



COURT OF APPEAL FOR ONTARIO

CITATION: Frank v. Canada (Attorney General), 2014 ONCA 485

DATE: 20140623

DOCKET: M43860 (C58876)

Sharpe J.A. (In Chambers)

BETWEEN

Gillian Frank and Jamie Duong

Responding
    Party/Applicants

(Respondents in Appeal)

and

The Attorney General of Canada

Moving
    Party/Respondent

(Appellant in Appeal)

Peter Southey, Gail Sinclair, Peter Hajecek for the
    applicant, The Attorney General of Canada

Shaun OBrien and Amanda Darrach for the respondents,
    Gillian Frank and Jamie Duong

Heard: June 20, 2014

Motion for a stay of the judgment of Mr. Justice Michael A.
    Penny of the Superior Court of Justice dated May 2 and 15, 2014.

[1]

The Attorney General of Canada moves for a stay pending appeal of a
    judgment holding that provisions of the
Canada Elections Act,
S.C.
    2000, c. 9 (the 
Act
), relating to the voting rights of non-resident
    Canadians are too restrictive and extending the vote to all Canadian citizens
    resident outside Canada.

The
Charter
challenge to limits on voting by
    non-residents

[2]

Voting by non-resident citizens has been a feature of Canadian
    elections, in one form or another, since the vote was extended to soldiers in
    World War I. The current regime dates from 1993. The
Act
, s. 11
    provides that the following classes of citizens are eligible to vote by mail
    pursuant to a special procedure found in Part 11 of the Act:

(
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.

[3]

The Part 11 procedure allows the non-resident citizen to register and
    vote by mail in a riding chosen by the voter based on contacts specified in the
    Act.

[4]

The applicants, both resident in the United States for more than five
    years, challenged the denial of the vote to non-resident citizens absent from
    Canada for more than five consecutive years.

The judgment under appeal

[5]

In a lengthy and carefully considered judgment, the application judge
    held that to the extent the
Act
disenfranchised citizens absent from
    Canada for more than five years, it violated their democratic right to vote
    right guaranteed by section 3 of the
Charter:

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

[6]

The application judge struck down s. 11(d) of the
Act
and
    related provisions and replaced the words of s. 11(d) with an elector who
    resides outside of Canada.

[7]

The Attorney General argued that Parliament had a pressing and
    substantial objective to limit non-resident voting pursuant to s. 1 of the
    Charter, namely:

1.

to extend the right to vote to non-resident citizens but not to the
    point of giving rise to unfairness for Canadas resident voters, and

2.

to maintain the proper functioning and integrity of Canadas electoral
    system and system of parliamentary representation.

[8]

The application judge characterized those objectives as being so
    abstract, broad and symbolic that they barely qualified, if at all, as pressing
    and substantial for purposes of s. 1 analysis. However, the application judge
    proceeded to consider whether the limitation on non-resident citizen voting
    satisfied the proportionality test. He concluded that it did not. First, he
    found there was no rational connection between the objectives of fairness and
    avoiding possible election abuses and denying the vote to certain
    non-residents.  Second, he found the five-year limitation overly drastic and that
    less restrictive means were available to achieve the same objectives. Finally,
    the application judge found that the substantial deleterious effect of losing
    the right to vote outweighed what he found to be the tenuous salutary impact of
    the law.

[9]

The application judge refused to stay or temporarily suspend the
    declaration of invalidity. He stated, at para. 159:  An immediate declaration
    of invalidity would create no danger to the public or to the rule of law. Nor
    is this a situation where Parliament will be unable to hold an election due to
    the courts decision. He added that there was no evidence that an election was
    anticipated in the next 12 months.

Events following the judgment

[10]

The
    judgment was handed down on May 2, 2014. On May 11, 2014, four federal
    by-elections were called for June 30, 2014  two in Ontario and two in Alberta.
    Elections Canada immediately announced that the judgment would be complied with
    for all four by-elections and implemented the steps necessary to enable all
    Canadian citizens resident abroad to register and vote. As of June 16, 2014,
    thirteen non-resident citizens registered to vote (although it is not known how
    many of those would have been eligible under the prior regime). One of those
    individuals is the wife of one of the applicants who has already cast her
    ballot.

The Attorney Generals stay motion

[11]

I
    note that Elections Canada was not served with this motion. In my view, it
    should have been served as it would be immediately and directly impacted by the
    effect of a stay. I allowed the motion to proceed as it is apparent from
    correspondence in the record that Elections Canada is fully aware of this
    motion and its legal counsel has outlined the steps Elections Canada could take
    in the event a stay is granted.

[12]

It
    is common ground that to obtain a stay the Attorney General must satisfy the
    familiar three-part test and show:

1.

that there is a
    serious question to be determined;

2.

that irreparable
    harm to the public interest will be suffered should the stay not be granted;
    and

3.

that the balance
    of convenience and public-interest considerations favor a stay.

Serious question to be tried

[13]

This
    appeal will almost certainly be decided on the basis of the s. 1 analysis. I
    share the application judges concern that the objectives identified by the
    Attorney General as being sufficient to justify limiting the right to vote are
    broad, symbolic and rhetorical. In oral argument, counsel insisted that
    Parliaments central concern was election fairness. It is not clear to me how
    denying a citizen the right to vote can be justified on the basis of electoral
    fairness. The objectives identified by the Attorney General obscure what
    appears to me to be the real issue, namely, whether the five year limit on
    non-resident voting can be justified on the basis that it is necessary to
    sustain our geographically determined, constituency-based system of
    representation. As the Supreme Court of Canada observed in
Sauvé v. Canada
    (Chief Electoral Officer),
[2002] 3 S.C.R. 519, the prisoner voting case,
    [v]ague and symbolic objectives render proportionality analysis hollow. 
    However, I do not say that the Attorney General has failed to show that the
    appeal is arguable. While the application judge gave full and fair
    consideration of the s. 1 issue, there does appear to be an argument to be made
    on the other side.

Does the Attorney General have a presumptive or automatic
    right to a stay?

[14]

The
    Attorney General submits that as guardian of the public interest it has
    something approaching an automatic right to a stay due to a presumption of
    irreparable harm and that the balance of convenience favours maintaining the
    status quo. I am unable to accept that proposition. It is inconsistent with
    what occurred in the prisoner voting litigation where a stay was refused
    pending appeal:
Sauvé v. Canada (Chief Electoral Officer),
[1997] 3
    F.C. 628, affd. [1997] 3 F.C. 643 (C.A.), leave to appeal dismissed [1997]
    S.C.C.A. No. 264. It is also inconsistent with the general principle that the
    decision to grant or withhold a stay lies in the discretion of the court.

[15]

The
    Attorney General relies on the following passage from
Bedford v. Canada
    (Attorney General),
2010 ONCA 814, 330 D.L.R. (4th) 162, at para 13:

I must determine whether a stay should be granted in a context
    where (1) there is a
prima facie
right of the government to a full
    review of the first-level decision; (2) the government has a presumption of
    irreparable harm if the judgment is not stayed pending that review; and (3) the
    responding parties must demonstrate that suspension of the legislation would
    provide a public benefit to tip the public interest component of the balance of
    convenience in their favour.

[16]

In
    my view, that passage must be read in its proper context and when so read, it
    is apparent that a court will only grant a stay at the suit of the Attorney
    General where it is satisfied, after careful review of the facts and
    circumstances of the case, that the public interest and the interests of
    justice warrant a stay. In that case, the government filed a substantial volume
    of evidence to demonstrate the very real and tangible harm that would result if
    the matter of prostitution were left completely unregulated. It is clear from
    reading the reasons as a whole that Rosenberg J.A. only granted a stay in
    because, after reviewing and weighing that body of evidence, he was (at para.
    72) satisfied that the moving party ha[d] satisfied irreparable harm test.

[17]

It
    is the case that very often, the public interest in the orderly administration
    of the law will tilt the balance of convenience in favour of maintaining
    impugned legislation pending the final determination of its validity on appeal:
    See, for example
RJR-MacDonald Inc. v. Canada (A.G.),
[1994] 1 S.C.R.
    311 at p. 346

In the case of a public authority, the onus of demonstrating
    irreparable harm to the public interest is less than that of a private
    applicant.  This is partly a function of the nature of the public
    authority and partly a function of the action sought to be enjoined.  The
    test will nearly always be satisfied simply upon proof that the authority is
    charged with the duty of promoting or protecting the public interest and upon
    some indication that the impugned legislation, regulation, or activity was
    undertaken pursuant to that responsibility.  Once these minimal
    requirements have been met, the court should in most cases assume that
    irreparable harm to the public interest would result from the restraint of that
    action.

[18]

However,
    I cannot agree with the Attorney General that there is a
presumption
approaching
    an automatic right to a stay in every case where a court of first instance has
    ruled legislation to be unconstitutional. As Lamer J. also held in
RJR-MacDonald
,
    at p. 343, that the government does not have a monopoly on the public
    interest. See also
Bedford
, at para. 73: The Attorney General does
    not have a monopoly on the public interest, and it is open to both parties to
    rely upon the considerations of public interest, including the concerns of
    identifiable groups.

[19]

In
    my view, it is necessary to carefully review the particular facts and
    circumstances of this case in order to determine whether or not a stay is
    warranted.

Irreparable harm

[20]

Turning
    to the specifics of this case, the Attorney General argues that irreparable
    harm would ensue if a close election were decided by the single vote of a non-resident
    voter ultimately found on appeal not to have the right to vote. I agree that
    such a scenario would amount to irreparable harm.

[21]

However,
    elections decided by a very few votes are rare and in my view, the prospect of
    irreparable harm on that account is fairly remote.

[22]

More
    important, the class of non-resident voters affected by the judgment face
    precisely the same risk of irreparable harm. Once the election has passed, the
    constitutional right to vote in that election will be lost forever. If the
    election is decided by one or a very few votes and if the judgment is affirmed
    on appeal, the stay requested by the Attorney General will have improperly
    disenfranchised voters whose vote could have changed the result of the
    election. That would constitute irreparable harm to the non-resident voters and
    to the public.

[23]

I
    conclude that any risk if irreparable harm claimed by the Attorney General is
    matched by the same risk of irreparable harm to non-resident voters.

[24]

Nor
    do I see merit in the argument that Members of Parliament elected in an
    election governed by the judgment would somehow be different in any material
    way from those previously elected. All Members of Parliament are elected
    according to the law as it stands at the time of the election. There is no air
    of reality to the claim that Members of Parliament elected at by-election under
    a changed or amended law would be seen as different from their parliamentary
    colleagues elected under the earlier law.

[25]

In
    my view, the consideration of irreparable harm is neutral and does not favour
    granting a stay.

Balance of convenience

[26]

In
    my view, the balance of convenience in this case favours refusal of a stay. I
    reach that conclusion for the following reasons.

[27]

First,
    this is not the typical case where a complex statutory scheme or administrative
    apparatus has to be dismantled or constructed in order to give effect to the
    trial judgment. In such cases, the balance of convenience will typically favour
    a stay to avoid the cost and disruption that would flow from implementing a new
    regime based upon a trial judgment that may need to be undone in the event of a
    successful appeal.

[28]

In
    the present case, Elections Canada immediately took the minimal administrative
    steps required to permit non-resident citizens to vote in accordance with the
    decision of the application judge. If a stay is granted, Elections Canada will
    have to undo what it has already done. It is clear from the record that it may
    not be possible for Elections Canada to determine in time for the by-elections
    which non-resident voters who registered after the judgment would have been
    eligible before the judgment. The terms of the stay requested by the Attorney
    General recognize that difficulty and ask for a qualified stay that applies
    unless Elections Canada is unable to determine if those who registered meet
    the pre-judgment requirements. In addition, at least one non-resident has cast
    her ballot. To grant a stay in this case would require Elections Canada to
    rescind the registrations of  up to 13 non-resident electors and claw back the
    vote of a citizen who may well in the end have the right to cast her ballot.
    Granting a stay in this case would not avoid the cost and inconvenience of
    prematurely erecting or dismantling a scheme  it would do the opposite.

[29]

Second,
    this is not a case like
Bedford
where the trial judgment creates a
    legislative void in an area of activity that needs to be regulated in the
    public interest. Allowing the judgment to operate does not create a void or gap
    in Canadas election law. Nor does the judgment radically alter the class of
    those eligible to vote. The
Act
already grants many non-resident
    citizens the right to vote. The judgment under appeal merely extends the right
    to a broader class of non-resident citizens.

[30]

As
    counsel for the applicants pointed out, it is highly unlikely that the judgment
    will produce a floodgate of votes from disinterested and disengaged
    non-resident Canadians. We know that the number of newly qualified non-resident
    voters who had registered as of June 16 is 13 or fewer. The non-resident must
    be both determined and informed. He or she must first register and then obtain
    a ballot. The non-resident voter cannot vote by simply marking an X beside one
    of the listed candidates but must complete a special ballot that requires the
    voter to know and write in the name of an actual candidate.

[31]

I
    conclude that the balance of convenience does not favour granting a stay in
    this case.

Conclusion

[32]

For
    these reasons, I conclude that while there is an arguable appeal, both sides
    demonstrate a similar risk of irreparable harm and the balance of convenience
    weighs in favour of refusing a stay. Accordingly, I dismiss the Attorney
    Generals motion.

[33]

If
    the parties are not able agree as to the costs of this motion, I will receive
    brief written submissions from the respondents within ten days of the release
    of these reasons and from the Attorney General within five days thereafter.

Released:


