived in Toronto until the age of 21.

After having obtained a university degree in Canada, he was accepted on a full scholarship for graduate studies at Brown University in Providence, Rhode Island. He is currently completing post-doctoral studies and living in Princeton, New Jersey. Dr. Frank’s wife is also a Canadian citizen, and the members of his immediate family live in Toronto. He travels on a Canadian passport and is not entitled to vote in the United States. Dr. Frank has applied, as yet unsuccessfully, for work in Canada.

He states that he would return to Canada without hesitation if he were to find a suitable academic position in this country.

[ 9 ] Mr. Duong was born in Montréal. He attended Cornell University in Ithaca, New York, where as a student he worked part time on campus at a job that he subsequently converted into a permanent position. He currently lives in Fairfax, Virginia. The members of his immediate family live in Montréal, and he visits Canada regularly. He also expects partial ownership of several family-owned properties in Canada to be transferred to him in the near future. Mr. Duong has applied, without success, for a suitable position in Canada. Like Dr. Frank, Mr.

Duong expresses a desire to return to Canada should he find appropriate employment. [ 10 ] Dr. Frank and Mr. Duong both tried to vote in the Canadian federal election in May 2011. Both were notified that they were not entitled to receive a ballot, because they had been residing outside Canada for more than five years. In response, they challenged the provisions of the Canada Elections Act , S.C. 2000, c. 9 (“ Act ”), that deny them the right to vote — i.e., ss. 11 (d), 222(1) (

b) and (c), 223(1) (f), 226 (

f) and the word “temporarily” in ss. 220 , 222(1) and 223(1) (e). Specifically, the appellants argue that the requirements of residing outside Canada for less than five consecutive years and of intending to resume residence in Canada in the future unjustifiably violate their rights under s. 3 of the Charter . [ 11 ] The Act is a comprehensive statute which regulates federal elections in Canada. Its central purposes are to enfranchise all persons who are entitled to vote, and to protect the integrity of the democratic process ( Opitz v. Wrzesnewskyj , 2012 SCC 55 , [2012] 3 S.C.R. 76, at paras. 35 and 38 ).

In contrast to s. 3 of the Charter , which enshrines the constitutional right of every Canadian citizen to vote, the Act establishes specific rules with respect to qualification as an elector and to voting entitlements, as well as voting mechanisms, in pursuit of its broad enfranchising purpose. [ 12 ] Under the Act, everyone who is a Canadian citizen and is 18 or older is qualified as an elector ( s. 3 ). A person who is qualified as an elector is entitled to vote at the polling station for the polling division in which he or she is ordinarily resident ( s. 6 ).

In other words, a qualified elector is entitled to vote at the place in Canada where he or she ordinarily resides. This is known as the “residence requirement”. [ 13 ] Despite the residence requirement, there is an existing legislative scheme which allows certain non-resident citizens to vote from abroad by means of a “special ballot” ( s. 127 ). The special ballot procedure is the only mechanism by which citizens who do not reside in Canada can vote. [ 14 ] Eligibility for voting by way of special ballot is set out in s. 11 of the Act , which reads: Any of the following persons may vote in accordance with

Part 11: (

a) a Canadian Forces elector; (

b) an elector who is an employee in the federal public administration or the public service of a province and who is posted outside Canada; (

c) a Canadian citizen who is employed by an international organization of which Canada is a member and to which Canada contributes and who is posted outside Canada; (

d) a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident ; (

e) an incarcerated elector within the meaning of that Part; and (

f) any other elector in Canada who wishes to vote in accordance with that Part. [ 15 ] This appeal concerns the limit on non-residents’ voting rights that is established in s. 11 (

d) of the Act . This limit is also mentioned in the “Special Voting Rules” set out in

Part 11 of the Act , which govern the special ballot procedure.

Part 11 requires that the Chief Electoral Officer maintain a register of electors who are temporarily resident outside Canada and who have applied for a special ballot.

To be included in the register, these non-resident electors must have previously resided in Canada, must have been residing outside Canada for less than five consecutive years immediately before making the application, and must intend to resume residence in Canada in the future (s. 222(1)). [ 16 ] The Act establishes exceptions to the five-year rule for members of the Canadian Forces, including individuals employed as teachers in or support staff for Canadian Forces schools, who are posted outside Canada; employees in the federal public service or that of a province who are posted outside Canada; employees of an international organization of which Canada is a member who are posted outside Canada; and any elector who lives with a Canadian citizen in one of these exempted groups ( ss. 11 , 191 (

d) and 222(2)). Any other citizen who has resided outside Canada for five consecutive years or more will have his or her name deleted from the register (s. 226(f)). [ 17 ] The combined effect of ss. 11 (

d) and 222 of the Act is that — subject to the exceptions listed in s. 222(2) — a Canadian citizen who has resided abroad for five years or more is not entitled to vote in a federal election unless and until he or she resumes residence in Canada. III. Judicial History A. Ontario Superior Court of Justice, 2014 ONSC 907 , 119 O.R. (3d) 662 [ 18 ] The appellants applied to the Ontario Superior Court of Justice for a declaration that the provisions of the Act which deny them their right to vote are unconstitutional and of no force or effect.

Penny J. found that the impugned provisions infringe s. 3 of the Charter and cannot be saved under s. 1 . The government had asserted that the objectives of the limit were generally to ensure fairness to resident voters and to maintain the proper functioning and the integrity of Canada’s electoral system. Penny J. expressed concern over

the rhetorical nature of those objectives, which were not substantiated by concrete evidence. Out of prudence, however, he declined todismiss them outright and proceeded to the proportionality inquiry from R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. Hefound that the stated objectives failed at each step of the analysis, and made an immediate declaration of invalidity. B. Court of Appeal for Ontario (Strathy C.J.O., Brown J.A. Concurring; Laskin J.A. Dissenting), 2015 ONCA 536, 126 O.R. (3d)321 [19] A majority of the Ontario Court of Appeal allowed the appeal.

Because the AGC was now conceding that theimpugned legislation breaches s. 3 of the Charter, the appeal turned entirely on whether the violation can be justified under s. 1. [20] In the Court of Appeal, the AGC reframed the legislative objectives significantly, arguing that “the residencyrequirement fulfills the pressing and substantial objective of preserving the social contract at the heart of Canada’s system ofconstitutional democracy” (para. 51).

The AGC explained that the social contract ensures that citizens are subjectively connected toCanada through their knowledge and affiliation, and also objectively connected through citizenship responsibilities and the duty to obeydomestic laws. Strathy C.J.O., writing for the majority, relied heavily on this Court’s decision in Sauvé v.

Canada (Chief ElectoralOfficer), 2002 SCC 68, [2002] 3 S.C.R. 519 (“Sauvé #2”), to find strong support for the social contract both in political theory and in thisCourt’s jurisprudence, and to conclude that preserving it was a valid objective for the purposes of the s. 1 analysis. [21] Turning to the proportionality inquiry of the Oakes test, Strathy C.J.O. found that the impugned provisions areproportionate to the objective.

In his view, excluding non-resident Canadians from the franchise strengthens the social contract andenhances the legitimacy of laws; he therefore found that the impugned provisions are rationally connected to the social contractobjective. He determined that the five-year limit falls within the range of reasonable policy choices that were available to Parliament andis therefore minimally impairing.

Finally, he concluded that there is proportionality between the salutary and deleterious effects of thelaw, in large part because non-resident citizens can move back to Canada at any time and thus regain their right to vote. As the limit inquestion satisfies all three steps of the proportionality analysis from Oakes, the majority of the Court of Appeal concluded that theviolation of s. 3 of the Charter is justified under s. 1. [22] Laskin J.A., dissenting, would have dismissed the appeal.

He took issue with the AGC’s “social contract” objective,which he considered to amount to a new argument that had been improperly raised on appeal. Further, he was concerned that preservingthe social contract did not in fact correspond to Parliament’s intent at the time the law was enacted. Finally, even if that objective wereassumed to have been validly raised, Laskin J.A. was of the view that it would not be a pressing and substantial objective and would failto satisfy the proportionality requirements of the Oakes test. IV.

Issue [23] This appeal raises the issue of the constitutionality of the provisions of the Act that limit the right to vote of non-residents. The AGC originally took the position that the residence requirement constitutes an internal limit on the right to vote. On thatbasis, she claimed there was no breach of s. 3 of the Charter. However, the AGC has now conceded that the impugned provisions dobreach s. 3 of the Charter. The central question in the appeal is therefore whether this breach can be justified under s. 1. V. Analysis A.

Right to Vote [24] Since context is the key to understanding the scope of a limit on a Charter right, I will begin by discussing thenature of the right to vote and the role of residence in our electoral system in order to lay a proper foundation for the justification analysis(Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 3). [25] The right of every citizen to vote lies at the heart of Canadian democracy (Sauvé #2, at para. 1; Opitz, at para. 10).

InSauvé #2, a seminal decision on the right to vote, this Court reviewed the nature and purpose of s. 3 at length before striking downlegislation which prevented inmates serving sentences of two years or more from voting in federal elections. McLachlin C.J., writing forthe majority, stressed the critical importance of a broad and purposive

interpretation of the right to vote. She stated that the framers of theCharter had “signaled the special importance of this right not only by its broad, untrammeled language, but by exempting it fromlegislative override under s. 33’s notwithstanding clause” (para. 11). As a result, any intrusions on this core democratic right are to bereviewed on the basis of a stringent justification standard (para. 14). [26] The central purpose of s. 3 is to ensure the right of each citizen to participate meaningfully in the electoral process(Figueroa v.

Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, at paras. 25-26). Civic participation is fundamentallyimportant to the health of a free and democratic society. Democracy demands that each citizen have a genuine opportunity to participatein the governance of the country through the electoral process. If this right were not protected adequately, ours would not be a truedemocracy (Figueroa, at para. 30). [27] Therefore, a broad

interpretation of s. 3 enhances the quality of our democracy and strengthens the values on whichour free and democratic state is premised (Figueroa, at para. 27). As a corollary, an overly narrow

interpretation of the right to votewould diminish the quality of democracy in our system of government. As this Court observed in Sauvé #2, a government that restrictedthe franchise to a select group would effectively weaken the legitimacy of the country’s democratic system and undermine its own claimto power (para. 34). B. Role of Residence in the Canadian Electoral System [28] The underlying theme of this appeal is the role of residence in Canada’s electoral system.

Although the AGC hasconceded that the impugned provisions breach s. 3 of the Charter, her reliance on the social contract theory nevertheless raises importantquestions relating to the function of residence in the electoral system. In my view, residence can best be understood as an organizingmechanism for purposes of the right to vote. It is an important device which underpins our geographically determined, constituency-

based system of electoral representation. However, this instrumental necessity does not elevate residence to an essential requirement ofthe Charter right to vote. [29] In clear language, the Charter tethers voting rights to citizenship, and citizenship alone.

Section 3 does not mentionresidence. Citizenship is the defining requirement of the right to vote, and the choice of the framers of the Charter to omit the residencerequirement as an element of this core democratic right is significant. [30] Further, the Act provides for exemptions from the residence requirement for citizens working abroad in Canada’spublic service or in or for the Canadian Forces, for citizens employed abroad by international organizations which have a specifiedconnection to Canada, and for citizens living with members of any of these groups.

These existing exemptions contradict the view thatresidence is essential to the right to vote. [31] It follows that a broad and purposive

interpretation of s. 3 does not allow for residence to operate as an internal limiton the right to vote. As this Court held in Sauvé #2, the ambit of the s. 3 right to vote “should not be limited by countervailing collectiveconcerns . . . These concerns are for the government to raise under s. 1 in justifying the limits it has imposed on the right” (para. 11). Thisdoes not of course foreclose the possibility that an infringement of the right to vote could be justified in the context of a reasonable limitsanalysis or that legislative restrictions on the right to vote are necessarily unconstitutional.

What it does mean, however, is that limits onthe right to vote must, if raised, be justified under s. 1, and not indirectly incorporated into the scope of the right itself. Accordingly,residence is not an essential requirement of the right to vote; rather, it is a countervailing consideration which must be justified by theAGC under s. 1 of the Charter. [32] Nor, in my view, does the jurisprudence establish that residence is essential to the Charter right to vote. In no casehas this Court held that residence is an essential and implicit requirement of the right to vote.

On the contrary, as I mentioned above, it isclear from the jurisprudence that a broad and liberal

interpretation is particularly critical in the case of the right to vote and that s. 3 mustbe “construed as it reads” (Sauvé #2, at para. 11). And although this Court described residence as a “fundamental requirement” in Opitz,it did so in relation to the definition of the statutory entitlement to vote set out in s. 6 of the Act, not to the scope of the right to vote unders. 3 of the Charter (para. 32). Moreover, the issue in Opitz was whether an election should be set aside because of administrative errors,not the scope of the right to vote in the context of a Charter challenge to electoral legislation.

I therefore do not take Opitz to stand forthe proposition that residence is an essential requirement of the right to vote under the Charter. [33] In any event, the role of residence in our electoral system must be understood in its historical context. Therequirement emerged at a time when citizens were generally unable to travel as easily and extensively as they do today and tended tospend their lives in one community. At that time, the right to vote was linked to the ownership of land, and only male property ownerscould vote.

The residence requirement was designed, in part, to prevent “plural voting”, that is, to prevent a person who owned propertyin several ridings from casting a vote in each of them (Haig v. Canada (Chief Electoral Officer), (SCC), [1993] 2 S.C.R.995, at p. 1052). [34] Today, in contrast, we live in a globalized society. The ability of citizens not only to move, but to remain connectedand maintain communications in so doing, is unprecedented. Many Canadians live abroad, and many do so for five years or more.

Theapplication judge cited evidence showing that in 2009, approximately 2.8 million Canadians — or 8 percent of Canada’s population atthe time — had been living abroad for one year or more, and that there were well over one million Canadians to whom the non-residencelimit in the Act applied. He also noted that the results of one research project show that non-resident Canadian citizens maintain strongconnections, both family- and employment-related, to Canada, as well as a strong sense of belonging.

According to Penny J., theevidence revealed that, in addition to socio-cultural connections, many non-residents maintain strong economic ties to Canada bycontributing to social insurance programs, paying taxes and receiving benefits. Further, he noted that 60 percent of surveyed respondentswere solely Canadian citizens and, if denied the right to vote in Canada, would be unable to vote in any other country (see applicationjudge’s reasons, at paras. 19-30). [35] In sum, the world has changed. Canadians are both able and encouraged to live abroad, but they maintain closeconnections with Canada in doing so.

The right to vote is no longer tied to the ownership of property and bestowed only on selectmembers of society. And citizenship, not residence, defines our political community and underpins the right to vote. C. Justification Analysis [36]

Section 1 of the Charter provides: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [37] The impugned provisions of the Act are clearly prescribed by law (Oakes, at p. 135). The question remains whetherthe limit on non-residents’ voting rights can be demonstrably justified in a free and democratic society. [38] Two central criteria must be met for a limit on a Charter right to be justified under s. 1.

First, the objective of themeasure must be pressing and substantial in order to justify a limit on a Charter right. This is a threshold requirement, which is analyzedwithout considering the scope of the infringement, the means employed or the effects of the measure (R. v. K.R.J., 2016 SCC 31, [2016]1 S.C.R. 906, at para. 61). Second, the means by which the objective is furthered must be proportionate. The proportionality inquirycomprises three components: (

i) rational connection to the objective, (ii) minimal impairment of the right, and (iii) proportionalitybetween the effects of the measure (including a balancing of its salutary and deleterious effects) and the stated legislative objective(Oakes, at pp. 138-39; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, at para.139; K.R.J., at para. 58).

The proportionality inquiry is both normative and contextual, and requires that courts balance the interests ofsociety with those of individuals and groups (K.R.J., at para. 58; Oakes, at p. 139). [39] The onus in the s. 1 inquiry is on the party seeking to uphold the limit, that is, in the case at bar, the AGC (Oakes, atpp. 136-37). To discharge this burden, the AGC must satisfy the civil standard of proof on a balance of probabilities (Oakes, at p. 137;

RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at paras. 137-38). [40] I appreciate that my colleagues, in dissent, have a different vision of the proper judicial approach to the reasonablelimits analysis that is based on their reading of the language of s. 1 itself. This difference in opinion is largely semantic in nature, drivenby a disagreement as to whether the term that should be used is “infringement” or “limit”. Specifically, my colleagues would prefer thatthe term “infringement” apply to a limit only once it has been determined that the limit cannot be justified under s. 1.

This approach isnovel, since a cursory review of the jurisprudence reveals that the terms “infringement” and “limit” are often used interchangeably. ThisCourt has consistently asked whether infringements can be justified under s. 1, and the term “infringement” has not been restricted suchthat it applies only to unjustified limits on Charter rights (see, e.g., Oakes, at p. 129; Harvey v. New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876, at paras. 32 and 51; RJR-MacDonald, at paras. 125-26; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493, at para. 108; Thomson Newspapers Co. v.

Canada (Attorney General), (SCC), [1998] 1S.C.R. 877, at para. 87; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, at para. 48; Sauvé #2, at paras. 7and 10; Figueroa, at para. 16; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British ColumbiaComponent, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 37; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101,at para. 126; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 94; K.R.J., at para. 79; B.C. Freedom ofInformation and Privacy Association v.

British Columbia (Attorney General), 2017 SCC 6, [2017] 1 S.C.R. 93, at paras. 58-59). [41] Given that my colleagues’ approach would constitute a departure from decades of Charter jurisprudence, was neitherraised nor argued at any stage of these proceedings and, above all, need not be considered in order to dispose of this appeal, I will declineto discuss the merits of their position on this point. [42] To be clear, then, this case calls for an approach which — far from distorting the analysis, as my colleagues allege— is no more than the application of settled law with respect to how limits on Charter rights can be justified.

As I explained above, thisCourt has developed an analytical approach requiring that two distinct questions be answered: the first is whether a Charter right hasbeen infringed, while the second is whether that infringement can be justified in accordance with the Oakes framework (see, e.g.,Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, at p. 178; Sauvé #2, at para. 10; Bedford, atparas. 125-28).

This analytical separation is necessary, in part, because the burden of proof is attributed differently: the rights claimanthas the burden of establishing an infringement of his or her Charter right, but it is the state that must justify the infringement (Andrews,at p. 178; Harvey, at para. 30).

With respect to the s. 3 right to vote in particular, any balancing of interests must be addressed in thecontext of the s. 1 justification framework, as opposed to operating as an internal limit on the right (Harvey, at paras. 29-30; Sauvé #2, atpara. 11). [43] The jurisprudence also requires that a stringent standard of justification be applied when the government seeks tojustify a limit on the s. 3 right to vote (Sauvé #2, at para. 14; Figueroa, at para. 60; Opitz, at para. 35).

This does not necessarily meanthat the government bears a heavier burden in the context of this right than in the context of other Charter rights; as I mentioned above,the standard is always proof on a balance of probabilities. What it does mean is that reviewing courts must examine the government’sproffered justification carefully and rigorously in this context rather than adopting a deferential attitude.

Deference may be appropriate inthe case of a complex regulatory response or a decision involving competing social and political policies, but it is not the appropriateposture for a court reviewing an absolute prohibition of a core democratic right (Sauvé #2, at para. 13; Alberta v.

Hutterian Brethren ofWilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 37). [44] Although this Court has in the past held that it owes a “natural attitude of deference” to Parliament when dealingwith election legislation, it did so in referring specifically to the nuanced choices made by Parliament in selecting and implementingCanada’s electoral model (R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527, at para. 9; Harper v. Canada (Attorney General), 2004 SCC33, [2004] 1 S.C.R. 827, at para. 87).

In the instant case, far from a complex decision concerning the choice and implementation ofCanada’s electoral model — such as legislation establishing advertising spending limits for third parties in election campaigns, as inHarper, or prohibiting the broadcasting of results on election day, as in Bryan — the provisions at issue reflect, as the AGC concedes,Parliament’s decision to disenfranchise long-term non-resident citizens.

McLachlin C.J.’s unequivocal statement on the approach tojustification in Sauvé #2 is therefore apposite: “The right to vote is fundamental to our democracy and the rule of law and cannot belightly set aside. Limits on it require not deference, but careful examination. This is not a matter of substituting the Court’s philosophicalpreference for that of the legislature, but ensuring that the legislature’s proffered justification is supported by logic and common sense”(para. 9).

In the case at bar, citizens are subject to an absolute denial of their Charter right to vote after crossing the five-year non-residence threshold. Accordingly, a stringent standard of justification must be applied to the AGC’s proffered justification. [45] As I will explain below, the limit in question, which restricts the time that a voter can have been absent from Canadato five years and requires that he or she have a fixed intention to return to Canada, cannot be justified under s. 1, primarily because it isnot minimally impairing of the rights at issue.

(1) Pressing and Substantial Objective [46] A particularly contentious issue in this appeal concerns the legislative objective which is ostensibly being furtheredby the limit on the voting rights of long-term non-resident citizens. The integrity of the justification analysis requires that the legislativeobjective be properly stated. The relevant objective is that of the infringing measure, not, more broadly, that of the provision (K.R.J., atpara. 62; Toronto Star, at para. 20; RJR-MacDonald, at para. 144).

The critical importance of articulating the measure’s purpose at anappropriate level of generality has also been repeatedly affirmed by this Court (see, e.g., R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R.485, at para. 28). If a legislative purpose is stated too broadly, the result may be to exaggerate the importance of the objective andcompromise the analysis (RJR-MacDonald, at para. 144).

Conversely, if the measure’s purpose is construed too narrowly, its articulationmay merely reiterate the means chosen to achieve it (K.R.J., at para. 63). [47] This task is difficult in the case at bar because the AGC has framed the legislative objective inconsistently from onestage of the proceedings to another. Before the application judge, the AGC advanced two pressing and substantial objectives: to preventunfairness for Canada’s resident voters (the “fairness objective”) and to maintain the proper functioning and integrity of Canada’selectoral system.

In the Court of Appeal, however, the AGC restated the objectives, arguing primarily that the system “promotes the

fairness of the electoral process by protecting the social contract lying at the heart of Canada’s constitutional democracy” (C.A. reasons, at para. 90). [ 48 ] The social contract, famously espoused in the work of the 18th century philosopher Jean-Jacques Rousseau, is purportedly manifested in the connection between the electors and the elected; citizens have a right to elect lawmakers, and a parallel duty to obey the laws enacted by their elected representatives.

The majority of the Court of Appeal accepted that preserving the social contract is a pressing and substantial objective for the purposes of the s. 1 analysis. In the majority’s opinion, “[p]ermitting all non- resident citizens to vote would allow them to participate in making laws that affect Canadian residents on a daily basis, but have little to no practical consequence for their own daily lives. This would erode the social contract and undermine the legitimacy of the laws” (para. 6). [ 49 ] I cannot accept that preserving the social contract is a pressing and substantial objective for the purposes of s. 1.

In my view, this articulation of the objective is based on a misinterpretation of this Court’s decision in Sauvé #2 , and superficially and vaguely evokes a political philosophy which is ill-suited to withstand the rigours of the s. 1 justification analysis. [ 50 ] The majority of the Court of Appeal relied, as does the AGC, on the following isolated passage from Sauvé #2 in support of the argument that preserving the social contract is a pressing and substantial objective: Denying penitentiary inmates the right to vote misrepresents the nature of our rights and obligations under the law and consequently undermines them.

In a democracy such as ours, the power of lawmakers flows from the voting citizens, and lawmakers act as the citizens’ proxies. This delegation from voters to legislators gives the law its legitimacy or force. Correlatively, the obligation to obey the law flows from the fact that the law is made by and on behalf of the citizens. In sum, the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. As a practical matter, we require all within our country’s boundaries to obey its laws, whether or not they vote.

But this does not negate the vital symbolic, theoretical and practical connection between having a voice in making the law and being obliged to obey it. This connection, inherited from social contract theory and enshrined in the Charter , stands at the heart of our system of constitutional democracy . [Emphasis added; at para. 31.] [ 51 ] Their reliance on this passage is selective and, in my view, misinterprets the basic thrust of Sauvé #2 , read in its entirety.

McLachlin C.J. was describing the social contract in the context of the proportionality analysis, not in articulating a pressing and substantial objective. She adverted to the social contract theory in order to buttress a fundamentally inclusive view of voting rights in Canada, and in rejecting the existence of a rational connection between denying penitentiary inmates the right to vote and enhancing respect for the law.

The social contract theory was thus used to anchor the proposition that disenfranchising citizens is anti-democratic and internally contradictory; the power of government flows from its citizens, and it is wrong for the government to use that power to disenfranchise those same citizens ( Sauvé #2 , at para. 32 ). As Laskin J.A. noted in dissent in the case at bar, far from offering a compelling rationale for disenfranchising Canadian citizens, Sauvé #2 stands as an uncompromising defence of the right of every Canadian citizen to vote. [ 52 ] Moreover, the reasons in Sauvé #2 must be read in their entirety.

McLachlin C.J. noted later in them that, even though the social contract requires citizens to obey the laws created by way of the democratic process, failure to follow those laws does not nullify a citizen’s membership in the Canadian polity: “[W]hether a right is justifiably limited cannot be determined by observing that an offender has, by his or her actions, withdrawn from the social compact” ( Sauvé #2 , at para. 47 ).

The right to vote is a fundamental democratic right, not a mere privilege, and cannot be denied to citizens on the basis that they have chosen to “opt out” of community membership by offending, or, I would add, by residing outside Canada ( Sauvé #2 , at para. 42 ). It might in fact be argued that a citizen who has violated our most serious criminal laws has withdrawn from the social contract to a greater extent than has, for example, a citizen who resides outside Canada on a long-term basis.

Be that as it may, Sauvé #2 dictates that deeming that a citizen has “withdrawn” from the social contract is not a legitimate basis for denying him or her the right to vote. [ 53 ] Perhaps most importantly, the social contract theory is just that: a theory. Preserving it is not an objective. Although moral philosophy doubtlessly has some role to play in the legislative sphere, it cannot readily serve as a source for a pressing and substantial objective in relation to an infringement of Charter rights, and any argument to that effect will require careful scrutiny.

For the purposes of the s. 1 analysis, the “social contract” model that has been advanced in this case is devoid of content, and problematically vague. It also has analytical failings: it is at once too general, providing no meaningful ability to analyze the means employed to achieve it, and too narrow, effectively collapsing any distinction between legislative means and ends.

This latter point was helpfully illustrated by the intervener David Asper Centre for Constitutional Rights: “[T]he objective (limiting the right to vote to citizens sufficiently subjected to law) and the means (the selection of those citizens who are sufficiently subjected to law) are mutually defined” (I.F., at para. 13).

In other words, if we were to accept preserving the social contract as a pressing and substantial objective, then the legislation would have no real objective other than the measure itself: limiting the voting rights of long-term non-resident Canadian citizens. [ 54 ] Thus, I reject the argument that preserving the social contract suffices as a pressing and substantial objective for the purposes of the s. 1 analysis. But this does not mean the government has failed to identify a sufficiently important objective.

If we disregard the use of the expression “social contract”, which the AGC concedes is a “convenient shorthand” in any event, she has centrally and consistently asserted that the voting restrictions in question advance the “related” objective of maintaining the fairness of the electoral system to resident Canadians (R.F., at paras. 1 and 55; transcript, at pp. 82 and 84-85). [ 55 ] I am willing to accept that maintaining the fairness of the electoral system to resident Canadians is a sufficiently important legislative objective to ground the s. 1 analysis.

This Court has in the past accepted that variations on promoting electoral fairness and maintaining the integrity of the electoral process are pressing and substantial objectives in the election law context (see Bryan , at paras. 17-19 ; Harper , at paras. 91-92 ; Harvey , at para. 38 ).

While I am aware that the purpose of the impugned provisions is to promote greater electoral fairness for only some Canadians — as opposed to enhancing the health of the electoral system in general — I accept that maintaining the integrity and fairness of the electoral system can be a pressing and substantial concern even if the measures taken to achieve that objective impair the democratic rights of other citizens ( Harper , at para. 91 ; Harvey , at para. 38 ; Bryan , at paras. 33-34 ).

[56] The objective of maintaining the fairness of the electoral system is significantly different from that of preserving thesocial contract. While the latter involves a vague political philosophy, the former raises concerns with respect to the integrity of theelectoral system and is not so broad or symbolic as to be immune from review. The fairness objective raised by the AGC and themechanisms for interpreting it are sufficiently precise for the Court to go ahead with the justification analysis.

Even though theimportance of ensuring the fairness of the electoral system and, in so doing, maintaining public confidence in it may be difficult to proveempirically, this may nevertheless be a pressing and substantial objective in the election law context (Bryan, at paras. 19 and 22). [57] The language of the impugned provisions reflects an intention to establish a connection between non-residentelectors and Canada, either through the nature of the elector’s employment or by limiting the accepted period of non-residence andensuring that the elector intends to resume residence in Canada (s. 11 of the Act).

I accept that these requirements are intended to advancethe overarching objective of maintaining the fairness of the electoral system to resident electors.

The AGC argues that maintaining thefairness of the electoral system to resident voters is advanced by ensuring that non-resident voters are sufficiently connected to Canada interms both of the extent of their subjective commitment to the country and of the extent to which they are affected by Canadian laws.These two aspects substantially reflect the fairness objective that was articulated by the AGC in her original application, which raisedsuch concerns as that non-residents are not as well versed in local issues and that this might unfairly influence the results of elections,and that non-residents no longer have the same connection to Canada in terms of citizenship obligations, whereas resident voters remainsubject to all Canadian laws. [58] I note in passing that accepting the electoral fairness objective does not violate the rule against shifting objectives, apoint on which the majority and the dissent diverged in the Court of Appeal.

According to this rule, a court must consider onlyParliament’s intention at the time the legislation was enacted and must not try to identify new objectives flowing from an updatedinterpretation of the provision (see R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 335; R. v. Butler, (SCC), [1992] 1 S.C.R. 452, at p. 494; R. v. Zundel, (SCC), [1992] 2 S.C.R. 731, at p. 761). I am satisfiedthat the electoral fairness objective corresponds to the legislative intent at the time the provisions were enacted.

Although the evidencefrom the parliamentary debate is not extensive, it shows that when Parliament passed the legislation in 1993, a concern was expressedthat the right to vote should be restricted to those non-residents who have “some degree of connection with the country” and with theirelectoral district (C.A. reasons, at para. 101). The legislation was thus designed to ensure a sufficient connection between non-residentelectors and Canada and, out of a concern for electoral fairness, to prevent non-resident electors from voting without restrictions.

This isnot a new objective that has been invented on the basis of how the legislation is applied today.

(2) Rational Connection [59] The question at the first step of the proportionality inquiry is whether the measure that has been adopted is rationallyconnected to the objective it was designed to achieve. The rational connection step requires that the measure not be “arbitrary, unfair, orbased on irrational considerations” (Oakes, at p. 139). Essentially, the government must show that there is a causal connection betweenthe limit and the intended purpose (RJR-MacDonald, at para. 153).

In cases in which a causal connection is not scientifically measurable,one can be made out on the basis of reason or logic, as opposed to concrete proof (RJR-MacDonald, at para. 154; Toronto Star, at para.25). [60] In the instant case, the AGC must show that the infringement of non-residents’ voting rights is rationally connectedto the legislative objective of ensuring electoral fairness to resident voters. In my view, the AGC has not definitively shown that a limitof any duration would be rationally connected to the electoral fairness objective advanced in this case.

It is not necessary to come to afirm conclusion on this point, however, as the measure clearly fails at the minimal impairment stage (as discussed below). [61] Be that as it may, I would like to comment here on the AGC’s submission that the existence of provincial residencerequirements supports her argument that there is a rational connection between placing a limit on non-residents’ voting rights in federalelections and ensuring electoral fairness to resident voters.

In the AGC’s view, because residence is a requirement for voting in allCanadian provinces and territories and because the validity of such requirements has been upheld in three provincial and territorialcourts, the connection between residence requirements and electoral fairness has been established (Storey v. Zazelenchuk (1984), (SK CA), 36 Sask. R. 103 (C.A.); Reference Re Yukon Election Residency Requirements (1986), (YKCA), 1 Y.R. 23 (C.A.); Anawak v. Nunavut (Chief Electoral Officer), 2008 NUCJ 26, 172 A.C.W.S. (3d) 391). I am not convinced bythis argument.

This appeal does not concern provincial (or territorial) voting rights, and the situation in the provinces is clearlydistinguishable. For instance, a provincial electorate can be significantly smaller and more mobile, a province’s laws do not havecomparable extraterritorial reach, and provincial identity is distinct from national identity. Most importantly, there is no provincialequivalent to citizenship. Thus, the fact that Canadian provinces and territories impose residence as a condition of voter eligibility is oflittle relevance to voting entitlements in federal election law.

In provincial and territorial elections, residence may be used to establish thenecessary connection between the voter and the province or territory. In the context of federal elections, however, Canadian citizenship isitself evidence of the requisite connection. [62] Nor does the fact that residence is a requirement of electoral laws in other Westminster democracies — a point reliedon by the majority of the Court of Appeal — assist the AGC in establishing the requisite rational connection.

The mere fact that ameasure is in effect in other countries is of limited utility in determining whether, in the Canadian context, it is rationally connected tothe specific legislative objective advanced by the AGC. More broadly, the history of the Canadian electoral system is one of progressiveenfranchisement. Canada is an international leader in this respect.

For example, a report adduced in evidence before the application judgeshowed that Canada is one of only four countries, out of 60 democracies surveyed, that does not restrict the right to vote for persons withmental disabilities (see application judge’s reasons, at para. 140). In a similar vein, given that many countries restrict the voting rights ofincarcerated citizens, the result in Sauvé #2 may well have been different if comparisons with other democracies had weighed moreheavily in the analysis.

Yet McLachlin C.J. stated in that case that the fact that other democracies adhere to different conclusionsregarding the enfranchisement of penitentiary inmates “says little a

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